Yubin Zhang v. State

Opinion issued November 19, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00190-CR

YUBIN ZHANG, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 14

Harris County, Texas

Trial Court Cause No. 1539505

MEMORANDUM OPINION

A jury convicted Yubin Zhang of the

class B misdemeanor offense of prostitution for knowingly soliciting another in

a public place to engage in sexual conduct for hire. See Tex. Penal Code Ann. §

43.02(a)(2) (Vernon 2003). The trial

court assessed punishment of 180 days’ confinement in the Harris County Jail,

probated for six months, and a one hundred dollar fine. Zhang appeals, claiming the State presented legally

and factually insufficient evidence to show that she solicited another in a

public place. We conclude that the

evidence is sufficient to support the jury’s verdict and therefore affirm.

Background

On July 22, 2008, Officer D. Leal,

Officer M. Williams, and Sergeant Kilty investigated a prostitution

complaint. Officer Leal called the phone

number included in the complaint from the parking lot of the Sun Blossom Cottages,

the identified apartment complex. When Officer

Leal asked if there were any girls available, Zhang told him that girls were

available and asked when he could arrive.

Leal responded that he would arrive immediately and was at the door

within five minutes.

The door to the apartment opened directly

into the parking lot of the complex, and neither gates nor codes controlled

access to the apartment. The apartment

had no sign on the door indicating the presence of a business within. After Officer Leal knocked on the door, Zhang

answered and invited him inside. The

apartment had a small kitchen and a furnished living room, which included a

small table displaying Zhang’s massage license and a curtained area containing

a massage table.

Zhang led Officer Leal to the curtained

area and asked for fifty dollars. When Zhang

asked if Leal had been there before, he replied that a friend told him about

the place; Zhang did not further question Leal.

Zhang told Leal to remove his clothes and Leal complied by removing

everything except his boxers and socks. Zhang

removed the rest of his clothes and proceeded to massage his back for twenty to

twenty-five minutes. Zhang then told

Officer Leal to roll over, at which time she offered to masturbate him. After they agreed on a price of twenty

dollars, Officer Leal signaled the other officers. Shortly thereafter, the officers knocked on

the door, were granted access, and arrested Zhang.

The officers searched the apartment

and found a business card in the kitchen, indicating that Zhang ran a massage

business out of the apartment. The card

noted business operating hours, included a map to the apartment, and indicated

that potential clients should call to make an appointment. Police found two other people in the

apartment, but the apartment had almost no clothing in the closets. The officers testified that, although Zhang

did not operate a registered business, Zhang had converted the apartment into a

business establishment that offered massages and prostitution.

At trial, after the State rested,

Zhang moved for an instructed verdict on the ground that the State failed to

prove that the alleged solicitation occurred in a public place. The trial court found that sufficient

evidence of public place existed to submit the issue to the jury and denied the

motion. The jury found Zhang guilty of

prostitution, and the trial court assessed punishment at 180 days’ confinement,

probated for six months, and a one hundred dollar fine.

Discussion

Zhang contends that the State did not

present legally and factually sufficient evidence to demonstrate that she

solicited Officer Leal in a public place.

In a legal sufficiency review, we view the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789

(1979); Vodochodsky v. State , 158

S.W.3d 502, 509 (Tex.

Crim. App. 2005). The trier of fact is

the sole judge of the weight and credibility of the evidence. Margraves

v. State , 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), overruled on other grounds by Laster v. State , 275 S.W.3d 512 (Tex.

Crim. App. 2009). Thus, when performing

a legal sufficiency review, we may not reevaluate the weight and credibility of

the evidence and substitute our judgment for that of the fact-finder. Dewberry

v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000).

In a factual sufficiency review, we

view all the evidence in a neutral light and only set aside the verdict if the

evidence, though legally sufficient, is so obviously weak that the verdict (1) seems

“clearly wrong and manifestly unjust,” or (2) is against the great weight and

preponderance of the evidence. Watson v. State , 204 S.W.3d 404 , 414–15

(Tex. Crim. App. 2006) (quoting Johnson

v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We cannot conclude that the verdict is “clearly

wrong or manifestly unjust” just because, based on the quantum of evidence

presented, we would have voted to acquit had we been on the jury. See id.

at 417. The record must contain an

objective basis that the great weight and preponderance of the evidence

contradicts the verdict before we can remand based on factual

insufficiency. See id. Since the jury is in

the best position to evaluate the credibility of witnesses, we defer to the

jury’s determinations. Marshall v. State , 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We must also discuss the evidence that,

according to the appellant, best supports her claim and undermines the

verdict. See Sims v. State , 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).

The State charged Zhang under section

43.02(a)(2) of the Penal Code. [1] This subsection requires the prosecution to

prove that the conduct occurred in a public place, whereas subsection

43.02(a)(1) does not so require. When an

indictment facially alleges a complete offense, the State is bound by the

theory alleged in the indictment, and the reviewing court is also bound by this

theory in its sufficiency analysis. Rojas v. State , 986 S.W.2d 241, 246

(Tex. Crim. App. 1998). Thus, even

though the State could have charged and proved the offense under the first

prong of the statute without having to show that the conduct occurred in a

public place, here, the State must prove public place because the information

alleged the offense under the second prong of the statute.

