Anna Lee v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00459-CR

Anna Lee, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 0975340, HONORABLE JON N. WISSER, JUDGE PRESIDING

In a bench trial, appellant Anna Lee entered a not guilty plea and was convicted

of the offense of aggravated promotion of prostitution. See Tex. Penal Code Ann. § 43.04 (West

1994). The court assessed appellant's punishment at imprisonment for ten years and a fine of

$1,000. Imposition of the sentence was suspended, and appellant was granted community

supervision for a period of three years. Appellant asserts that the evidence is legally and factually

insufficient and that the trial court erred in admitting hearsay evidence. We will affirm the

judgment.

On April 15, 1997, Travis County deputy sheriffs and City of Austin police officers

conducted a joint undercover investigation of a sexually oriented business known as The Rose.

This investigation resulted in the return of an indictment alleging that appellant Anna Lee

knowingly owned, invested in, financed, controlled, supervised, and managed a prostitution

enterprise that used at least two prostitutes, Suk Humphrey and Yo Ok Armistead, on or about

April 15, 1997.

We will first consider appellant's point of error in which she insists that the

evidence is legally insufficient to support her conviction. In reviewing the legal sufficiency of the

evidence, we view the evidence in the light most favorable to the prosecution and ask whether any

rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. See Jackson v. Virginia , 443 U.S. 307, 319 (1979); Staley v. State , 887 S.W.2d 885, 888

(Tex. Crim. App. 1994); Geesa v. State , 820 S.W.2d 154, 162 (Tex. Crim. App. 1991);

Martinetz v. State , 884 S.W.2d 185, 187 (Tex. App.--Austin 1994, no pet.).

A person commits the offense of prostitution if he or she offers to engage, agrees

to engage, or engages in sexual conduct for a fee. See Tex. Penal Code Ann. § 43.02 (West

1994); Mattias v. State , 731 S.W.2d 936, 937 (Tex. Crim. App. 1987); Watson v. State , 10

S.W.3d 782, 784 (Tex. App.--Austin 2000, no pet.). A person commits aggravated promotion of

prostitution if he or she knowingly owns, invests in, finances, controls, supervises, or manages

a prostitution enterprise that uses two or more prostitutes. See Tex. Penal Code Ann. § 43.04 (a)

(West 1994). Proof of any one of the six statutory means of committing aggravated promotion

of prostitution is sufficient to show a defendant's participation in the prostitution enterprise. See

Ringer v. State , 577 S.W.2d 711, 716 (Tex. Crim. App. 1979); Smithwick v. State , 762 S.W.2d

232, 233 (Tex. App.--Austin 1988, pet. ref'd).

This record shows a piecemeal trial that commenced on July 15, 1998 and after

several sessions terminated on April 9, 1999. Conflicts in the evidence have been resolved by the

trial court as the trier of fact. See Jones v. State , 944 S.W.2d 642, 647 (Tex. Crim. App. 1996);

Adelman v. State , 828 S.W.2d 418, 421-22 (Tex. Crim. App. 1992). Appellant concedes the

"State proved that on or about April 15, 1997, Appellant owned The Rose." Appellant concedes

that the "State also adduced evidence that on or about April 15, 1997 'Anna' engaged in an act

of prostitution with Richard T. Donohue and that on or about April 15, 1997, Suk Humphrey

engaged in an act of prostitution with Officer Jeffery Slater." Further appellant concedes that the

"State proved that on or about August 28, 1997, Yo Ok Armistead engaged in sexual conduct for

a fee with Deputy Russell Thompson." However, appellant strenuously argues that while "a

rational trier of fact could have found that Appellant probably still owned The Rose on August

28, 1997, that is far short of finding beyond a reasonable doubt that appellant owned The Rose

at that time." Appellant concedes the legal sufficiency of the evidence except for proof that

appellant owned The Rose on August 28, 1997.

"A state of things once shown to exist is ordinarily presumed to continue, in the

absence of proof to the contrary." Cook v. State , 258 S.W. 1058, 1060 (Tex. Crim. App. 1923)

(control and management of real property). The rule that a fact or condition shown to exist is

presumed to continue is generally applied in criminal cases. See 22A Corpus Jur. 2d, Criminal

Law § 701 (1989). See also Bell v. State , 161 S.W.2d 109, 112 (Tex. Crim. App. 1942); Jenks

v. United States , 226 F.2d 540, 548-49 (5th Cir. 1955), rev'd on other grounds , 353 U.S. 657

(1957); Farrell v. United States , 381 F.2d 368, 369 (9th Cir. 1967); State v. Donahue , 585

S.W.2d 160, 161 (Mo. App. 1979); Strozik v. State , 279 N.W.2d 922, 926 (Wisc. 1979); State

v. Miranda , 416 P.2d 444, 449-50 (Ariz. App. 1966); Underdown v. District of Columbia , 217

A.2d 659, 661 (D.C. App. 1966); State v. Gutierrez , 408 P.2d 503, 505 (N.M. 1965); State v.

