# Austin v. State

> Court of Appeals of Texas · June 6, 1990 · 794 S.W.2d 408

URL: https://www.frixlaw.com/law-library/cases/9773169

## Case

- **Full name:** Kimberli AUSTIN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** June 6, 1990
- **Citations:** 794 S.W.2d 408; 1990 WL 64058
- **Precedential status:** Published
- **Opinion:** Dissent by Powers
- **Judges:** Powers, Jones, Onion
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773169

## How later opinions describe it (automated extraction)

- holding that a police officer’s testimony, based on training and experience, that a “Swedish deep muscle rub” in a massage parlor was often key words for prostitution was admissible as opinion testimony both as an expert and a lay witness
- holding that police officer properly opined, based on his personal experience, that "Swedish deep muscle rub" was code for prostitution
- holding that police officer could provide his opinion that "Swedish deep muscle rub" was a code for prostitution
- recognizing that officer could identify code term for prostitution based on his experience

## Opinion text

POWERS, Justice,
dissenting.
I believe the trial court erroneously admitted in evidence the officer’s opinion testimony. The testimony supplies, in the majority’s view, a link between Austin’s agreement for sexual intercourse and the $130 fee paid by the officer. Without the officer’s opinion that the words “Swedish Deep Muscle Rub” implied “prostitution,” no such link was established under the majority’s reasoning. Hence the error was harmful. Whether or not the officer’s opinion was properly in evidence, however, I believe the evidence insufficient to establish two essential elements of the offense: that Austin “knowingly” agreed to sexual intercourse “for a fee.” For these reasons, I dissent.
THE MAJORITY’S THEORY
The police officer testified that the words “Swedish Deep Muscle Rub,” on the sign, had a “particular meaning” to the officer, based on his “training.” The words are, he said, “often key words for prostitution,” and “in this type of massage parlor [they are] often a catch phrase for prostitution.” The “training” and “type of massage parlor” intended by the officer are not further described in the evidence. There is no evidence that the “particular meaning” held by the officer was also held by Austin or by anyone else apart from the officer.
Nevertheless, the majority opinion binds Austin to the officer’s “particular meaning” (that he knew only after his “training”) based on a series of successive, dependent inferences erected upon that meaning: (1) the “Satin Spa” was a massage parlor of the “type” the officer had in mind, even though that “type” is not otherwise described; (2) because Austin worked in that “type” of massage parlor, she must have known of the meaning that was current there in connection with the expression “Swedish Deep Muscle Rub”; therefore (3) she must have made the agreement for sexual intercourse in reference to the same “particular meaning” the officer subjectively attached to the expression “Swedish Deep Muscle Rub,” which is to say, in his words, “prostitution.”
“This cannot be done under the rule of evidence.” Lee v. State, 152 Tex.Crim. 401 , 214 S.W.2d 619, 622 (1948). "One of the cardinal principles touching the sufficiency of circumstantial evidence is that an inference based upon an inference will not suffice. Also the circumstances relied upon must exclude every other reasonable hypothesis except the guilt of the accused and must go further than to raise a probability or suspicion.” Williamson v. State, 156 Tex.Crim. 520 , 244 S.W.2d 202, 204 (1951).
THE OPINION TESTIMONY
The record shows that defense counsel levied three objections to the officer’s statement that the expression “Swedish Deep Muscle Rub” implied “prostitution” in his opinion: (1) the statement was inadmissible hearsay; (2) the meaning of the sign was not subject to interpretation by the officer’s opinion of what it meant; and (3) his interpretation was inadmissible because based upon his “training,” or what he was told by others, rather than upon “personal experience.” The last two objections referred expressly to the trial court’s statement that he thought the officer’s testimony admissible because it was opinion evidence. The trial court overruled each objection in turn.
I should think the objections were sufficient to preserve any appellate complaint based on the fact that the officer’s statement was an opinion only. The trial judge must have known the substance of defense counsel’s objection. The judge himself first characterized the evidence as “opinion" evidence as opposed to “hearsay,” and counsel’s second and third objections referred to that characterization.