The

Penal Code defines a “public place” as “any place to which the public or a

substantial group of the public has access and includes, but is not limited to

streets, highways, and the common areas of schools, hospitals, apartment

houses, office buildings, transport facilities, and shops.” Tex.

Penal Code Ann. § 1.07(a)(40) (Vernon

Supp. 2008). A place can be public or

not depending on the particular circumstances.

Banda v State , 890 S.W.2d 42,

52 (Tex. Crim. App. 1994). The

relevant inquiry is whether the public has access to the area. See

Loera v. State , 14 S.W.3d 464, 467 (Tex. App.—Dallas 2000, no pet.).

Zhang

contends that the apartment is not a public place, and alternatively, that even

if the apartment is considered a public place, the curtained-off area where the

massage occurred is not a public place. Zhang

observes that a private residence has never been considered a public place. See

Commander v. State , 748 S.W.2d 270, 271 (Tex.

App.—Houston

[14th Dist.] 1988, no pet.) (holding a private residential driveway is not a

public place). But the critical

determination of whether an area is a public place “should only be made after a

careful examination of the facts, and the matter should be resolved on a case

by case basis.” Loera , 14 S.W.3d at 469 .

First, evidence presented at trial

indicates that Zhang did not use the apartment as a private residence, but as a

massage parlor business. Thus, though

one must place a phone call to gain access to the apartment, access was not

limited to private use or to those known by the occupants. In Woodruff

v. State , a jury convicted the appellant of DWI for driving down a road in

Bergstrom Air Force Base while drunk.

899 S.W.2d 443 , 443–44 (Tex. App.—Austin 1995, pet. ref’d). The base had guarded gates, was completely

fenced, and required passes to enter. Id.

at 444 . However, under the right

circumstances anyone could gain access by either obtaining a visitor’s pass

from the public affairs office or by someone they know on base “sponsoring”

them onto the property. Id.

at 445 . The court focused on the “extent

of actual access and not the formalities by which access is granted” in

determining that the air force base was a public place for the purposes of the

statute. Id. ;

see also Lazano v. State , 650 S.W.2d

137, 139 (Tex. App.—Houston

[14th Dist.] 1983, no pet.) (holding requirement that patron pay for entry did

not make theater a private place).

Zhang argues that the facts of this

case are more like those in O’Sullivan v.

Brown , 171 F.2d 199 (5th Cir. 1948), because Officer Leal was never left

alone in the apartment like the visitors in O’Sullivan ,

and the visitors in Woodruff were

allowed to go as they pleased once inside the air force base. Compare

O’Sullivan , 171 F.2d at 200 (holding road at privately-owned aircraft

corporation was not public place because visitors were required to have a pass

and were accompanied by military escort at all times), with Woodruff , 899 S.W.2d at 443–44. The fact that Officer Leal did not have

freedom to move around the apartment unhindered does not mean that the

apartment is not a public place. In

determining whether the State presented sufficient evidence to prove public

place, our focus “should be whether the place is one to which the public has

access.” Leora , 14 S.W.3d at 467 ; see

also State v. Nailor , 949 S.W.2d 357, 359 (Tex. App.—San Antonio 1997, no

pet.) (“The relevant inquiry is whether the public can enter the premises.”). As in Woodruff ,

under the right set of circumstances, any member of the public could gain

access to the apartment. A person with

the phone number, advertised on the business card, could gain access to the

apartment. Officer Leal was admitted

within five minutes of making the call to Zhang. The supervised nature of this access does not

alter the public character of this apartment.

Second, other evidence at trial

showed that Zhang routinely invited members of the public to the apartment. See

Green v. State , 566 S.W.2d 578, 580 (Tex.

Crim. App. 1978). In Green , the fact that the adult bookstore

was open for business strongly indicated that it was a public place. See id.

at 582 ; see also Loden v. State , 561

S.W.2d 2, 3 (Tex. Crim. App. 1978) (“We hold that a bar open to the public for

business is a public place.”). In this

case, Zhang asked if Officer Leal had visited the establishment before, which

indicates that she had other customers and did not recognize them all. Zhang also told Officer Leal that the

business was having a slow day. The

business card found in the apartment stated business hours, phone number, and

location, including a map to the apartment.

Even though the massage parlor was not a registered business, Zhang

displayed a massage license, and the place was open to anyone who called

ahead. Two other persons were present at

the time of Zhang’s arrest, which provides additional evidence that the

apartment was open to the public. See Green , 566 S.W.2d at 580 .

The fact

that Zhang propositioned the officer in a partitioned area of the living room is

also unavailing. The appellant in Green , for example, argued that a

viewing booth in an adult bookstore was not a public place. Id.

