Hsu, Joseph Yo-Se v. State ( 2004 )

Affirmed and Memorandum Opinion filed June 22, 2004

Affirmed and Memorandum Opinion filed June 22, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01105-CR

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JOSEPH YO-SE HSU, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court At Law No. 12

Harris County, Texas

Trial Court Cause No. 1174397

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M E M O R A N D U M   O P I N I O N

Appellant Joseph Yo-Se Hsu appeals his conviction for promotion of prostitution, arguing the trial court erred by (1) overruling appellant=s hearsay objection during the testimony of two police officers; (2) sustaining the State=s objection when appellant attempted to impeach a witness with questions about a written document; and (3) denying his motion for instructed verdict.  We affirm.

I.  Factual and Procedural Background

On March 6, 2003, Victor Barberena and T.J. Chadwick, agents of the Texas Alcoholic Beverage Commission, entered the V.I.P. Lounge in Houston in response to complaints that the lounge was a venue for prostitution.  When the undercover agents arrived, appellant, later identified as a manager at the club, seated the agents, conversed briefly with Agent Chadwick, and sent AMelissa@ to the table for an explanation of the establishment=s Arules.@  According to Agent Barberena=s testimony, Melissa informed the agents that the charge for a lap dance was $40.  Agent Barberena stated that he and Agent Chadwick inquired into the price for sex with a woman at the lounge.  According to his testimony, Melissa pointed to three women in the establishment.  The agents indicated an interest in one of the women, and Melissa informed them that the particular woman was available.

Appellant returned to the table a short time later to confirm that Melissa had explained the rules.  Barberena testified that he inquired about the cost of sex, to which appellant replied, Athat was up to the girls.@  Appellant then called over AJudy@ and told her to take care of the agents.  Agent Barberena initially offered Judy $50 for sex; he testified that she told him they could discuss it later.  Agent Barberena testified that he then offered Judy $150 and she accepted the offer; however, Judy denied doing so.

Approximately two months later, appellant was charged by information with promotion of prostitution.  See TEX. PEN. CODE ANN. ' 43.03 (Vernon 2003).  A jury found appellant guilty, and the trial court sentenced him to 180 days in the Harris County Jail.

II.  Issues Presented

Appellant presents the following issues for appellate review:

(1)       Did the trial court err in overruling appellant=s hearsay objection to the testimony of the two officers about their conversations with two female employees of the lounge?

(2)       Did the trial court err in sustaining the State=s objection when appellant attempted to impeach a witness with questions about a written document?

(3)       Did the trial court err in denying appellant=s motion for instructed verdict?

III.  Analysis and Discussion

A.        Did the trial court err in sustaining the State=s objection when appellant attempted to impeach a witness with questions about a written document?

In his second issue, appellant contends he was denied his right to confront a witness when the trial court sustained the State=s objections during defense counsel=s re-cross examination of Agent Barberena. Appellant claims the denial of this right occurred when defense counsel attempted to impeach Agent Barberena with statements made in his written report of the incident.  The State objected twice on the grounds of improper impeachment, and the trial court sustained the first objection and requested defense counsel rephrase the question.  The trial court again requested defense counsel rephrase the question following the second objection and defense counsel complied.^[1]

The State contends appellant failed to properly preserve his issue for appellate review because appellant did not object on Confrontation Clause grounds at trial.  See Tex. R. App. P. 33.1(a).  Failure to object to error under the Confrontation Clause waives the issue for appellate review.  See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000). In addition, to preserve for review the issue of whether appellant=s cross-examination of a witness was unduly limited, appellant must show by bill of exceptions or otherwise what questions he wished to raise and the responses he expected.  Easterling v. State, 710 S.W.2d 569, 578 (Tex. Crim. App. 1986). In this case, appellant made no offer of proof or bill of exceptions showing the testimony that he was attempting to elicit.  In fact, defense counsel rephrased his question and continued with his examination, raising alleged inconsistencies between Agent Barberena=s testimony and the report.  Because appellant did not show the testimony that he was attempting to elicit, he has not preserved the issue for this court=s review.  See id.  Accordingly, we overrule appellant=s second issue.

B.        Did the trial court err in overruling appellant=s hearsay objection to the testimony of the two officers about their conversations with two female employees of the lounge?

In his first issue, appellant contends the trial court erred when it overruled his hearsay objection to Agent Chadwick=s and Agent Barberena=s testimony regarding their conversations with Melissa and Judy.

Hearsay is defined as Aa statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.@ Tex. R. Evid. 801(d).  The admissibility of hearsay evidence is a question for the trial court, reviewable under an abuse-of-discretion standard.  See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).  

Appellant alleges the trial court erroneously admitted hearsay, over his objections, during the following exchange with Agent Barberena:

Prosecutor:

Q:  And at this time, Officer Barberena, you had set up for a lap dance so there was no type of sex as of yet, right, Officer Barberena?

A:  No B there was, yes.  Once Melissa approached the table and explained to us what the rules of B the house rules were, my partner and I discussed with her as far as if we wanted to have sex, who would we talk to.  And at that point, at this time, she pointed out the three of B

Defense Counsel:  Your Honor, Ashe pointed out,@ if he=s going to go into what she said, that would be hearsay.

The Court:  Overruled.

A:  Okay. She then proceeded to point to three girls that were in the establishment.  At that time we pointed to one of the girls that we were interested in and she had said she was available.

Defense Counsel:  Objection, Your Honor.  Hearsay.

The Court:  Overruled.

***

Q:  So, then after you picked out one of the girls you were interested in, then what happened, Officer Barberena?