I would hold inadmissible the officer’s interpretation because he testified the words “Swedish Deep Muscle Rub” were “key words” and a “catch phrase” for “prostitution.” Neither a lay nor an expert witness may give in evidence an opinion *415 that entails or amounts to a legal conclusion. Mays v. State, 563 S.W.2d 260, 262, n. 3 (Tex.Cr.App.1978). The officer’s opinion that “Swedish Deep Muscle Rub” meant “prostitution” entailed necessarily a conclusion by him regarding the elements of “prostitution” set out in Tex.Pen.Code Ann. § 43.02 (1989). Hence, his opinion was inadmissible, especially when the opinion referred to the very offense with which Austin was charged.
Secondly, I would hold the officer’s opinion inadmissible to explain what was meant by the language on the sign, there being in the evidence nothing to show that the one who placed it there intended it to have a meaning different from a “massage.” As a general rule, the opinion of a witness is not admissible to interpret the written language of another, an exception being allowed for cases where it is shown that the writer himself agreed and intended that his words should have a meaning different from their ordinary import. Ochoa v. State, 221 S.W. 973, 975 (Tex.Cr.App.1920); Rowan v. State, 57 Tex.Crim. 625 , 124 S.W. 668 , 672 (1910). There is no such showing here. The case of Wood v. State, 573 S.W.2d 207 (Tex.Cr.App.1978), cited in the majority opinion, does not purport to deviate from the general rule, nor does it even involve the general rule. Rather, that case dealt with an officer’s opinion concerning “what certain symbols stood for,” as opposed to the meaning of words written in the English language or a legal conclusion such as the officer gave here.
Thirdly, I would hold the officer’s opinion inadmissible because the State never demonstrated its materiality as an interpretation of the sign. The officer testified the words had a “particular meaning” to him when found in “this type of massage parlor,” but nothing in the evidence brought the “Satin Spa” into the “type” of massage parlor the officer had in mind, nor did the evidence show that Austin also understood the words as the officer understood them based on his training. “Without such a demonstrated nexus, there was no reasonable basis for believing that the” particular meaning held by the officer was material. Pinson v. State, 778 S.W.2d 91, 94 (Tex.Cr.App.1989).
Fourthly, if the officer is viewed as a lay witness his want of personal knowledge was evident. He stated his opinion was based on his “training.” In all events, the evidence does not show that he had any personal knowledge or experience in the matter. I do not, in consequence, understand the majority’s reference to the officer as a lay witness, for the opinion of a lay witness must rest on personal knowledge to be admissible. Tex.R.Cr.Evid. 602 (Pamp.1990); Goode, Wellborn & Sharlot, Texas Rules of Evidence: Civil and Criminal § 701.2, at 491 (1988).
In summary, I would hold for any of the foregoing reasons that the trial court erred in admitting the officer’s opinion in evidence. The error must be viewed as harmful and requiring reversal under the majority’s theory. That theory reasons that Austin’s agreement for sexual intercourse and the fee paid by the officer both had reference to the sign as the officer interpreted it and as Austin must have understood it because she worked where she did. Without the officer’s interpretation, there is nothing to connect the $130 fee to Austin’s agreement for sexual intercourse as opposed to a massage characterized as a “Swedish Deep Muscle Rub.” Stated another way, without the officer’s opinion the evidence is clearly insufficient to establish beyond a reasonable doubt the necessary link between the fee and Austin’s agreement for sexual relations.
SUFFICIENCY OF THE EVIDENCE
I would hold that the evidence was insufficient in any event to sustain a rational finding, beyond a reasonable doubt, that Austin knowingly agreed to have sexual intercourse with the officer for a fee. Tex. Pen.Code Ann. § 43.02(a)(1) (1989); see Jackson v. Virginia, 443 U.S. 307 , 319 n. 12, 99 S.Ct. 2781 , 2789 n. 12, 61 L.Ed.2d 560 (1979); Jackson v. State, 672 S.W.2d 801, 803 (Tex.Cr.App.1984).
The evidence is uncontradicted that Austin accepted from the officer $130.00 for a massage characterized as a “Swedish Deep *416 Muscle Rub,” and that she subsequently agreed to have sexual relations with the officer. The issue on appeal concerns the sufficiency of the evidence to show that the $130, paid initially and nominally for a “massage,” was actually understood by Austin from the outset as payment for sexual relations. Unless this be shown, one may not reasonably conclude that Austin “knowingly” agreed to have sexual intercourse “for a fee.”
