Wen Ping Tong v. State

Opinion issued July 3, 2008  

  In The

Court of Appeals  

For The  

First District of Texas  

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NO. 01-07-00799-CR

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WEN PING TONG, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1116402

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  MEMORANDUM OPINION

          Appellant, Wen Ping Tong, appeals from a judgment convicting him for the first-degree felony offense of engaging in organized crime. See Tex. Penal Code Ann. § 71.02(a)(10) (Vernon Supp. 2007). Appellant pleaded not guilty to the jury. The jury found appellant guilty, and the court assessed punishment at 14 years in prison. In two issues, appellant contends that the trial court erred by admitting two statements that constituted inadmissible hearsay and violated his right to confrontation. We conclude the evidence does not constitute inadmissible hearsay and that appellant waived his confrontation clause challenge by failing to object on that ground. We therefore affirm the judgment of the trial court.Factual BackgroundIn August 2005, Officer Tomeo of the Houston Police Department stopped appellant for speeding. Appellant pulled into the driveway of a nearby house at 8506 Beechnut. The two female passengers got out of appellant’s car and entered the house, contrary to Officer Tomeo’s instructions to remain in the car. Officer Tomeo decided to follow the women by knocking on the door of the house.

          When someone responded to his knock by opening the front door, Officer Tomeo walked into the house. As he stood near the entrance on the inside of the house, he saw video cameras, credit card stickers, and credit card processing terminals. Officer Tomeo also saw a male and a female “engaged in sex.” Later that day, Officer Tomeo asked the male that he saw having sex with the female what he was doing at the location. Officer Tomeo said that the male answered that “he was there for the purpose of having sex with the female” and “he admitted to having agreed on a price.”

          Approximately five months later, Officer Surginer of the Houston Police Department conducted an undercover prostitution sting at the Hong Kong Spa, located at 5616 Schumacher. Appellant is the sole president and director of the Hong Kong Spa, which was operated under the corporate name Zhungrun International. Officer Surginer testified that when he entered the building, he was asked if he wished to pay the $120 “door fee” for entrance. He also testified that when locations charge a large door fee, as they did in this instance, it typically means that “you’re going to get a sex act in the back and you’re not going to have to pay any more for it.” Officer Surginer paid the door fee and was led by a female dressed in lingerie to a room with a bed instead of a massage table. Officer Surginer testified that the female agreed to perform a sex act with him. Officer Surginer then notified his fellow officers to enter the premises, and while they were searching they discovered a male and a female, both unclothed, in bed together. Officer Surginer testified that it did not look like the female was giving the male a massage, and that after they were discovered, the male began removing a condom that he was wearing. When Officer Surginer later asked the male what he was doing at the location, he “said he was there to have sex,” and that “he had paid $120 and he had been there one other time before and he was to have sex.”  

          Five months later, Officer Leal of the Houston Police Department conducted an undercover prostitution sting at the same location Officer Tomeo had visited. Officer Leal and his partner were admitted into the building, where they told appellant that they “want[ed] a couple of girls.” A female in a short skirt and “kind of transparent” shirt led Officer Leal upstairs to a room with a small sofa and a queen-size bed. Officer Leal testified that the female agreed to perform a sex act with him for $120, and the female was later charged with a class C violation.

          Approximately 10 weeks later, Officer Dexter of the Houston Police Department, while participating in an undercover prostitution sting, entered the same Hong Kong Spa that Officer Surginer had previously visited. Officer Dexter agreed to pay $140 for a massage, and was then led by a “scantily clad” female “dressed in lingerie” to a room containing a wooden massage table and a full-size bed. The female later told him “I do you” and “pointed to her genital area.” She also agreed to perform a sex act on Officer Surginer.Admission of Hearsay

          In two issues, appellant challenges the admission of hearsay statements testified to by Officer Tomeo and Officer Surginer by claiming that the statements were inadmissible hearsay. At trial, the State asked Officer Tomeo and Officer Surginer to recount their conversations with the men whom they had seen in what appeared to be sexual encounters. Appellant objected based on hearsay when Officer Tomeo was asked to recount what the declarant told him, but was overruled. Appellant also objected based on hearsay when Officer Surginer was asked to recount statements, but the trial court overruled appellant’s objections.  

