Breeanna Brown v. State

Opinion issued May 10, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00791-CR

———————————

Breeanna Brown , Appellant

V.

The State of

Texas , Appellee

On Appeal from the County Criminal Court at Law No. 1

Harris County, Texas

Trial Court Case No. 1667479

MEMORANDUM OPINION

A

jury convicted Breeanna Brown of the class B misdemeanor

offense of prostitution for knowingly agreeing to engage in sexual conduct for

a fee and assessed punishment at ninety days’ confinement and a $1000 fine. [1] Brown appeals, contending

that the State presented insufficient evidence of an agreement to engage in

sexual conduct for a fee and that she received ineffective assistance of

counsel during the punishment phase of her trial.

We affirm the trial court’s

judgment.

Background

Brown was charged by information

with misdemeanor prostitution following an undercover investigation by the

Houston Police Department (HPD). The State presented testimony from a single

witness at trial: B. Surginer , a thirty-one-year

veteran of the HPD with more than fifteen years’ experience in the Vice

Division. Surginer testified that he came across a

web-advertisement for escort services while conducting a “sting operation” of

internet-based prostitution. He suspected the escort was involved in

prostitution because the posting included semi-nude photographs and advertised fees

based on thirty-minute and one-hour time increments.

After viewing similar

advertisements placed by the same escort on five separate occasions, Surginer called the telephone number listed and arranged to

meet the woman who answered at a motel that rents rooms by the hour. Shortly

after arranging the meeting, Surginer received a

return call from the same woman clarifying that her fee would be $300 for one

hour. Surginer agreed to the fee, but he and the

woman did not discuss what the fee included. He stated that “it’s very rare for

anybody to talk about anything other than availability on the phone.”

Surginer identified Brown as the woman who met him at the motel.

She and Surginer had a short, casual conversation before

she told him to “get comfortable.” Based on his experience in the Vice

Division, Surginer explained that, in the sex

industry, to “get comfortable” means to disrobe. As he undressed, Surginer offered to “take care of the business part” and reached

into his pocket to retrieve money. Brown refused his offer and told him, “Not

yet. Get comfortable first.” She then went into the bathroom, and Surginer removed all of his clothing. Surginer

observed that Brown was not surprised or upset that he was completely nude when

she came out of the bathroom. Instead, she retrieved a pouch containing a

number of condoms and personal lubricant from her purse. Surginer

told the jury that Brown “took out a condom, opened the condom, and . . .

started walking over to the front of me.” She told him to “just lay back.”

Because the purpose of his

investigation was to discover whether Brown would agree to engage in a sexual

act for a fee, Surginer asked if she would perform a

“blow job without the condom,” to which Brown responded, “Everything I do is

covered.” He then asked Brown whether she would perform other specific sexual

acts, but she told him “no,” not to talk about it, or to “just lay back” or

“relax.” Surginer explained that, during this

conversation, Brown stood in front of him with the condom. He was not surprised

that Brown refused to verbalize an affirmative response to his questions. He

indicated that such behavior is typical of persons working in the sex industry

because “a lot of times they are worried about being recorded and being recorded

talking about that.” Nevertheless, believing that Brown’s behavior had demonstrated

her intention to perform a sexual act for a fee, Surginer

identified himself as a police officer. Brown grabbed her cell phone and yelled,

“It’s the cops.” The State introduced an audio recording of the full

interaction between Surginer and Brown into evidence

and played it for the jury.

On

cross-examination, Surginer acknowledged that merely

working as an escort is not unlawful and that the web-advertisement prompting

his investigation of Brown did not expressly mention any illegal acts of

prostitution. He also acknowledged that Brown was not dressed provocatively

when she arrived at the motel; however, he explained that women working as

prostitutes frequently dress in an understated manner so as not to draw

attention to themselves. Although Brown never removed her clothing and never

verbally consented to perform any specific sex act for a fee, Surginer believed “her intentions were clear by her actions.”

