Austin v. State

• Decision Date: 16 May 1990
• Docket Number: No. 3-89-176-CR,3-89-176-CR
• Citation: 794 S.W.2d 408
• Parties: Kimberli AUSTIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 408

794 S.W.2d 408

Kimberli AUSTIN, Appellant, v. The STATE of Texas, Appellee.

No. 3-89-176-CR.

Court of Appeals of Texas,

Austin.

May 16, 1990.

Rehearing Overruled June 6, 1990.

Laird Palmer, Austin, for appellant.

Ken Oden, County Atty., and Alia Moses, Asst. County Atty., Austin, for appellee.

Before POWERS and JONES, JJ., and JOHN F. ONION, Jr., Assigned Justice ^*.

JOHN F. ONION, Jr., Assigned Justice.

This is an appeal from a conviction for prostitution. Tex.Pen.Code Ann. § 43.02(a)(1) (1989). At the conclusion of the bench trial, the trial court assessed appellant's punishment at sixty (60) days confinement in the county jail, and at a fine of $200.00. The imposition of the sentence was suspended, and the appellant was placed on probation for 180 days subject to certain conditions of probation.

In her first point of error, appellant contends that the "trial court erred in admitting into evidence Officer Hutto's personal opinion, as to the meaning of the term 'Swedish Deep Muscle Rub.' "

John Hutto testified that, at the time of the trial, he had been employed as an Austin City police officer for approximately four years, and that on the date in question he and other officers were involved in an investigation of massage parlors and modeling studios. He related that at the Satin Spa the appellant took him to a room where the prices were listed on a sign for "Swedish Deep Muscle Rub." He observed the sign, and testified he had experience with that kind of terminology. When asked if the term had any "meaning" to him he answered: "Based on my training those words 'Swedish Deep Muscle Rub' are often key words for prostitution." After objections were overruled, Hutto was asked what in his opinion was meant by the terminology, and he replied: " 'Swedish Deep Muscle Rub' in this type of massage parlor is often a catch phrase for prostitution."

First, appellant contends the testimony was inadmissible because it was hearsay. The only hearsay objection at trial to which appellant calls our attention followed Hutto's simple affirmative answer to the question of whether he had "had any prior experience with that kind of terminology." The objection was: "That calls for hearsay to the facts of this case." The trial court properly overruled the objection, as hearsay was not involved. See Tex.R.Cr.Evid. Ann. 801(d) (Pamp.1990).

Next, appellant argues the testimony was admitted in violation of Rule 701 of the Texas Rules of Criminal Evidence. Appellant contends the State made no effort to qualify Officer Hutto as an expert witness In Goode, Wellborn and Sharlot, 33 Texas Practice-Guide to the Texas Rules of Evidence: Civil and Criminal § 701.2, p. 491-94, it is stated:

therefore, the standard for his testimony is that of Rule 701 (opinion testimony by lay witnesses). Appellant did object on the ground of lack of personal knowledge, although she did not invoke Rule 701 by name. The court overruled the objection noting that it was "opinion testimony."

Given the conceptual difficulties inherent in the common-law rule against lay opinion and the mischievous results it produced, the drafters by Rule 701 opted for a more pragmatic approach. Adopted verbatim from the original Federal Rule 701, it provides that a lay witness may testify in the form of opinions or inferences when the opinions or inferences (1) are rationally based on the witness's perception and (2) help the factfinder to understand clearly the testimony or determine a fact in issue. The first requirement incorporates the personal knowledge requirement of Rule 602 ¹....

* * * * * *

Rule 701 seeks to insure that the trier of fact is presented with testimony in the form most likely to help the factfinder resolve the contested issues....

By employing the functional "helpfulness" standard, Rule 701 leaves much to the discretion of the trial judge. Whether proferred opinion testimony is rationally based and helpful will be a function of the particular facts of the case and the trial judge will almost invariably be in the best position to make this determination. Therefore, the trial court's decision to admit or exclude lay opinion testimony should be overturned only when the trial judge has abused his discretion.

Under pre-rules practice, the general rule against receiving opinion testimony could be overcome by a lay witness who was presenting a "short-hand rendition" of the facts in opinion form that would assist the fact finder. There is no significant departure from this "short-hand rendition" practice. See H. Wendorf & D. Schlueter, Texas Rules of Evidence Manual, at 266-68 (Mechie 2d ed. 1988) [hereinafter "Wendorf & Schlueter"]. Rule 701 retains much of the pre-rules precedent, but has broadened the lay opinion testimony procedure slightly. Gross v. State, 730 S.W.2d 104, 106 n. 2 (Tex.App.1987, no pet.); Wendorf and Schlueter, at 268.