A. Standard of Review for Evidentiary Rulings

          We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). More specifically, the standard of review of a trial court’s decision to admit a hearsay statement under Rule 803(24) of the Texas Rules of Evidence is whether the trial court abused its discretion. Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994); see also Tex. R. Evid. 803(24). We will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). Therefore, we address each of appellant’s evidentiary challenges by determining whether the trial court’s rulings were outside the zone of reasonable disagreement. See id.B. Applicable Law

          “Hearsay” is a 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). Hearsay is not admissible except as provided by statute or by rules prescribed pursuant to statutory authority. Tex. R. Evid. 802. A hearsay statement may be properly admitted if the statement

was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability . . . or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Tex. R. Evid. 803(24).

                    The first inquiry under the pertinent portion of Rule 803(24) is whether the statement tended to expose the declarant to criminal liability. Davis v. State, 872 S.W.2d 743, 747 (Tex. Crim. App. 1994). The second inquiry under Rule 803(24) is whether or not corroborating circumstances clearly indicated the trustworthiness of the statement. See Tex. R. Evid. 803(24). There is no definitive test by which to gauge the existence of corroborating circumstances for the purposes of Rule 803(24). Davis, 872 S.W.2d at 749. The burden lies with the party seeking to admit the statement to provide evidence of corroborating circumstances that clearly indicate trustworthiness. Id. If a hearsay statement properly satisfies both inquiries under Rule 803(24), it is admissible as a statement against interest.

          In examining the second prong for circumstances that show trustworthiness, a trial court should consider a number of factors, including: (1) whether the guilt of the declarant is inconsistent with the guilt of the defendant, (2) whether the declarant was so situated that he or she might have committed the crime, (3) the timing of the declaration, (4) the spontaneity of the declaration, (5) the relationship between the declarant and the party to whom the statement was made, and (6) the existence of independent corroborating facts. Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999); see also Davis, 872 S.W.2d at 749. “The first two factors . . . logically apply only when the defendant is the proponent of the statement against interest that tends to exculpate the defendant.” Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004).

C. Analysis of Officer Tomeo’s Testimony          

          In his first issue, appellant challenges a portion of the testimony of Officer Tomeo, as follows: “Officer Tomeo testified that the male who was having sex with the woman inside the location stated that ‘he told me that he was there for the purpose of having sex with the female and that he told me that he had been introduced to that female by An Na, who he met at Sharpstown’ and that ‘he admitted to having agreed on a price.”’ The declarant’s statements satisfy the first prong of Rule 803(24) because they exposed him to criminal liability. See Tex. Penal Code Ann. § 43.02(a)(1) (Vernon 2003) (person commits offense if he knowingly agrees to engage in sexual conduct for fee).

          Under the second prong of Rule 803(24), we find the corroborating circumstances sufficient to prove the trustworthiness of the declarant’s statements. The first two factors are inapplicable because the defendant is not the proponent of the statements against interest. See Woods, 152 S.W.3d at 113. Under the third factor, the timing of the declaration closely followed Officer Tomeo’s discovery of declarant having sex and before the declarant came under any official investigation for his presence at the location. It therefore would support the reliability of the statement.

          The fourth factor also points to the admission of the statement. Although the statement was in response to a question by the officer, the response was spontaneous, in that the declarant quickly admitted what his own purpose was at the location, without attempting to shift blame to another or to minimize his involvement. The record does not show any relationship between the declarant and the defendant, and thus the fifth factor also points toward the admission of the statement because the statement appears to be independent of any outside influence.

          In applying the sixth factor, we note the presence of significant number of independent corroborating facts. Officer Tomeo testified that he saw the declarant and a female having sex, and that he saw a condom wrapper on the bed. He stated that the residence looked more like a business than a residence, and that appellant said the “business” was his. Officer Tomeo also testified to seeing Visa and Mastercard stickers and that credit card terminals were present, in addition to finding thousands of dollars in cash within the residence.