Jackson, 366 P.2d 217, 218 (Wash. 1961); State v. Hopfe , 82 N.W.2d 681, 687 (Minn. 1957).

Appellant having conceded that "on or about April 15, 1997, Appellant owned The Rose," it can

be presumed that appellant owned The Rose on August 28, 1997 as that presumption is not

rebutted. (1)

We have answered appellant's argument; but, for yet another reason, the evidence

shows the evidence is legally sufficient to sustain appellant's conviction. Police Officer Richard

McFadin testified that he was at The Rose assisting in the undercover investigation on April 15,

1997. Before citizen Donohue left The Rose that night, McFadin brought Armistead and

Humphrey before Donohue. Donohue identified Armistead as the woman with whom he had

sexual intercourse that night for a fee.

When appellant's concessions and McFadin's testimony are considered, the record

shows that: (1) appellant was the owner and manager of The Rose, on April 15, 1997; (2) Suk

Humphrey engaged in an act of prostitution with Officer Jeffery Slater at The Rose on April 15,

1997; (3) Yo Ok Armistead engaged in an act of prostitution with Donohue at The Rose on April

15, 1997. Viewed in the light most favorable to the prosecution, a rational trier of fact could find

appellant guilty of the essential elements of the charged offense beyond a reasonable doubt.

Appellant's first point is overruled.

In her second point of error, appellant urges that the evidence is factually

insufficient to support her conviction. In reviewing factual sufficiency of the evidence, we view

all the evidence "without the prism of in the light most favorable to the prosecution"; we set aside

the jury's verdict only if it is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust. See Clewis v. State , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996);

Stone v. State , 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd). In performing a factual

sufficiency review, the courts of appeals are required to give deference to the jury verdict and

examine all of the evidence impartially, setting aside the jury verdict "only if it is so contrary to

the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State , 958

S.W.2d 404, 410 (Tex. Crim. App. 1997) (quoting Clewis , 922 S.W.2d at 129 ). Recently, the

Clewis standard has been reprised, "[T]he complete and correct standard a reviewing court must

follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks

whether a neutral review of all the evidence, both for and against the finding, demonstrates that

the proof of guilt is so obviously weak as to undermine confidence in the jury's determination,

or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof."

Johnson v. State , No. 1915-98-CR, slip op. at 18 (Tex. Crim. App. Feb. 9, 2000).

Appellant's only argument urges that the "State proved an act of prostitution by one

of the named prostitutes on or about April 15, 1997 and an act of prostitution by the other named

prostitute on or about August 28, 1997," but the State failed to prove appellant owned The Rose

on both days. Therefore, appellant urges the evidence is factually insufficient to support the

conviction. This contention is essentially the same as that discussed under point of error one. We

have held that the evidence shows appellant owned The Rose both on April 15 and August 28,

1997. Furthermore, the evidence is sufficient to show that appellant owned and managed The

Rose and that Armistead and Humphrey both committed acts of prostitution on April 15, 1997.

We have made a neutral review of all of the evidence, applied the factual sufficiency standard of

review, and we hold that the evidence is not so weak as to undermine the court's determination

of guilt or to indicate that the proof of guilt, although adequate if taken alone, is greatly

outweighed by contrary proof. Appellant's second point of error is overruled.

In her third point of error, appellant asserts the "trial court erred in admitting

hearsay over a timely and specific objection . . . . Specifically, the trial court erred in overruling

the defense objection on hearsay grounds to that portion of an affidavit purportedly executed by

Richard T. Donohue: 'Yo Ok Armistead is the lady who called herself Anna.'" The trial court

admitted Donohue's affidavit executed April 15, 1997 in which Donohue identified Armistead as

the woman with whom he had sexual intercourse for a fee of $100. The trial court ruled the

affidavit admissible as an exception to the hearsay rule because it tended to subject Donohue to

criminal liability and to make Donohue, a physician, an object of disgrace. See Tex. R. Evid.

