McCall v. State

OPINION

SEARS, Justice.

This is an appeal from a felony conviction for aggravated promotion of prostitution. A jury found Appellant guilty of the offense and assessed punishment, enhanced by a prior felony conviction, at twenty years confinement in the Texas Department of Corrections and a fine of $10,-000. We reverse and enter a judgment of acquittal.

Appellant raises seven points of error on appeal. In points one and two he challenges the sufficiency of the evidence to support the conviction as alleged in the indictment. Since appellant asserts insufficiency of the evidence, a careful review of the facts is appropriate.

In November 1987, Dallas Police Officers Steven Claggett and John Nichols began investigating Imaginations, an escort agency, after receiving a complaint about an ad published by the agency in This Week in Texas, a gay oriented magazine. The ad included both Dallas and Houston phone numbers. Officer Claggett called the Dallas number and scheduled an interview with a male who identified himself as “Mark”. Claggett testified that during the interview he answered personal questions concerning his physical statistics and sexual preferences. He also testified that he declined Mark’s request to undress and masturbate until he obtained an erection.

Officer Nichols testified he interviewed with “Mark” on December 1, 1987, and answered similar questions and refused similar requests. He further testified that on December 10 or 11, 1987, he phoned the Houston number and spoke to appellant’s codefendant, Mike Smallwood, and requested “escort” work in Houston. Nichols testified that Smallwood told him he could work in Houston and could see a client of the agency in Dallas. Smallwood phoned Nichols the following day and arranged for him to meet the client at a Dallas hotel. On December 11, 1987, Nichols met the client in his hotel room and determined the client desired to engage in sexual contact. Nichols formulated an excuse and left.

On December 16, 1987, Claggett called the Houston number and arranged an interview with Smallwood using his true name. Appellant and Smallwood interviewed Clag-gett and told him he could begin working for Imaginations immediately. On December 18, 1987, Officers Claggett and Nichols obtained and executed a search warrant on Imagination’s Houston office. Appellant and Smallwood were arrested the same day.

Appellant asserts in points of error one and two that the evidence fails to establish Officers Claggett and Nichols were prostitutes as the indictment alleged. The indictment reads in part that Appellant did “then and there unlawfully and knowingly own, invest in, finance, control, supervise and manage a prostitution enterprise using more than one prostitute, including J.B. NICHOLS and S.B. CLAGGETT.”

The state correctly argues it was unnecessary to allege the names of the prostitutes in the indictment. Brownwell v. State, 644 S.W.2d 862, 865 (Tex.App.—Tyler 1982, no writ). However, where an unnecessary matter is descriptive of that which is legally essential to the charged crime, it must be proven as alleged, even though needlessly stated. Polk v. State, 749 S.W.2d 813, 816 (Tex.Crim.App.1988). Before reviewing the sufficiency of the evidence, we must determine whether listing the officers as prostitutes in the indictment is descriptive of a legally essential element or if it is merely surplusage.

The elements of the offense with which appellant is charged are (1) a person; (2) knowingly; (3) owns, invests, finances, controls, supervises, or manages; (4) a prostitution enterprise; (5) that uses two or more prostitutes. Tex.Penal Code Ann. § 43.04(a) (Vernon 1974). The state pled more than was necessary by including the names of officers Nichols and Claggett in the indictment. Such unnecessary words or allegations in an indictment may be rejected as surplusage if they are not descriptive of that which is legally essential to charge a crime. Windham v. State, 638 S.W.2d 486, 487 (Tex.Crim.App.1982); Matthias v. State, 695 S.W.2d 736, 738 (Tex.App.—Houston [14th Dist.] 1985, pet. ref d.) Since establishing the use of two or more prostitutes is a necessary element of the offense, we find the inclusion of the officers in the indictment legally essential to the charges of the crime. The proof must support the allegations or the evidence will be insufficient to support a conviction. Franklin v. State, 659 S.W.2d 831, 833 (Tex.Crim.App.1983).

The proper standard of review for a sufficiency of the evidence 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 offense beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 238 (Tex.Crim.App.1989). The state asserts for purposes of this prosecution Officers Nichols and Clag-gett were “prostitutes.” We disagree.

The term “prostitute” is not expressly defined by statute; however, the term is capable of only one meaning — a person who engages in prostitution. Smithwick v. State, 762 S.W.2d 232, 234 (Tex.App. —Austin 1988, pet. ref d.). Tex.Penal Code Ann. § 43.02 (Vernon 1988), provides “a person commits an offense if he knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee.” (emphasis added). The state contends Nichols became a prostitute for purposes of prosecution when the agency dispatched him to meet a client who reportedly was into “body worship” and who had pre-authorized a $170.00 charge for the meeting.

Officer Nichols testified he met the client in his hotel room, determined the client desired to have sex with him and left. Nichols did not describe any offer to engage or agreement to engage in sexual contact with the client for a fee. Nor did he describe any conversation in which appellant or Smallwood instructed or asked him to engage in sexual contact with the client. Instead, he testified Smallwood informed him the client was into “body worship,” and because his definition of “body worship” included sexual contact, he was able to determine the client desired to have sex with him. The state’s own witness had previously testified “body worship” frequently involved no sexual or physical contact. The state’s only evidence that Nichols was acting as a prostitute was his assignment as an “escort” and the authorization of a charge on the client’s credit card. These actions do not satisfy the statutory definition of prostitution as defined in § 43.02.

The state also contends Officer Claggett acted as a prostitute for purposes of this prosecution. The record is devoid of any evidence to support this contention. Officer Claggett interviewed in both Dallas and Houston to go to work for the agency. Claggett testified that following the Houston interview appellant and Smallwood stated he could begin working for the agency immediately. The state adduced no evidence that either appellant or Smallwood requested Officer Claggett to engage in sexual activity for a fee. Moreover, neither dispatched Claggett to act as an escort for the agency. The state’s only evidence waá several messages left at Claggett’s hotel following the Houston interview. The state did not establish either the content or purpose of the messages; hence, any interpretation as to the significance of such messages would be pure conjecture.

The state put on two witnesses who allegedly worked for the agency. One witness admitted he was a prostitute, the other denied being a prostitute. The state failed to prove an element of the offense; ie. “that uses two or more prostitutes.” The evidence is insufficient to prove either officer offered to engage, agreed to engage, or actually engaged in sexual activity. We sustain appellant’s first and second points of error; therefore, we need not address points of error three through seven.

We reverse the judgment of the trial court and enter a judgment of acquittal.