          Because the declarant’s statements subject him to criminal liability and since the record provides significant independent corroboration that clearly indicates the trustworthiness of the declarant’s statements, we conclude that the trial court did not abuse its discretion by admitting Officer Tomeo’s testimony regarding those statements. See Tex. R. Evid. 803(24); see also Davis, 872 S.W.2d at 747–49. We conclude that the trial court’s admission of Officer Tomeo’s testimony was within the zone of reasonable disagreement. See Burden, 55 S.W.3d at 615. We therefore overrule the first issue.

D. Analysis of Officer Surginer’s Testimony

          In his second issue, appellant challenges the admission of hearsay testimony by Officer Surginer. Officer Surginer testified that a male customer told him “he said that he was there to have sex,” and “he told me he had paid $120.00 and he had been there one other time before and he was to have sex.” The declarant’s statements satisfy the first prong of Rule 803(24) because they exposed him to criminal liability. See Tex. Penal Code Ann. § 43.02(a)(1) (person commits offense if he knowingly agrees to engage in sexual conduct for fee).

          Under the second prong of Rule 803(24), we find the corroborating circumstances sufficient to prove the trustworthiness of the declarant’s statements. The first two factors are inapplicable because the defendant is not the proponent of the statements against interest. See Woods, 152 S.W.3d at 113. Under the third factor, the timing of the declaration closely followed Officer Surginer’s discovery of declarant and a female in a bed, unclothed, with the declarant removing a condom, and before the declarant came under any official investigation for his presence at the location. It therefore would support the reliability of the statement.

          The fourth factor also points to the admission of the statement. Although the statement was in response to a question by the officer, the response was spontaneous, in that the declarant quickly admitted what his own purpose was at the location, without attempting to shift blame to another or to minimize his involvement. The record does not show any relationship between the declarant and the defendant, and thus the fifth factor also points toward the admission of the statement because the statement appears to be independent of any outside influence.

          In applying the sixth factor, we note the presence of significant number of independent corroborating facts. Officer Surginer testified that at the location in question, he paid the $120 “door fee,” which typically entitles a customer to “get a sex act in the back.” Declarant said that he also was charged $120. Officer Surginer described the room to which he was taken to as unlike a legitimate spa, having an actual bed instead of a massage table. A female at the location agreed to perform a sex act on Officer Surginer. When Officer Surginer discovered the declarant, he testified that he found the declarant and a female naked in bed together, and that the declarant then began removing a condom that he had been wearing. Officer Surginer further testified the location “was a house of prostitution. It was a brothel.”

          Because the declarant’s statements subject him to criminal liability and since the record provides significant independent corroboration that clearly indicates the trustworthiness of the declarant’s statements, we conclude that the trial court did not abuse its discretion by admitting Officer Surginer’s testimony regarding those statements. See Tex. R. Evid. 803(24); see also Davis, 872 S.W.2d at 747–49. We conclude that the trial court’s admission of Surginer’s testimony was within the zone of reasonable disagreement. See Burden, 55 S.W.3d at 615. We therefore overrule that portion of appellant’s second issue, challenging the trial court’s admission of Officer Surginer’s testimony over appellant’s hearsay objection.

Right to Confrontation

          Within his second issue, appellant contends that the admission of the contested hearsay statements violated his constitutional right to confrontation. See U.S. Const. Amend. VI; Tex. Const. art. I, §10. At trial, appellant made only general hearsay objections and did not object based on his right to confrontation. An objection at trial based only on hearsay fails to preserve error on Confrontation Clause grounds. Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004). We hold that appellant failed to preserve error on Confrontation Clause grounds at trial because he failed to assert that objection at trial. See id.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Elsa Alcala

                                                                        Justice

Panel consists of Justices Nuchia, Alcala, and Hanks.

Do not publish. See Tex. R. App. P. 47.2.