Where a fee is paid or agreed upon for explicit sexual activity, the “knowing” and “fee” elements are easily inferred. See, e.g., Laverne v. State, 737 S.W.2d 379 (Tex.App.1987), remanded on other grds., 753 S.W.2d 404 (Tex.Cr.App.1988) (defendant offered explicit sexual conduct and asked the officer how much money he had, replying “that is enough” when the officer said $40); Young Sun Lee v. State, 681 S.W.2d 656 (Tex.App.1984, pet. ref’d) (defendant received money without reference to any kind of conduct on her part, asking what the officer wanted and saying “it was covered in the money ... already given” when the officer proposed an explicit sexual act); West v. State, 626 S.W.2d 159 (Tex.App.1981, pet. ref’d) (defendant offered two kinds of explicit sexual acts for different prices over and above the $30 paid by the officer for “modeling” services); McCarty v. State, 616 S.W.2d 194 (Tex.Cr.App.1981) (defendant “haggled” over price of explicit sexual act she had proposed). A case of that kind is not a circumstantial-evidence case.
In the present case, there was no initial agreement for conduct on Austin’s part that was explicitly sexual. Instead, the officer paid $130 for a “massage” described as a “Swedish Deep Muscle Rub.” If that meant sexual conduct, it was only by innuendo or suspicion. “Swedish Deep Muscle Rub” was ambiguous at best as to what it meant; nominally at least it was a “massage.” Thus, the evidence does not show, without more, a link between the fee paid by the officer and Austin’s subsequent agreement for sexual relations, reached after the fee was paid and the massage begun. The link, and hence the finding of the requisite elements (“knowing” and “for a fee”), must be inferred, if at all, from the totality of the circumstances shown in the evidence. The present case is thus a circumstantial-evidence case.
The majority infer the necessary link on this reasoning: (1) the expression “Swedish Deep Muscle Rub” implied, according to the officer’s subjective opinion, sexual intercourse; (2) Austin must have known that the expression implied sexual intercourse because she worked in a “type” of massage parlour where that meaning was current; (3) Austin accepted the stated price of $130 for a “Swedish Deep Muscle Rub,” declining any additional sum saying “it’s all taken care of;” (4) therefore, Austin’s initial acceptance of the $130 must have had reference to the sexual intercourse implied in the expression “Swedish Deep Muscle Rub.” I cannot accept this reasoning as a basis for connecting the $130 to Austin’s subsequent agreement for sexual relations. At least, I cannot do so as a basis for making the necessary connection beyond a reasonable doubt. I refer again to the stepladder of inferences upon which the majority rest their opinion.
In discussing the matter further, I shall refer to two decisions that Austin does not cite in her brief, as pointed out in the majority opinion. They are Trippell v. State, 535 S.W.2d 178 (Tex.Cr.App.1976) and Roper v. State, 652 S.W.2d 398 (Tex.Cr.App.1983). That Austin does not cite them does not mean they vanish from the pages of our State’s jurisprudence. We are bound by stare decisis to follow any applicable point of law laid down in them whether she cites them or not.
In Trippell , the Court reversed a judgment of conviction for aggravated promotion of prostitution alleged against the operator of a “health spa.” The Court stated that it was difficult to characterize as “prostitution” the sexual act of a masseuse which was outside the scope of the massage for which the officer had nominally paid, where “no further money was exchanged.” Trippell, 535 S.W.2d at 181 . In Roper , the Court found the evidence insufficient to show the defendants en *417 gaged in sexual conduct “for a fee.” The Court reasoned: (1) the evidence did not show that money was exchanged between the officers and the defendants personally (the officers had paid the money to a male who greeted them as they “entered the Golden Girl Studio”); (2) the Court declined to interpret the money nominally paid by the officers for “two contact sessions” as payment for the sexual conduct in which the two defendants engaged later; and (3) there was no evidence that the two defendants “negotiated” a price for their sexual favors or received money for them. Roper, 652 S.W.2d at 399 . The third factor could only mean there was no evidence of any additional sum paid to or negotiated with the defendants, for the officers had paid for “contact sessions” on entering the “studio.”
