Yong S. McCollum v. State ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-90-122-CR





YONG S. McCOLLUM,

APPELLANT

vs.



THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 5, TRAVIS COUNTY, NO. 330-452, HONORABLE WILFRED AGUILAR, JUDGE

PER CURIAM

Appellant was charged by information with the offense of prostitution. Tex. Pen. Code Ann. § 43.02 (1989). She entered a plea of not guilty. The jury returned a guilty verdict and the court assessed punishment at ten days' confinement and a $1000.00 fine.

I. VENUE

In her first point of error, appellant contends the evidence is insufficient to establish that the alleged offense took place in Travis County, Texas. The State concedes that the only venue evidence that the jury heard consisted of officer Richard Blackmoor's testimony that:  (1) he was a vice investigator for the Austin police department; (2) his duties extended citywide; and (3) on the date of the offense in question, he went to the Japanese Geisha House located at 9401 South IH-35. Nevertheless, the State argues the venue evidence is sufficient because:  (1) appellant waived error; (2) any rational trier of fact reasonably could have found on the evidence that the offense took place in Travis County; and (3) the court may judicially notice the easily ascertainable fact of venue in this case. We need only address the first of the State's contentions.

A plea of not guilty puts in issue the allegations of venue and the State must prove such allegations or a conviction will not be warranted. It is unnecessary for the defendant to put venue in issue by either special plea or negation of the allegation; venue must be proved as alleged. Black v. State, 645 S.W.2d 789, 790 (Tex. Cr. App. 1983). However, the defendant has the burden of objecting to the prosecution's failure to prove venue. If the defendant does not properly raise the issue before the verdict, it is presumed venue was proved in the trial court, unless the record affirmatively negates whatever proof the State gave on the matter of venue. Tex. R. App. P. Ann. 80(d) (Pamph. 1991); Holdridge v. State, 707 S.W.2d 18, 21-22 (Tex. Cr. App. 1985); Vasquez v. State, 491 S.W.2d 173, 175 (Tex. Cr. App. 1973). In criminal cases venue is not an element of an offense and need only be proven by a preponderance of the evidence. Proof of venue may be demonstrated by either direct or circumstantial evidence. Black, 645 S.W.2d at 790; Edwards v. State, 427 S.W.2d 629, 636 (Tex. Cr. App. 1968) (opinion on rehearing).

Blackmoor testified before the jury to the venue facts recited above. Then, outside the presence of the jury, he responded to additional venue related questions. Appellant challenged the admissibility of this latter testimony, lodging the following objection: "I want to object to his testimony being in Travis County that it is not admissible under 701, that he does not have personal knowledge of it. . . . What I'm objecting to is the means of the State's attempting to establish location in Travis County." The court overruled the objection and the jury returned to the courtroom. Despite the court's ruling, the State elicited no further testimony related to venue during the remainder of the trial.

After both sides rested, appellant moved for an instructed verdict as follows:

We are moving for an instructed verdict based on the testimony heard by the Court as well as by the jury members. Our contention, of course, is that all the elements of the offense have certainly not been established; that it has not been established that here was any agreement for, quote, contact between the genitals of R. Blackmoor and the mouth of Yong McCollum for a fee, that being not only a necessary element, but the quintessential element of this offense. We are moving for an instructed verdict based on an insufficiency, our position being there's an insufficiency of evidence to support a verdict of guilty or a judgment of guilty.

In his motion for instructed verdict, appellant did not raise the State's alleged failure to prove venue in Travis County. Compare with Holdridge, 707 S.W.2d at 20 (motion for instructed verdict on grounds statute must be strictly construed on complaining witness' failure to state accused offered sexual intercourse for a fee insufficient to satisfy offer element held insufficient to place venue in issue); Etchieson v. State, 574 S.W.2d 753, 759 (Tex. Cr. App. 1978) (opinion on rehearing), cert. denied, 440 U.S. 936 (1979); Bass v. State, 464 S.W.2d 668, 669 (Tex. Cr. App. 1971) (motion for instructed verdict alleging State failed to prove jurisdiction insufficient to raise venue issue). Appellant did not move for an acquittal or otherwise bring the matter to the court's attention. Nor does the record affirmatively negate the State's venue evidence. ⁽¹⁾

Appellant's earlier objection to the admissibility of the State's venue evidence did not apprise the trial court of his contention that the evidence was insufficient to prove venue. Appellant first raised the venue issue in her motion for new trial. The record does not affirmatively reflect improper venue, this Court will presume that venue was proven. Gonzales v. State, 486 S.W.2d 380, 381 (Tex. Cr. App. 1972). Appellant's first point of error is overruled.

II. SUFFICIENCY OF THE EVIDENCE

In her second point of error, appellant challenges the sufficiency of the evidence to support her conviction. Specifically, she argues the evidence fails to establish that she offered or agreed to contact between her mouth and Blackmoor's genitals.