The jury returned a guilty verdict,

and Brown elected not to give the jury the option to grant her probation during

punishment, making the range of punishment zero to 180 days confinement and a

fine of up to $2,000. See Tex. Penal Code Ann . § 12.22 (West 2011). Surginer , again, was the only testifying witness at the

punishment phase of Brown’s trial. He suggested that Brown continued to work as

an escort after her arrest based on his observation of additional

web-advertisements posted by her in the days before her initial trial setting. Surginer also conveyed that other members of HPD’s Vice

Division had contacted Brown using the telephone number listed in the postings

and arranged to meet with her, but no additional charges were filed against

her. According to Surginer , no additional charges could

be filed because Brown had “learned her lesson and knows not to say anything

about money. And as soon as they start talking about any kind of sex act, she

says, I’ve got to go[ .]” Brown did not testify or

present any mitigating evidence during the punishment phase of trial.

After

the jury sentenced Brown to ninety days’ confinement and a $1000 fine, Brown

moved for a new trial based on the ineffective assistance of counsel. In the

affidavit attached to her motion for new trial, Brown complained that her trial

counsel failed to request notice of the State’s intent to introduce evidence of

extraneous offenses and failed to present any mitigating evidence or inform

Brown of her right to testify during the punishment phase of trial. Brown

alleged that she was sexually assaulted as a child, lost her home at thirteen

years of age, and spent the rest of her childhood on the streets or in foster

homes. She suffered further abuse at the hands of a boyfriend later in life. She

asserted that the jury would have assessed a different punishment had that

information been presented.

Trial counsel testified at a

hearing on Brown’s motion for new trial. Trial counsel acknowledged that she

did not properly request notice of the State’s intent to introduce evidence of

extraneous offenses as part of the discovery order filed with and approved by

the trial court. When asked why she did not present any mitigating evidence or

inform Brown of her right to testify, trial counsel responded that she and her

co-counsel knew Brown’s background might influence the jury and urged Brown to

testify on more than one occasion. After wavering between testifying and not

testifying, however, Brown refused to take the stand. Trial counsel testified

that she did not take any steps to establish Brown’s background beyond asking

Brown to testify — i.e., she

did not subpoena any other witnesses or attempt to introduce records of the

criminal proceeding arising from the sexual assault against Brown. During the

new trial hearing, the trial court admitted into evidence the prosecutor’s

affidavit averring that Brown’s trial counsel had informed the State of Brown’s

background during a break of the punishment phase of trial and expressed her

desire that Brown testify. At that point, the State suggested an agreed punishment

of probation, but Brown refused that offer. The trial court ultimately denied

Brown’s motion for new trial, and this appeal followed.

Sufficiency of the Evidence

In her first issue, Brown argues

the evidence was insufficient to establish that she actually agreed to engage

in sexual conduct for a fee. Brown asserts that the State did not present any direct

evidence of an agreement to engage in sexual conduct for a fee and that such an

agreement cannot reasonably be inferred because no money exchanged hands, she

remained clothed and did not expressly instruct Surginer

to remove his clothing, and she never expressed a willingness to engage in any

sexual activity with Surginer .

I. Standard of Review

We review Brown’s challenge to the sufficiency of the

evidence under the standard enunciated in Jackson v. Virginia , 443 U.S. 307 , 318–20, 99 S. Ct.

2781 , 2788–89 (1979). See Ervin v. State , 331 S.W.3d 49 , 52–56 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d ) (citing Brooks v. State , 323 S.W.3d 893 , 894–913 (Tex. Crim.

App. 2010)). Under the Jackson standard, evidence is insufficient to

support a conviction if, considering all the record evidence in the light most

favorable to the verdict, no rational factfinder

could have found that each essential element of the charged offense was proven

beyond a reasonable doubt. See Jackson , 443 U.S. at 317 , 318–19, 99 S. Ct. at 2788–89; Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider both

direct and circumstantial evidence, and all reasonable inferences that may be

drawn from the evidence in making our determination. Clayton v. State , 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). Evidence is insufficient under four

circumstances: (1) the record contains no evidence probative of an element of

the offense; (2) the record contains a mere “modicum” of evidence probative of

an element of the offense; (3) the evidence conclusively establishes a

reasonable doubt; and (4) the acts alleged do not constitute the criminal

offense charged. See Jackson , 443 U.S. at 314 , 318 n.11, 320, 99 S.Ct .

at 2786, 2789 & n. 11; Laster , 275 S.W.3d at 518 ; Williams v. State , 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).

