Elvis Lee Gordon v. State ( 2006 )

Opinion filed April 13, 2006

Opinion filed April 13, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00178-CR

                                                     __________

                                    ELVIS LEE GORDON, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 350th District Court

                                                          Taylor County, Texas

                                                   Trial Court Cause No. 6450-D

                                                                   O P I N I O N

The jury convicted appellant of aggravated promotion of prostitution and assessed punishment at confinement for eight years.  Appellant attacks his conviction in two issues.  We affirm.

                                                        Sufficiency of the Evidence

In his first issue, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction.  In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond‑a‑reasonable‑doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).  The jury is the sole judge of the weight and credibility of the witnesses= testimony, and due deference must be given to the jury=s determination.  Tex. Code Crim. Pro. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 8‑9.

Officers Roger Lambert and James Young of the Abilene Police Department testified that they were working undercover in an investigation of prostitution activities occurring in the 1000 block of Cypress Street in Abilene on May 1, 2003.  Upon observing Kathryn Rose standing outside of a house on Cypress Street, the officers initiated a conversation with her.^[1]  Officer Lambert negotiated an agreement with Rose wherein she would perform sexual acts on both Officers Lambert and Young for $20.  Rose initially wanted to perform the acts in her home located at 1038 Cypress Street, but the officers declined this invitation.  Instead, the officers transported Rose in their unmarked vehicle to a nearby alley whereupon they arrested her for prostitution.

After interviewing Rose at the police station, Officers Lambert and Young transported her back to 1038 Cypress Street with the intent of making another prostitution arrest with Rose=s assistance.  Rose entered the house in order to ask another prostitute to come out to the officers= vehicle.  Rose shortly returned from the house with appellant and Angela Ballard following her. The officers were surprised that appellant exited the house with Rose because they did not believe that he was there at the time that they returned.

Officer Young testified that appellant initiated a conversation with Rose by asking her Awhere his money was and where she had been.@  Appellant became very agitated when Rose told him that she had performed a sexual act on Officer Young without being paid for it in advance.  Appellant then instructed Officer Young that he had to immediately pay for the sexual act which Rose had purportedly performed on him before he left with Rose again.  Officer Young stated that appellant additionally told Rose A[y]ou know the rules@ in a loud and demanding manner.  When Officer Young told appellant that he would pay for the sexual acts after they were performed, appellant responded to Officer Young by telling him Athat=s not how he conducts his business.@  Appellant additionally told Officer Young that he was watching out for the girls that live in the house.  Officer Young testified that Ballard made similar statements to Rose by telling her A[y]ou know the rules@ and A[t]hat=s not how we do business.@  Appellant subsequently ordered Rose to exit the officers= vehicle.  The officers arrested appellant at this time.  Officer Lambert=s description of the encounter with appellant mirrored Officer Young=s testimony.  Officer Lambert recalled appellant stating A[t]hat=s not how I run my operation@ during the confrontation.

In addition to the arresting officers, Rose and Jaylee Moore testified at trial.  Rose testified that appellant Agot her into prostitution.@  Rose stated that appellant would set up the Atricks@ for her and that he would bring tricks over to the house.  She further testified that appellant would get all of the money she received from prostitution and that he would buy crack cocaine with the money. Appellant would then split the crack cocaine with Rose.  Rose testified that appellant had lived at the house for six months and that he took all of the money made by the other prostitutes that lived there.  Rose specifically testified that appellant controlled, managed, and supervised her prostitution activities.

Moore testified that appellant controlled the house located at 1038 Cypress Street. She described the house as Aa place to come if you had money or wanted to buy drugs or perform sex or a lot of things to that nature.@  Moore further testified that she gave the money she made from prostitution to appellant and that she witnessed Rose give the money she made from prostitution to appellant as well.  She also observed appellant taking money from men who came to the house to have sex with the prostitutes that lived there.  Moore testified that appellant established the rules for the house and that she and Rose were required to abide by those rules.