A. Standard of Review

The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. This Court does not ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, 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, 318-19 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Cr. App. 1981).

B. The Evidence Most Favorable to the Prosecution

Upon entering the Japanese Geisha House, Blackmoor was greeted by two females, one of whom was appellant. Blackmoor requested a massage session. He was taken to a private room by appellant. The room was furnished with a bed, sofa and table. Blackmoor purchased a thirty-minute session for sixty dollars, which he paid directly to appellant. Appellant told Blackmoor to make himself comfortable and she left the room for a few minutes. Blackmoor disrobed and lay on his stomach on the bed. Appellant returned wearing a "revealing" black negligee. She massaged Blackmoor's shoulders, buttocks, thighs and legs with powder for approximately twenty-five minutes. Blackmoor repeatedly asked if he could get anything else for his sixty dollars. In response, appellant asked him several times if he was a "cop," at one point telling him he "smelled like a cop." Blackmoor told her he worked for IBM.

Appellant encouraged Blackmoor to buy more time. Blackmoor told appellant he wanted to purchase a "blow job." ⁽²⁾ She told him to buy more time. Blackmoor gave her fifty dollars. Appellant requested Blackmoor's car keys and driver's license for the purpose of proving whether or not he was a police officer. He gave her the requested items and she left the room. When she returned, Blackmoor was sitting on the bed. Appellant walked toward him, pulled down the straps of her negligee and exposed her breasts. She told Blackmoor to touch them. He complied. Blackmoor then asked her if he could get a blow job from her and if he would have to pay more for that. Appellant responded that he had paid enough and did not need to pay anything else. Appellant then asked Blackmoor to place her hand on his genitals. He again complied. Appellant next requested that Blackmoor lie on his back on the bed, which he did. Blackmoor testified that appellant then walked over to a nearby table, picked up a condom, unwrapped it and came back over to Blackmoor. She attempted to place the condom on Blackmoor's penis. At this point, Blackmoor advised appellant that he was a police officer and placed her under arrest.

C. Discussion and Holding

Appellant argues she never "offered" oral sex for a fee, and never made any overt movement toward oral sex. She further argues that her conduct was consistent with sexual conduct other than agreeing to engage in oral sex for a fee and, this created a reasonable doubt as to her guilt.

Questions regarding the sufficiency of the evidence must be resolved in light of the charge which is given. Polk v. State, 749 S.W.2d 813, 815 (Tex. Cr. App. 1988). The relevant portion of the charge recites:

[I]f you believe from the evidence beyond a reasonable doubt, that the defendant, Yong McCollum, on or about the 8th day of March, 1989, in the County of Travis, State of Texas, did then and there knowingly offer or knowingly agree to engage in sexual conduct for a fee, to-wit: that the said Yong McCollum offered or agreed to have deviate sexual intercourse, that is contact between the genitals of R. Blackmore [sic] and the mouth of Yong McCollum for a fee, you will find the defendant guilty of the offense of prostitution and so say by your verdict. ⁽³⁾

We believe a rational trier of fact could conclude beyond a reasonable doubt that appellant's conduct evidenced an agreement to engage in the sexual conduct specified in the charge for a fee. After Blackmoor requested a "blow job" and paid appellant an additional fifty dollars, appellant exposed her breasts and requested that he touch them. Blackmoor complied. When he asked if he could get a "blow job" from her and how much more he would have to pay for it, she responded that he had paid enough. See Young Sun Lee v. State, 681 S.W.2d 656, 661 (Tex. App. 1984, pet. ref'd) (statement by appellant that "this is covered in the other money you gave" held sufficient to show she offered or agreed to sexual conduct for a fee). Blackmoor testified that he regarded appellant's attempt to place the condom on his penis as "an overt movement leading to the act" [oral sex]. He further testified that the condom was used to "prevent the transmission of diseases." This statement is not inconsistent with a finding that appellant's conduct was preliminary to an oral sex act. Finally, the foregoing notwithstanding, an overt act is not a required element of the offense. See Mattias v. State, 731 S.W.2d 936, 937 (Tex. Cr. App. 1987), cert. denied, 109 S.C. 86 (1988). Appellant's second point of error is overruled.

The judgment of conviction is affirmed.

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Affirmed

Filed:  August 30, 1991

[Do Not Publish]

1. At best, the State's evidence is ambiguous. That is, it does not affirmatively show that 9401 S. IH-35 is, or is not, in Travis County. Under the facts in this case, such ambiquity is resolved in favor of the State. Holdridge, 707 S.W.2d at 22.

2. Blackmoor testified that the term "blow job" is a street term for oral sex. Specifically, he was trying to get appellant to place her mouth on his genitals.

3. The language in the charge tracks that of the statute: A person commits an offense if he knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee. Tex. Pen. Code Ann. § 43.02(a)(1) (1989).