The Jackson standard

gives full play to the responsibility of the factfinder

to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. See Jackson ,

443 U.S. at 318–19, 99 S. Ct. at 2788–89; Clayton , 235 S.W.3d at 778 . An

appellate court presumes the factfinder resolved any

conflicts in the evidence in favor of the verdict and defers to that

resolution, provided that the resolution is rational. See Jackson , 443

U.S. at 326 , 99 S. Ct. at 2793 . If an appellate court finds the evidence insufficient under

this standard, it must reverse the judgment and enter an order of acquittal. See

Tibbs v. Florida , 457 U.S. 31, 41 , 102 S. Ct. 2211, 2218 (1982).

II. Agreement

to Engage in Sexual Conduct for a Fee

A

person commits the offense of prostitution if she knowingly “offers to engage,

agrees to engage, or engages in sexual conduct for a fee.” Tex. Penal Code Ann. § 43.02(a )( 1). The trial court’s charge narrowed the manner or means

of committing the offense by authorizing a conviction only if the jury found

Brown “unlawfully, knowingly agree[d] to engage in sexual conduct, namely,

sexual intercourse, to wit, straight sex or deviate sexual intercourse, to wit,

oral sex, with B. Surginer , for a fee[.]” [2] Thus, we will sustain

Brown’s conviction if the record contains sufficient evidence of a knowing

agreement to engage in sexual conduct for a fee. “Because direct evidence is

rarely available to prove the existence of an agreement, circumstantial

evidence is sufficient and is almost always needed.” Nwosoucha v. State , 325 S.W.3d 816, 831 (Tex. App.—Houston [14th Dist.]

2010, pet. ref’d ).

The

record here contains sufficient circumstantial evidence that Brown knowingly

agreed to engage in sexual conduct for a fee. Brown agreed to meet Surginer at a motel that rents rooms by the hour and to payment

of $300 for the hour she was to spend with Surginer

at that motel. Although Brown and Surginer did not

discuss what the fee included and the fee was not paid, the actual exchange of

money is not required to sustain a conviction for prostitution. See Tex.

Penal Code Ann . § 43.02(a )( 1) (listing

statutory elements of offense); see also

Steinbach v. State , 979 S.W.2d 836 , 841 n.8 (Tex. App.—Austin 1998, pet. ref’d ) (“[I]n order to constitute the offense . . . a fee

need not be paid.”).

Once Brown arrived at the motel she

instructed Surginer to “get comfortable.” Based on

his thirty-one years of experience as a police officer and, more importantly,

more than fifteen years in the Vice Division, Surginer

knew that Brown’s instruction to “get comfortable” was an instruction to

disrobe. Brown was not surprised or uncomfortable when Surginer

disrobed; she did not ask him to put his clothing back on or to leave. Instead,

she retrieved a pouch containing condoms and personal lubricant from her purse,

opened one of the condoms, and stood in front of Surginer .

When he asked Brown whether she would perform certain sexual acts without a

condom, she responded only that, “Everything I do is covered.” Surginer expressed a willingness to pay Brown additional

money if she performed these acts. Although Brown did not verbalize any

agreement to perform the acts requested by Surginer , Surginer explained that it is not uncommon for women

working in the sex industry to refuse to state an express agreement out of fear

of being arrested or recorded. He understood Brown’s actions to mean that she

was agreeing to engage in sexual conduct for a fee. There is no requirement

that Surginer’s testimony be corroborated in order to

sustain Brown’s conviction, but the jury heard the audio recording of the

exchange between Brown and Surginer . See Morris v. State , 565

S.W.2d 534, 535 (Tex. Crim. App. 1978). Based on that audio recording

and Surginer’s testimony, the jury could reasonably

infer that Brown agreed to participate in sexual conduct for a fee. See McCarty v. State , 616 S.W.2d 194 ,

196 - 97 (Tex.