Appellant testified on his own behalf at trial.  He described his relationship to Rose, Moore, and the other women who worked as prostitutes out of the house as that of a Aguardian angel.@  He denied that he served as their pimp.  While he admitted taking money earned by the prostitutes, he testified he did so as a service to them.  Appellant testified that he acted as the prostitutes= agent for purchasing drugs for them.  He stated that this arrangement was beneficial to the prostitutes because he was able to get more drugs than they would be able to purchase for the same amount of money. Appellant denied making any of the comments attributed to him by Officers Young and Lambert during the confrontation preceding his arrest.

The indictment alleged that appellant engaged in the following conduct:

[T]hat on or about the 1st day of May, 2003, and anterior to the presentment of this indictment, in the County and State aforesaid, ELVIS LEE GORDON did then and there knowingly own, invest in, finance, control, supervise and manage a prostitution enterprise that used at least two (2) prostitutes, namely Kathryn Rose and Jaylee Moore.

See Tex. Pen. Code Ann. ' 43.04 (Vernon 2003).  Appellant=s legal sufficiency challenge focuses on the date alleged in the indictment (May 1, 2003).  He contends that the evidence is insufficient to support his conviction because there is no evidence that he controlled Moore on May 1, 2003.  Appellant=s efforts to restrict the review of the evidence to acts only occurring on May 1, 2003, are not supported by law.  The Aon or about@ language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). With respect to Moore, she testified that she stayed at the house controlled by appellant from the middle of April to the middle of May.  Accordingly, there is ample evidence that appellant controlled the prostitution activities of Rose and Moore on a date that was anterior to the presentment of the indictment and within the statutory limitations period.  Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt that appellant committed the charged offense. 

Appellant characterizes his factually sufficiency challenge as follows: 

Considering the evidence in this case, it is manifestly unjust for the jury to accept as credible proof the testimony of convicted drug addicted prostitutes, without the testimony of Angela Ballard, a missing witness, and Jaylee Moore, a multiple convicted thief, drug dealer, prostitute[.]

As noted previously, the jury is the sole judge of the weight and credibility of the witnesses= testimony.  The jury was free to reject the credibility of Rose and Moore based upon their past conduct but chose not to do so.  The testimony of Rose and Moore regarding appellant=s control of their prostitution activities was obviously significant.  The evidence of the words used by appellant during his confrontation with Officers Young and Lambert was also significant. Viewing all of the evidence in a neutral light, the evidence supporting the jury=s verdict was not so weak as to render it clearly wrong. Furthermore, the evidence contrary to the verdict essentially consisted of appellant=s own self-serving testimony.  It was not so strong that the beyond‑a‑reasonable‑doubt burden of proof could not have been met.  Appellant=s first issue is overruled.

                                            Angela Ballard=s Statements

Appellant contends that the trial court erred in admitting the out-of-court statements of Ballard at trial.  Ballard did not testify at trial.  However, the statements which she made during appellant=s confrontation with Officers Young and Lambert were admitted at trial.  Officer Young initially described Ballard=s statements during the confrontation as follows:

She kept telling, you know, Rose, you know, AYou know the rules.  That=s not how we do business,@ and that they have to have the money up front. You know she kept saying B you know, parroting the same thing that Gordon was saying, you know, throughout this whole incident.

This testimony was elicited from Officer Young without objection.  Officer Lambert also testified without objection that Ballard told Rose A[y]ou know to get paid up front; you know to get paid up front@ during the confrontation.  Appellant made a hearsay objection to the third instance when the  State offered evidence of Ballard=s statements during the confrontation.  After the trial court overruled the objection, Officer Lambert repeated his previous testimony that Ballard told Rose that she was supposed to be paid up front before performing an act of prostitution.

In order to preserve an evidentiary complaint for review, a party is required to object each time the inadmissible evidence is offered.  Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). A[I]t is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection.@  Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).  Thus, appellant failed to preserve his complaint regarding the statements which Ballard made during the confrontation by not objecting to each instance when this evidence was offered.  We note in this regard that appellant testified extensively about the matters which he believed Ballard stated to the police during the confrontation. He asserted that Ballard made most of the statements which the police officers attributed to him.  Appellant=s second issue is overruled.

                                                               This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

April 13, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

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^[1]Officer Lambert recognized Rose from a previous encounter.