Yon Sun Conden v. The State of Texas--Appeal from County Criminal Court No 6 of Dallas County

No. 04-98-00170-CR
Yon Sum CONDEN,
Appellant
v.
The STATE of Texas,
Appellee
From the County Criminal Court No. 6, Dallas County, Texas
Trial Court No. MB97-48063-G
Honorable Phil Barker, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 23, 1998

AFFIRMED

Yon Sun Conden appeals her conviction for prostitution under Tex. Pen. Code Ann. 43.02(a)(1) (Vernon 1994). Because we find the evidence factually sufficient, we affirm the trial court's conviction.

Factual and Procedural Background

The State and Conden offer two versions of the same event. The State offered testimony indicating that after receiving complaints of prostitution activity, Officer Michael Mendez and two other detectives, investigated Yokohama Tan, a tanning salon in Dallas, Texas. Mendez testified that once he entered the tanning salon, he was asked to select one of the women employees. Mendez selected Yon Sun Conden and she led him to one of the small rooms in the back of the establishment. Upon entering the room, Conden asked Mendez what he wanted. He told Conden he wanted oral sex. Conden replied, "don't speak to me like that." Mendez apologized and started to leave. Before Mendez could leave, Conden stopped him and asked him to swear he was not a police officer. Mendez swore he was not a police officer and Conden again, asked him what he wanted. He responded that he wanted oral sex and she agreed to comply for $100. As she began taking his clothes off, Mendez identified himself as a police officer and arrested Conden.

In contrast, Conden testified that her duties were only to administer tanning, body shampoo, and oil rubdowns. When the three men entered Yokohama Tan, Conden explained the services and fees. She told them that it would cost $40 for one-half hour session and $60 for an hour session of tanning, body shampoo, or oil rubdowns. Mendez selected Conden and she took him to a room and tried to further explain the fees. Conden testified that Mendez acted as if he spoke no English at all; however, he made motions with his hand indicating that he wanted oral sex. Conden testified that she did not respond to his requests and told him the fees were for tanning, body shampoo, and oil rubdowns. Mendez did not have any money so he left the room indicating he would be right back. One of the other officers came back into the room with Mendez and offered Conden $100 and she refused. Conden testified that Mendez showed her his badge and placed her under arrest.

At a bench trial, Conden was found guilty of prostitution, sentenced to five days confinement in jail, and assessed a fine of $300. Factual Sufficiency of the Evidence

In her sole point of error, Conden contends the evidence is factually insufficient to support her conviction of prostitution. In reviewing the factual sufficiency of the evidence, we view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In a bench trial, the trial judge is the sole trier of fact, and the weight to be given contradictory testimonial evidence is within the judge's sole province. See Cain v. State, 958 S.W.2d 404, 408-409 (Tex. Crim. App. 1997) (noting trier of fact determines the weight to be given to conflicting testimony because it turns on evaluation of credibility and demeanor). The trial judge may accept any part or all of the testimony given by the witnesses. See Wright v. State, 603 S.W.2d 838, 840 (Tex. Crim. App. 1979). Conflicting evidence will not result in reversal if there is enough credible testimony to support the conviction. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Review of the evidence must also be appropriately deferential so the appellate court is not merely substituting its judgment for that of the trier of fact. See Clewis, 922 S.W.2d at 133.

A person commits the offense of prostitution if the person knowingly offers to engage in sexual conduct in return for a fee. Tex. Pen. Code. Ann. 43.02(a)(1) (Vernon 1994). Evidence that supports Conden's innocence includes her own testimony indicating that she never agreed to perform any sexual act with Mendez and that Mendez arrested her without cause. Evidence supporting Conden's conviction consists of Officer Mendez's testimony that Conden agreed to provide oral sex for $100 dollars. Because we defer to the trial court's reconciliation of inconsistent testimony, we find that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Consequently, we hold that the evidence introduced at trial was factually sufficient to support the conviction of prostitution.

The judgment of the trial court is affirmed.

CATHERINE STONE

JUSTICE

DO NOT PUBLISH

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