Crim. App. 1981) (holding that conviction for prostitution was supported by sufficient

evidence where implied offers were made by both defendant and arresting

officer).

Accordingly, we overrule Brown’s first issue.

Ineffective Assistance of Counsel

Brown argues in her second

issue that her counsel was ineffective during the punishment phase of trial for

three reasons: (1) counsel failed to inform Brown of her right to testify at

the punishment hearing; (2) counsel failed to investigate or offer evidence to

mitigate punishment, including evidence that Brown was abused as a child; and

(3) counsel failed to request notice of the State’s intent to introduce

evidence of extraneous offenses at the punishment hearing pursuant to article

37.07, section 3(g) of the Code of Criminal Procedure and Rule of Evidence

404(b). See Tex. Code Crim. Proc. Ann . art. 37.07, § 3(g) (West 2011); Tex. R. Evid . 404(b).

I. Standard

of Review

The

constitutional “right to counsel is ‘the right to the effective assistance of

counsel.’” Strickland v. Washington ,

466 U.S. 668, 686 , 104 S. Ct. 2052, 2063 (1984) (quoting McMann v. Richardson , 397 U.S. 759 , 771 n.14, 90 S. Ct. 1441 , 1449 n.14

(1970)). To obtain reversal of her conviction based on the ineffective

assistance of counsel, Brown must make two showings: (1) counsel’s performance was

deficient and (2) counsel’s deficient performance prejudiced her defense. Strickland , 466 U.S. at 687 - 94, 104 S. Ct. at 2064 - 68; Andrews v. State , 159 S.W.3d 98, 102

(Tex. Crim. App. 2005); Martin v. State ,

265 S.W.3d 435, 440 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A

failure to make either showing defeats an ineffective-assistance claim. Rylander v. State , 101 S.W.3d

107, 110 (Tex. Crim. App. 2003); Martin ,

265 S.W.3d at 440 . A court need not address both components of the

inquiry if a defendant makes an insufficient showing on one. Strickland , 466 U.S. at 697 , 104 S. Ct.

at 2069 .

To determine whether Brown has

shown counsel’s performance was deficient under the first prong of our analysis,

we look to the totality of the representation and the particular circumstances

of the case. Thompson

v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is

whether counsel’s performance fell below an “objective standard of

reasonableness,” considering all the circumstances and prevailing professional

norms. Strickland ,

466 U.S. at 688 - 89,

104 S. Ct. at 2065 . We indulge a strong presumption that counsel

rendered adequate assistance and exercised reasonable professional judgment in

making significant decisions. Id. at 690 , 104 S. Ct. at 2066 ; Salinas

v. State , 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). “To overcome

the presumption of reasonable professional assistance, ‘any allegation of

ineffectiveness must be firmly founded in the record[ .]’”

Salinas , 163 S.W.3d at 740 (quoting Thompson , 9 S.W.3d at 813 ).

In the second prong of our analysis,

we determine whether Brown has shown a reasonable probability that, but for her

counsel’s deficient performance, the result of the proceeding would have been

different. See Strickland , 466 U.S.

at 687, 694 , 104 S. Ct. at 2064, 2068 ; Andrews ,

159 S.W.3d at 102 . A “reasonable

probability” is a “probability sufficient to undermine confidence in the

outcome.” Strickland ,

466 U.S. at 694 , 104 S. Ct. at 2068 .

We consider

these prongs “through the prism of an abuse of discretion standard” when, as

here, an appellant raises the issue of ineffective assistance in a motion for

new trial. State v. Gill , 967 S.W.2d

540, 542 (Tex. App.—Austin 1998, pet. ref’d ); see also Rodriguez v. State , 329 S.W.3d

74, 81 (Tex. App.—Houston [14th Dist.] 2010, no pet.). We view evidence in the

light most favorable to the trial court’s ruling, and we will reverse only if

no reasonable view of the record could support the trial court’s finding. Charles v. State , 146

S.W.3d 204 , 207 - 08

(Tex. Crim. App. 2004), superseded by

rule on other grounds by Tex. R. App. P . 21.8(b).