I believe Trippell and Roper rather clearly lay down the following proposition of law: where a stated price is paid or agreed upon in exchange for services that are not explicitly sexual in nature, such as a “massage” or a “contact session,” some additional fee must be paid, agreed upon, or negotiated in order to render any subsequent agreement for sexual services “prostitution” because engaged in “for a fee.” I would apply that proposition here where the “massage” was described as a “Swedish Deep Muscle Rub.” In my understanding of Trippell and Roper , this legal principle is inescapable. It is no use to pretend the opinions do not exist; it is up to the Court of Criminal Appeals to change the proposition for which they stand. It is not our place to avoid that proposition or to try to explain it away when it is clearly applicable and controls the case.
It is undisputed that no such additional fee is shown in the evidence in Austin’s case. The majority reason on the opposite theory — that the fee in question was the $130 paid for a “Swedish Deep Muscle Rub,” which expression implied sexual services from the outset. But it is precisely in reference to such ambiguous expressions that Trippell and Roper require evidence of some additional sum before the fee element may be inferred beyond a reasonable doubt.
I have not mentioned heretofore a piece of the evidence omitted from the majority opinion. I refer to the officer’s testimony that he paid not for sexual services but for a massage, which he received but which “terminated” by mutual agreement after 20 minutes of the 60-minute “session” for which he had paid. The agreement for sexual relations followed. I refer also to the officer’s testimony that any sexual activity Austin had agreed “to engage in was to be engaged in after that session was ended; ....” These statements by the officer bring the case squarely within Trip-pell and Roper , of course. “Having already paid for the massage it was difficult to characterize [Austin’s] actions as prostitution under V.T.C.A. Penal Code, Sec. 43.-02.” Trippell, 535 S.W.2d at 181 (emphasis added).
More to the point for present purposes, however, the officer was called by the State, and all of his testimony was consistent and uncontradicted. This is not a case where the trial court was entitled to believe one or the other of two inconsistent items of testimony. Rather, the parts of the officer’s testimony to which I refer are inconsistent only with the majority’s inferences and theory.
The officer testified that Austin replied “it’s all taken care of” when the officer asked if more money was required for the sexual services contemplated in the subsequent agreement. This and the officer’s opinion of the meaning of “Swedish Deep Muscle Rub,” augmented by the series of inferences mentioned above, constitute the basis upon which the majority rely in finding the evidence sufficient regarding the “fee” and knowing-conduct elements of the offense. I concur that Austin’s statement could mean that she understood all along that the $130 constituted payment for sexual relations if the officer wished them as part of, or in lieu of, a bona fide massage. But Austin’s statement does not necessarily carry that meaning because the statement is itself uncertain and ambiguous. Its meaning depends upon the circumstances in which it was uttered.
*418 The case against Austin is entirely one of circumstantial evidence because the evidence shows that under the initial agreement the $130 constituted payment for a massage as opposed to payment for explicit sexual services. Thus, we may not affirm the judgment below unless the evidence excludes every reasonable hypothesis except Austin’s guilt. The officer’s testimony raised such a hypothesis when he stated that Austin’s agreement for sexual relations contemplated activity to occur after the massage “session” ended. This implies that the $130 was paid only in consideration of a bona fide massage, rather than for sexual relations. The officer stated, moreover, that he might have gotten a bona fide massage for the full 60 minutes if he had wished. This testimony is inconsistent with the theory that the $130 was paid for sexual services in the very beginning, and it naturally raises in my view the hypothesis that Austin’s agreement for sexual relations was unrelated to the original massage for which the $130 was charged, so that her statement “it’s all taken care of” might have meant simply that her agreement for sexual relations was gratuitous. I find in the record nothing to exclude that hypothesis.
While the evidence unquestionably raises a suspicion regarding Austin’s conduct, I would hold the evidence insufficient to sustain a finding by a rational trier of fact, beyond a reasonable doubt, that she agreed to sexual relations “knowingly” and “for a fee.”
I would therefore reverse the conviction.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773169. Public record. Not legal advice.