803(24). We believe the trial court's ruling was correct. However, even if the affidavit was not

admissible, its admission was harmless error, because the record contains the same evidence from

another source. Officer McFadin testified that on April 15,1997, in his presence, Donohue

identified Armistead as the woman with whom he had just had sexual intercourse. This evidence

was substantially the same as that appellant contends was inadmissible; its admission, if error, was

therefore harmless. See Cormier v. State , 955 S.W.2d 161, 162 (Tex. App.--Austin 1997, no

pet.); see also Brown v. State , 757 S.W.2d 739, 741 (Tex. Crim. App. 1988). Moreover, "[a]

criminal conviction should not be overruled for non-constitutional error if the appellate court, after

examining the record as a whole, has fair assurance that the error did not influence the jury, or

had but slight effect." Johnson v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see Tex.

R. App. P. 44.2(b); Hughes v. State , 962 S.W.2d 689, 695 (Tex. App.--Houston [1st Dist.] 1998,

no pet.); Cormier , 955 S.W.2d at 162 . We have examined the record as a whole and have fair

assurance that the admission of the affidavit, if error, did not influence or had but slight effect on

the trier of fact. Appellant's third point of error is overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Yeakel, Patterson and Dally

Affirmed

Filed: August 10, 2000

Do Not Publish

* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.

See Tex. Gov't Code Ann. § 74.003 (b) (West 1998).

1. Here, our application of the presumption of the continuous state of facts is unlike the

court's failure to apply the presumption in Birdett v. State , 158 S.W.2d 902, 904 (Tex. Civ. App.

1942). In an action to enjoin the unlawful sale of liquor, the court held the rule that a status or

condition once shown to exist is presumed to continue was not applicable to show continuous

liquor law violations because the presumption of innocence implies that a former wrongdoer has

repented. See id . The presumption as applied here is not that appellant was continuing to violate

the law but merely that appellant's conceded ownership of The Rose on or about April 15, 1997

continued to August 28, 1997.

is essentially the same as that discussed under point of error one. We

have held that the evidence shows appellant owned The Rose both on April 15 and August 28,

1997. Furthermore, the evidence is sufficient to show that appellant owned and managed The

Rose and that Armistead and Humphrey both committed acts of prostitution on April 15, 1997.

We have made a neutral review of all of the evidence, applied the factual sufficiency standard of

review, and we hold that the evidence is not so weak as to undermine the court's determination

of guilt or to indicate that the proof of guilt, although adequate if taken alone, is greatly

outweighed by contrary proof. Appellant's second point of error is overruled.

In her third point of error, appellant asserts the "trial court erred in admitting

hearsay over a timely and specific objection . . . . Specifically, the trial court erred in overruling

the defense objection on hearsay grounds to that portion of an affidavit purportedly executed by

Richard T. Donohue: 'Yo Ok Armistead is the lady who called herself Anna.'" The trial court

admitted Donohue's affidavit executed April 15, 1997 in which Donohue identified Armistead as

the woman with whom he had sexual intercourse for a fee of $100. The trial court ruled the

affidavit admissible as an exception to the hearsay rule because it tended to subject Donohue to

criminal liability and to make Donohue, a physician, an object of disgrace. See Tex. R. Evid.

803(24). We believe the trial court's ruling was correct. However, even if the affidavit was not

admissible, its admission was harmless error, because the record contains the same evidence from

another source. Officer McFadin testified that on April 15,1997, in his presence, Donohue

identified Armistead as the woman with whom he had just had sexual intercourse. This evidence

was substantially the same as that appellant contends was inadmissible; its admission, if error, was

therefore harmless. See Cormier v. State , 955 S.W.2d 161, 162 (Tex. App.--Austin 1997, no

pet.); see also Brown v. State , 757 S.W.2d 739, 741 (Tex. Crim. App. 1988). Moreover, "[a]

criminal conviction should not be overruled for non-constitutional error if the appellate court, after

examining the record as a whole, has fair assurance that the error did not influence the jury, or

had but slight effect." Johnson v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see Tex.

R. App. P. 44.2(b); Hughes v. State , 962 S.W.2d 689, 695 (Tex. App.--Houston [1st Dist.] 1998,

no pet.); Cormier , 955 S.W.2d at 162 . We have examined the record as a whole and have fair

assurance that the admission of the affidavit, if error, did not influence or had but slight effect on

the trier of fact. Appellant's third point of error is overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Yeakel, Patterson and Dally

Affirmed

Filed: August 10, 2000

Do Not Publish

*