I. Waiver of Right to Testify in Mitigation

of Punishment

Brown asserts that the ineffective

assistance provided by her trial counsel at the punishment hearing renders Brown’s

waiver of the right to testify involuntary. Brown testified by affidavit as

follows:

I am not knowledgeable in

the area of criminal law and I relied upon my attorney for legal advice and

representation. I was unaware that I could testify about my background and upbringing

during the punishment phase of trial. My attorney did not discuss with me the

option of having me testify about my background in punishment as a means of

mitigation.

Because trial counsel testified at the hearing on

Brown’s motion for new trial, however, we have insight into counsel’s strategy

during punishment. Trial counsel directly contradicted Brown’s statement that

she was uninformed of her right to testify. Trial counsel indicated her

awareness of the mitigating effect Brown’s background might have on the jury’s

assessment of punishment; accordingly, trial counsel and co-counsel urged Brown

to testify on multiple occasions. Brown acknowledged to trial counsel that Brown

understood both her right to testify and the importance of her testimony as mitigating

evidence. Nevertheless, Brown refused to testify. According to trial counsel,

Brown’s refusal stemmed from a fear that the jury would “judge” her harshly

based on her background or from anger directed at Surginer .

Brown warned trial counsel not to put her on the stand because, “if I get on

the stand, all I want to tell them about is how he [ Surginer ]

allowed me to do X, Y and Z .[ [3] ] That’s exactly what she

said and exactly how it was said. She was not going into the past stuff and

that’s what would be helpful, not the other stuff.” Trial counsel also

testified that Brown became generally resistant to following the advice of

counsel after the jury returned a guilty verdict in the first phase of trial.

Because

the evidence of whether trial counsel informed Brown of her right to testify at

punishment was conflicting, the trial court was within its discretion to

resolve the conflict. As the fact-finder during the new trial hearing, the

trial court was free to believe all, some, or none of the assertions upon which

Brown’s claims of ineffective assistance were based. Charles , 146 S.W.3d at 206 , 212 - 13.

We defer to the trial court’s resolution of historical fact, and we conclude

that a reasonable view of the evidence supports the trial court’s decision to

deny Brown’s motion for new trial based on ineffective assistance in failing to

inform Brown of her right to testify. Accordingly, the evidence supports the

trial court’s decision.

II. Failure

to Present Other Evidence of Mitigating Circumstances

Brown next

complains that trial counsel failed to present evidence of the abuse and

difficult circumstances Brown endured as a child during the punishment hearing.

According to Brown, the presentation of such evidence through Brown’s testimony

or the testimony of a family member would have supported a lesser sentence. Viewing

the evidence in the light most favorable to the trial court’s ruling and

looking at the totality of the representation and the particular circumstances

of this case, however, we conclude that Brown failed to establish that her

trial counsel’s performance fell below an objective standard of reasonableness,

and therefore the first prong of Strickland

is not satisfied. See Thompson , 9 S.W.3d at 812 .

Again, Brown’s

assertions with respect to trial counsel’s failure to present mitigation

evidence are controverted. Trial counsel testified that she was aware Brown

suffered abuse as a child, moved out of her mother’s home at a young age, and

then suffered abuse again at the hands of a boyfriend. Trial counsel testified

that she informed Brown of the mitigating effect evidence of her background

might have on the punishment determination, but Brown refused to testify. Because

we have already determined that the trial court was free to disbelieve Brown’s claim

that she would have testified to her history of abuse had she been informed of

her right to testify at punishment, trial counsel’s failure to present Brown’s

testimony as mitigation evidence cannot serve as the basis for an ineffective

assistance claim.