A:  The defendant approached the table, and I specifically asked him how much he would charge for sex.  He said B

Defense Counsel:  Objection, Your Honor.  Hearsay.

The Court:  Overruled.

A:  He said it would be $40 to go back for a lap dance and that was up to the girls.

Q:  So, it was up to the girls according to the defendant how much she would charge for sex?

A:  Yes.

***

Q:  Then what happened after that, after he instructed that it would be up to the girl how much B

A:  I instructed him to call her over, and he proceeded to call her.  She approached the table; and as she approached the table, he instructed her to take care of us and treat us well.

Q:  And then what happened?

A:  Then I began [a] conversation with the girl, and I told her I was interested in going back there with her and I told her what I was interested in, sex.  At this time I paid the $40, went back to the back room.  I had offered her $50 for sex.  She said that we could discuss that later.

Defense Counsel:  Objection, Your Honor.  Hearsay.

The Court:  Overruled.

Defense Counsel:  Your Honor, may I have a running objection to the hearsay that he=s going into, Ashe said@ so I don=t have to keep standing up?

The Court:  You may.

***

Appellant also contends the trial court admitted hearsay during Agent Chadwick=s testimony:

Q:  And what did Melissa B did you talk to Melissa at all?

A:  Yes. When Melissa came over, he B Jeff and Melissa came over to us.  He instructed Melissa to tell us all the rules about the club and what B you know, he said tell us all the rules about the club and if we had any questions, we could, you know, talk to Melissa.  She knows it all.  So, we began to communicate with Melissa and she asked us was this our first time and this type of stuff.

Defense Counsel:  Your Honor, I object to what Melissa said as being hearsay; and I would like to continue the objection.

The Court:  All right.  Overruled.

Although appellant cites the above testimony, his analysis addresses only error with regard to the officers= statements about what Melissa and Judy purportedly said to them, not what appellant himself allegedly told the officers. If appellant were claiming his own statements to the officers constitute inadmissible hearsay, his claim would lack merit.  Under Texas Rule of Evidence 801(e)(2)(A), a statement is not hearsay if the statement is offered against a party and is the party=s own statement.  See Tex. R. Evid. 801(e)(2)(A).  In this case, Agent Barberena was testifying to appellant=s statement when Agent Barberena inquired into the cost for sex and thus the statement is not hearsay.  See Cardenas v. State, 115 S.W.3d 54, 63 (Tex. App.CSan Antonio 2003, no pet.).  

The remaining statements involved communication between the agents and Melissa and Judy.  In Morgan v. State, this court held that statements made in a similar context were not hearsay because the statements themselves possessed legal significance in demonstrating the promotion of prostitution was taking place on a particular premises.  Morgan v. State, 596 S.W.2d 220, 221B22 (Tex. App.CHouston [14th Dist.] 1980, no writ) (making statement in context of temporary injunction to abate public nuisance of club used for promotion or aggravated promotion of prostitution).  In Morgan, two officers and a civilian testified they were repeatedly solicited to engage in sexual activities inside the premises for an arranged fee.  Id. at 221.  The court found the statements were admitted as Aoperative facts@ and were not used to prove the fact that the acts would be performed.  Id. at 221B22.  In doing so, the court likened this situation to one of contract formation.  Id. at 222.

In this case, the statements by Melissa and Judy to Agents Barberena and Chadwick had legal significance in demonstrating the promotion of prostitution at a club in which appellant was a manager.  The statements were not used to prove the fact that Judy was indeed available and that the acts would be performed, for example. Thus, as in Morgan, the statements are not hearsay.  Therefore, the trial court did not abuse its discretion by overruling appellant=s hearsay objection.  Accordingly, we overrule appellant=s first issue.

C.  Did the trial court err in denying appellant=s motion for instructed verdict?

In his third issue, appellant contends the trial court erred when it denied his motion for instructed verdict.  Specifically, appellant argues that without the alleged hearsay evidence, the State offered no proof appellant committed the charged offense.  However, even if this court determined the evidence constituted hearsay, the Court of Criminal Appeals has recently stated that an appellate court must consider all evidence actually admitted at trial in a sufficiency review, even improperly admitted hearsay.  Moff v. State, 131 S.W.3d 485, 489B90 (Tex. Crim. App. 2004). 

The standard of review applicable to a motion for instructed verdict is the same as that used in reviewing the legal sufficiency of the evidence.  Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).  The relevant question under this standard is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Id.

A person commits the offense of promotion of prostitution if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he or she knowingly solicits another to engage in sexual conduct with another person for compensation.  See Tex. Pen. Code Ann. ' 43.03(a)(2) (Vernon 2003).  In this case, Agent Barberena testified that he asked appellant how much appellant would charge for sex with one of the women at the establishment.  According to the testimony, appellant responded it would be $40 for a lap dance and Athat was up to the girls.@  Agent Barberena testified he understood the latter half of the statement to mean it was up to the women to determine how much to charge for sex.  Appellant then called over Judy and told her to take care of the agents.  After viewing the evidence in the light most favorable to the verdict, we find a rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt.  Thus, the trial court did not err by denying appellant=s motion for instructed verdict.  Accordingly, we overrule appellant=s third issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 22, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

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

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^[1]  Q:  Well, why in your report did you say you told Melissa -- go to the  second page -- you told Melissa that you wanted to have sex --

   A:  Objection. Improper impeachment, Your Honor.

   The Court:  Sustained.  Rephrase it.

   Q:  Why did you tell Melissa that you wanted to have sex?  In your report that=s the first person you told you wanted to have sex with, Melissa?

   A:  Objection. Improper impeachment, Your Honor.

   The Court:  Rephrase.