Wu, Fung Che v. The State of Texas--Appeal from Co Crim Ct at Law No 5 of Harris County

Affirmed and Memorandum Opinion filed April 12, 2005

Affirmed and Memorandum Opinion filed April 12, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01328-CR

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FUNG CHE WU, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 5

Harris County, Texas

Trial Court Cause No. 1189839

M E M O R A N D U M O P I N I O N

Appellant, Fung Che Wu, was charged by information with prostitution. See Tex. Pen. Code Ann. ' 43.02 (Vernon 2003). Despite appellant=s protestations of innocence, a jury found her guilty and the court assessed punishment at five days= confinement in the Harris County Jail and a $500 fine. In two points of error, appellant contends the evidence was legally and factually insufficient to support her conviction. We affirm.

On the night of her arrest, appellant was working as an unlicensed Amasseuse@ at Kim=s Spa in southwest Houston. Posing as a customer, Officer Shipley of the Houston Police Department Vice Division went to the establishment as part of an ongoing investigation of local AAsian-modeling@ studios and massage parlors. Shipley testified that, upon his arrival, appellant led him by the hand to a back room containing a massage table, a futon-style bed, and a side room with a walk-in shower. After motioning him towards the bed, appellant allegedly hugged and made attempts to kiss Shipley, at which time he asked, ASo how much is this going to cost me?@ Shipley testified that appellant responded to his question by making a sexually provocative gestureCa thrusting motion with her hands toward her hips.[1] Shipley believed, based on his experience as a vice officer, that such a motion signified a person=s willingness to engage in sexual intercourse. To verify his suspicions, Shipley verbally asked if appellant would provide both oral sex and sexual intercourse. Appellant again responded with few words. Instead, appellant raised her skirt, revealing her translucent G-string underwear and exposing her pubic area. At the same time, appellant allegedly said A$120@ would cover everything, and when Shipley again sought affirmations, by motioning, that he would receive both oral sex and sexual intercourse for $120, appellant answered Ayes.@ Subsequently, Shipley=s partner entered the room and arrested appellant for prostitution.

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a 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 n.12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). We will not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 ( Tex. Crim. App. 1991). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

When reviewing claims of factual insufficiency, it is our duty to examine the fact finder=s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133B134 (Tex. Crim. App. 1996). Thus, the question presented in a factual sufficiency review is, AConsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?@ Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). Thus, there are two ways in which the evidence may be insufficient:

First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond a reasonable doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can Apreponderate@ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can Aoutweigh@ the contrary proof and still be factually insufficient under a beyond a reasonable doubt standard.

Id. at 484B85.

To secure a conviction for prostitution, the State must prove beyond a reasonable doubt that the defendant knowingly agreed to engage in sexual conduct for a fee. See Tex. Pen. Code Ann. ' 43.02(a)(1) (Vernon 2003). Appellant argues that the evidence was legally and factually insufficient to support her conviction because nothing indicates she actually agreed to perform sexual acts for a fee. Specifically, appellant contends that no money exchanged hands, no knowing agreement was reached, and no other evidence supports the State=s argument that appellant was willing to engage in sexual activity.

In large part, appellant relies on the fact that a language barrier existed between Shipley and her. She testified at trial, through an interpreter, that she did not understand that Shipley was soliciting sexual activity. She further stated that she never agreed to perform any sexual acts and explained that when she motioned with her hips, she was merely attempting to remove Shipley=s hands from her waist. Furthermore, appellant claimed that she never raised her skirt, revealed her underwear, or exposed herself, and argued that the lack of other evidence, such as condoms in the Amassage@ room, proved she neither intended nor agreed to engage in sexual activity.

First, we note that the actual exchange of money is not required to sustain a conviction for prostitution. See Tex. Pen. Code Ann. ' 43.02(a)(1) (Vernon 2003) (listing the statutory elements of the offense, which do not include the actual exchange of money); Steinbach v. State, 979 S.W.2d 836, 841 n.8 (Tex. App.CAustin 1998, pet. ref=d) (A[I]n order to constitute the offense . . . a fee need not be paid.@). Also, appellant=s contention that there was no evidence of potential sexual activity, such as sexual paraphernalia in the massage room, provides little support for her sufficiency argument.[2] To the contrary, Shipley explained that in his twenty years of experience as a police officer and, more importantly, in his eight years in the vice division, he understood appellant=s actions to mean she was agreeing to engage in sexual conduct. Shipley further testified that it was appellant who first suggested a price of $120.[3] To clarify what the $120 would cover, Shipley directly asked appellant if she would perform both oral sex and sexual intercourse. In response, appellant allegedly raised her skirt and exposed herself. When Shipley again sought affirmations, by motioning, that he would receive both oral sex and sexual intercourse for $120, appellant said Ayes.@ Despite the language barrier, Shipley testified that this made it clear appellant was agreeing to engage in sexual conduct for the $120 fee. Based on this evidence, the jury found appellant guilty.

Our own review of the record indicates that the evidence was sufficient to sustain appellant=s conviction. Based on the testimony presented at trial, a rational jury could have found beyond a reasonable doubt that appellant engaged in prostitution. Furthermore, reviewing the evidence in a neutral light, we believe the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. Therefore, we hold the evidence is both legally and factually sufficient to sustain appellant=s conviction. See generally Morris v. State, 565 S.W.2d 534, 534B35 (Tex. Crim. App. 1978) (finding the evidence was sufficient to sustain a prostitution conviction where the arresting officer testified that, based on his experience, the defendant was agreeing to engage in sexual conduct when she made a Adriving motion with her body@ and suggested that $20 Awould get it done@); McCarty v. State, 616 S.W.2d 194, 196B97 (Tex. Crim. App. 1981) (holding that a conviction for prostitution was supported by sufficient evidence where implied offers were made by both the defendant and the arresting officer). Accordingly, we overrule appellant=s two points of error.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed April 12, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Due to appellant=s limited English-speaking ability, only minimal discussion took place.

[2] Actually, Shipley contradicted appellant=s claim that there was no other evidence of sexual activity by testifying that he had never seen a futon bed in a reputable massage establishment. Thus, he implied that the bed was there for some purpose other than a typical massage.

[3] Appellant asked for $120 despite the Aspa=s@ advertised price of $45 for a forty-five minute massage. Therefore, Shipley logically assumed that the $120 was payment for more than a simple massage.