The booths were approximately six feet

tall, and full length curtains covered their entries. Id. Officers observed the appellant engaging in

sexual conduct through a gap between the curtain and the side of the booth. Id. at 581 . The Court of Criminal Appeals observed:

The booth was open to anyone. All

one had to do was draw the curtain to enter the

booth. . . . Appellant testified that he looked into other

booths and saw people in them. The store was open to the public; that is the

way it was supposed to make a profit. . . . Under all of

the evidence the booth was part of a public place.

Id. at

582. Similarly, in Cammack v. State , the Court of Criminal Appeals held that the appellant

could not alter the public nature of a booth by simply closing and locking a

door. 641 S.W.2d 906, 908 (Tex. Crim.

App. 1982). The court reasoned that the

public had free access to the booths even when others were inside. See id. ;

see also Westbrook v. State , 624

S.W.2d 294, 295 (Tex. App.—Dallas 1981, no pet.) (citing Green for proposition that booth in public shop where occupants do

not have expectation of privacy is public place).

The partition

in this case is similar to the partitioned areas in Green and Cammack . The curtain was drawn, but there is no

evidence that this changed the nature of the area from public to private. At the time of the massage, other people remained

in the apartment and could potentially see into the area, just as the officers did

in Green . A curtain partition provides even less

privacy and grants greater access to the area than a booth. Any member of the public granted access to

the apartment would also have access to this partitioned area. Contra

Kirtley v. State , 585 S.W.2d 724, 726 (Tex. Crim. App. 1979) (holding

interior of car traveling down road is not accessible to public and therefore

not a public place). It is also not

highly unlikely that other occupants of the apartment would approach the

partitioned area. Contra Honeycutt v. State , 690 S.W.2d 64, 66 (Tex. App.—Houston

[14th Dist.] 1985, pet. ref’d) (“However, it is highly unlikely that any member

of the public . . . would approach a car parked behind a

vacant building next to a fence in a dark parking lot at Airline and Tidwell at

2:00 a.m.”). Viewing the evidence in the

light most favorable to the verdict, we conclude that the apartment was open

for a massage/prostitution business and, thus, a rational jury could have found

beyond a reasonable doubt that the apartment was a public place.

Zhang also contends that the

evidence, when viewed in a neutral light, is so weak that the verdict is

clearly wrong and manifestly unjust.

Zhang argues that the following evidence undermines the jury’s

verdict: the police arrested Zhang in

the interior of an apartment in a residential apartment complex; no signs

outside the apartment indicated the presence of a business inside; the

apartment had a kitchen, furnished living room, and clothing in the closet; the

massage services occurred in a private, partitioned area; Zhang personally

admitted clients into the apartment by appointment; Zhang monitored access to

the apartment and constantly supervised clients inside the apartment. Additionally, according to Zhang, the State

produced no evidence that Zhang distributed and circulated her business card to

the general public, advertised to the public, or served a large clientele. Even when we consider these facts, the great

weight and preponderance of the evidence does not contradict the verdict, nor

is the evidence of public place so weak as to render the verdict clearly wrong

and manifestly unjust.

Here, the door of the apartment

opened directly to the complex’s parking lot and no gates or codes controlled

access to this area. On the phone, Zhang

informed Officer Leal that “girls were available” and she later opened the

apartment door to let him inside, suggesting the massage parlor was open for

business. Zhang asked Leal if he had

been there before, indicating that she had enough customers such that she could

not remember all of them. Leal mentioned

that a friend referred him to Zhang and she did not question further or inquire

about the name of Leal’s referral. Zhang

invited Leal into the apartment even though she did not know him and they did

not have a mutual acquaintance, implying that any member of the public could

call Zhang, make an appointment, and gain access to the apartment. When searching the apartment after arresting

Zhang, officers found two additional people upstairs and almost no clothing in

the closets. The living room contained a

massage table located behind a large curtain partition and Zhang displayed her

massage license on a table in the living room.

Additionally, Zhang’s business cards included the apartment’s address, phone

number, and business hours, as well as a map to the apartment’s location. A reasonable jury could conclude that the

partitioned area, massage table and license, and the business cards with hours

of operation all indicate that Zhang used the apartment for business purposes

and invited the general public to partake of the services she offered. Viewing all of the evidence in a neutral

light, we hold that the evidence is factually sufficient to support the jury’s verdict.

Conclusion

The

evidence is both legally and factually sufficient to show that the misdemeanor

offense of prostitution occurred in a public place. We therefore affirm the judgment of the trial

court.

Jane Bland

Justice

Panel consists of Justices Bland,

Massengale, and Wilson. [2]

Do Not Publish. Tex.

R. App. P. 47.2 (b) .

[1] Section 43.02(a) reads:

(a) A person commits an offense if

he knowingly:

(1) offers to engage, agrees to engage, or engages

in sexual conduct for a fee; or

(2) solicits another in a public place to engage

with him in sexual conduct for hire.

Tex. Penal Code Ann. § 43.02(a) (Vernon 2003).

[2] The Honorable Randy W. Wilson ,

Judge of the 157th District Court of Harris County, Texas, participating by

assignment. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon 2005).