To obtain relief on her ineffective assistance claim

based on other uncalled witnesses, Brown was required to show that the

witnesses would have been available to testify and that their testimony would

have benefitted the defense. See Perez v.

State , 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (“[T]he failure to call

witnesses as the guilt-innocence and punishment stages is irrelevant absent a

showing that such witnesses were available and appellant would benefit from

their testimony); Ex parte White , 160

S.W.3d 46, 52 (Tex. Crim. App. 2004); Nwosoucha , 325 S.W.3d at 830 . Although she does not specify

whom the prosecution should have called as witnesses in her briefing, Brown

identified her mother, grandmother, and a friend as potential witnesses at the

new trial hearing. The record, however, does not indicate that any of these

three witnesses would have been available to testify. Nor does the record

indicate that Brown would have benefitted from their testimony. There is no

evidence that either Brown’s grandmother or her friend had knowledge of the

abuse alleged in Brown’s affidavit. And, given the apparently-strained

relationship between Brown and her mother, there is no evidence that Brown’s

mother would have testified in a favorable manner. Accordingly, the record does

not establish that trial counsel’s performance was deficient. [4]

III. Failure to Request Notice of Extraneous

Offenses or Bad Acts

Brown finally asserts that

trial counsel was ineffective in failing to request notice of the State’s

intent to introduce evidence of extraneous offenses or bad acts during punishment — particularly Surginer’s

testimony that Brown continued to post web-advertisements for escorting

services up until the trial setting and that HPD’s Vice Division had arranged a

meeting with Brown at a hotel room on one other occasion. See Tex. Code

Crim. Proc. Ann . art. 37.07, § 3(g); Tex. R. Evid . 404(b). According to Brown, (1) trial counsel’s failure to

request notice under article 37.07 or Rule of Evidence 404(b) rendered her

unprepared for the punishment phase of trial and (2) the introduction of such evidence

influenced the jury to assess a harsher sentence because the jury could infer

from the evidence that Brown was involved in other prostitution cases and

continued to work in the sex industry.

It was undisputed at the new trial

hearing that trial counsel did not request notice of the State’s intent to

introduce evidence of extraneous offenses or bad acts under article 37.07 or

Rule of Evidence 404(b), that the trial court’s standard discovery order did

not require such notice, and that the State did not provide it. Trial counsel

also acknowledged that, because she was unaware of the evidence supporting an

inference that Brown continued to solicit business or work in the sex industry

after the date of the offense charged, she did not prepare to rebut that

evidence. But trial counsel’s “failure to request notice of

intent to introduce punishment evidence under Art. 37.07, § 3 is not one

of those acts we will consider so egregious that it, by itself, will constitute

ineffective assistance of counsel.” Rodriguez v. State , 981 S.W.2d 357, 359 (Tex. App.—San Antonio

1998, no pet.) (noting that rule finding counsel’s failure to request

notice of extraneous offense evidence ineffective per se “would effectively

block any attempt by the State to introduce evidence of this type, because in

the case of an unfavorable result a defendant would be able to claim

ineffective assistance as a matter of right”); see Huddleston v. State , No. 01-00-01174-CR, 2001 WL 1243962 , at *3

(Tex. App.—Houston [1st Dist.] Oct. 18, 2001, pet. ref’d ) ( mem . op., not designated

for publication) (“[T] rial counsel’s failure to

request notice of intent to introduce extraneous offenses at punishment does

not per se constitute ineffective

assistance of counsel.”); see also Autry

v. State , 27 S.W.3d 177, 182 (Tex. App.—San Antonio 2000, pet. ref’d ) (explaining that trial counsel’s failure to file

pre-trial motions, in itself, does not result in ineffective assistance); Huynh v. State , 833 S.W.2d 636, 638

(Tex. App.—Houston [14th Dist.] 1992, no writ) (same). This Court and others

have denied a defendant’s ineffective-assistance claim when the defendant

failed to develop a record explaining the steps she would have taken had trial

counsel received notice of the extraneous offense evidence or establishing that

the extraneous offense evidence was inadmissible in the first instance. See Rodriguez , 981 S.W.2d at 359 ; Petkovic v. State ,

No. 14-06-00551-CR, 2007 WL 2001697 , at *2 (Tex. App.—Houston [14th Dist.] July 12, 2007, pet. ref’d )

( mem . op., not designated for publication); Huddleston , 2001 WL 1243962 , at *3.