Anguiano v. State, 774 S.W.2d 344 (Tex.App.1989, no pet.), involved a prosecution under § 43.02(a)(1) of the Penal Code as does the instant case. In Anguiano, the officer was asked whether his dialogue with the prostitution defendant meant she was offering or agreeing to engage in sexual conduct. He answered "agreeing." His opinion or response was held admissible under Rule 701.

In Williams v. State, 760 S.W.2d 292 (Tex.App.1988, pet. ref'd), it was held that the officer's testimony regarding the common use of "vice grips" to assist in stealing cars was admissible under Rule 701 as opinion evidence based on the officer's personal observations and experience as a police officer.

We conclude in the instant case that Officer Hutto's testimony was admissible as opinion testimony under Rule 701. The State argues that the evidence was admissible under Rule 702 (expert testimony) of the Texas Rules of Criminal Evidence. It calls attention to Officer Hutto's training, experience, and several years of service as a police officer. Certainly a witness may qualify to give testimony under both Rules 701 and 702. Wendorf and Schlueter, at 271-272; see generally Sutton, Article VII: Opinions and Expert Testimony, 20 Hous.L.Rev. 445, 453 (1983).

In Wood v. State, 573 S.W.2d 207 (Tex.Cr.App.1978), involving a prosecution for aggravated promotion of prostitution, a police officer was held qualified to testify, based on his experience, that 2,000 index In Barnes v. State, 634 S.W.2d 25 (Tex.App.1982, no pet.), there was no abuse of discretion in permitting an undercover agent, based on his experience, etc., to testify that a person caught with ten grams of methamphetamine was usually a dealer, and to express his opinion as to the probable purpose of the substance contained in four packets taken from the defendant. See also Logan v. State, 448 S.W.2d 462 (Tex.Cr.App.1969); Selvidge v. State, 171 Tex.Crim. 140, 345 S.W.2d 523 (1961).

cards seized were "trick files" that listed clients, and that were generally used in prostitution enterprises.

The qualification of an expert witness is generally left to the sound discretion of the trial court. There is no hard and fast rule as to the extent of knowledge required to qualify a witness as an expert in a given field. Brotherton v. State, 666 S.W.2d 126 (Tex.App.1983, pet. ref'd). The trial court's decision to admit or exclude the proposed opinion testimony will not be disturbed on appeal unless a clear abuse of discretion is shown. Steve v. State, 614 S.W.2d 137 (Tex.Cr.App.1981).

Although the testimony could have been better developed, we conclude that Officer Hutto's testimony was also admissible under Rule 702. Appellant's first point of error is overruled.

In her second point of error, appellant contends the evidence was insufficient to support her conviction. The elements of the offense under § 43.03(a)(1) are:

(1) A person

(2) knowingly

(3) offers or agrees to engage in sexual conduct

(4) in return for a fee payable to the actor.

Mattias v. State, 731 S.W.2d 936 (Tex.Cr.App.1987); Raven v. State, 533 S.W.2d 773 (Tex.Cr.App.1976).

The complaint and information in the instant case alleged in pertinent part that the appellant on or about April 30, 1988, "did then and there knowingly agree to engage in sexual conduct for a fee, to wit: the said Kimberli Austin agreed to have sexual intercourse with J. Hutto for a fee."

Thus, the State had the burden to prove beyond a reasonable doubt that (1) Kimberli Austin (2) did knowingly (3) agree to engage in sexual conduct, to wit: sexual intercourse with J. Hutto (4) for a fee.

In the instant bench trial there was only one witness--Officer John Hutto of the Austin Police Department. He related that on April 30, 1988, he and other officers were in the process of investigating massage parlors and modeling studios; that on that date he went to the Satin Spa in Travis County. Hutto entered a living room area where there was a male and two females. The male told Hutto to select one of the females, and Hutto selected the appellant Austin. She led him down a hall to a room where there was a sign or signs as to the prices for "Basic Body Rub" and "Swedish Deep Muscle Rub." The appellant informed Hutto the "Basic Rub" was a "fingertip" massage, and the "Swedish Deep Muscle Rub" was a "more thorough and stimulating rub." The highest cost of the former was $60.00 for 60 minutes and the highest cost of the latter was $130.00 for 60 minutes. Hutto, a veteran of several years with the Austin Police Department, had experience with the terminology and understood that "Swedish Deep Muscle Rub" was "a catch phrase" or "key words" for prostitution. Hutto gave appellant $140.00 for the highest price "Swedish" rub. Appellant left the room and returned with his change of $10.00. They both then disrobed. The nude appellant laid face down on the bed and asked Hutto to massage her back, which he did for ten minutes. Then the appellant gave Hutto a massage on his back, legs, and buttocks for ten minutes. Appellant then asked Hutto if he would "like...