The record in this case is

similarly undeveloped. Brown has not made any argument or showing that the

State’s evidence was irrelevant or inadmissible, just that trial counsel failed

to request notice of the State’s intent to introduce that evidence at

punishment. Neither has Brown identified what her trial counsel could have

discovered with timely notice of the State’s intent — i.e , Brown has not

identified any particular witness or other evidence her trial counsel could have

presented to rebut the inference that she continued to work in the sex industry.

We note that, during her closing remarks, trial counsel criticized the

credibility of the State’s punishment evidence, pointing out that Surginer’s testimony was that Brown did not engage in or

agree to engage in any further sexual contact with members of the Vice Division

and that the State had not presented copies of the web-advertisements allegedly

posted by Brown after the date of the charged offense. The jury assessed

punishment at 90 days’ confinement and a $1,000 fine — a sentence in the middle of the range available

for prostitution as a class B misdemeanor. See

Tex. Penal Code Ann. § 12.22

(West 2011) (providing that a person guilty of class B misdemeanor shall be

punished by a fine not to exceed $2,000 or confinement for a term not to exceed

180 days or both).

On this record, we cannot conclude

that there is a reasonable probability, i.e., one sufficient to undermine

confidence in the outcome, that the result of the punishment hearing would have

been different had her trial counsel properly requested notice of the State’s

intent to introduce evidence of extraneous offenses or bad acts. See Strickland , 466 U.S. at 687, 694 ,

104 S. Ct. at 2064, 2068 .

We therefore hold that Brown has

not satisfied the Strickland standard

for ineffective assistance of counsel with respect to any of the three reasons

she asserts counsel’s performance was deficient and that the trial court did

not err in denying her motion for new trial. We overrule her second issue.

Conclusion

We conclude that the

evidence is sufficient to support the jury’s verdict finding Brown guilty of

the misdemeanor offense of prostitution. We further conclude that Brown has not

established that she received ineffective assistance of counsel during the

punishment phase of her trial. Accordingly, we affirm the trial court’s

judgment.

Harvey

Brown

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R.

App. P. 47.2( b).

[1] See

Tex. Penal Code Ann . §

43.02(a )( 1) (West 2011).

[2]

“Sexual intercourse” means “any penetration

of the female sex organ by the male sex organ,” and “deviate sexual

intercourse” means “any contact between the genitals of one person and the

mouth or anus of another.” Tex. Penal Code Ann . § 43.01(1), (5)

(West 2011).

[3]

Brown alleged that Surginer had allowed her to place her mouth on his penis in

the motel room in order to make a case against her.

[4]

We note that, despite Brown’s

refusal to testify on her own behalf during the punishment hearing, trial

counsel relayed Brown’s history of abuse to the State. According to the

prosecutor’s affidavit submitted during the new trial hearing,

“In a conversation with defense counsel during a break of the punishment

phase of the trial, defense counsel stated to me that [Brown] had been the victim of a

sexual offense at a young age and had been removed from her home by her mother.

Defense counsel stated to me that she was hoping that [Brown] would be willing

to testify but that it seemed unlikely because [Brown] was reluctant to testify

as to her personal history. During this conversation, I again asked defense

counsel whether [Brown] would be interested in an agreed punishment of

probation. However, this offer was again rejected by defense counsel who stated

that [Brown] was adamant that she did not want to be on probation.”

Thus, after the

jury determined Brown’s guilt, trial counsel made some effort to obtain a

lesser sentence. Brown, however, rejected the State’s offer, and, according to

the same affidavit, she had

twice before rejected an offer of six months’ deferred adjudication in exchange

for guilty plea.