Coutta v. State

• Decision Date: 17 October 2012
• Docket Number: No. 08–10–00039–CR.,08–10–00039–CR.
• Parties: Jeannie COUTTA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

385 S.W.3d 641

Jeannie COUTTA, Appellant,

v.The STATE of Texas, Appellee.

No. 08–10–00039–CR.

Court of Appeals of Texas,

El Paso.

Oct. 17, 2012.

David L. Botsford, Austin, TX, for Appellant.

Jaime E. Esparza, District Attorney, El Paso County Courthouse, El Paso, TX, for State.

Before McCLURE, C.J., RIVERA, J., and ANTCLIFF, J.

OPINION

GUADALUPE RIVERA, Justice.

A jury found Appellant guilty of one count of aggravated promotion of prostitution (Count I) and three counts of engaging in organized criminal activity (Counts II–IV). The same jury assessed punishment at confinement of ten years for Count I, seventeen years for Count II, two years each for Counts I II and IV, and a fine of $10,000 for each count. Appellant appeals her convictions.¹ We affirm.

BACKGROUND

Appellant and her business partner, Phyllis Woodall, owned and operated the Naked Harem, an adult-entertainment establishment where patrons paid a cover charge for admission to be entertained by totally-nude women. For a $1 tip paid to a dancer per song, a patron could sit by one of the stages and watch the dancer on stage perform in the nude. For an additional $10 to $30, a patron could purchase a “table dance” or “lap dance,” a term used interchangeably at trial to describe a dance in which the dancer was closer and more intimate with the patron. A patron could also purchase a private two-song dance in one of four private rooms in the club for $130 cash or $140 if paid by credit card. A patron could purchase additional songs if he wanted more time in the private room.

The dancers were independent contractors who had to pay the club a “floor fee” for the privilege of dancing in the Naked Harem. They were not paid a salary. The dancers kept all of the money that patrons paid for stage and table dances, but they split with the Naked Harem the money earned from private dances. For the two-song minimum private dances, the Naked Harem kept $50 if the patron paid in cash, and kept $60 if the patron paid with a credit card.

The Naked Harem made most of its money from the private dances because the dancers kept all of the money from their stage and table dances and, thus, private dances were the “number one” priority of the club. Appellant and Woodall encouraged dancers to perform more private dances rather than limiting their performances to stage and table dances, and dancers who limited their dances were viewed as being selfish and not making money for the club.

Appellant and Woodall were “hands-on” owners and operators of the Naked Harem, were in control of the club and the entertainment provided therein, performed managerial duties when needed, and made all of the decisions regarding who performed duties at the club, including decisions about the hiring and firing of dancers. They made all of the rules and regulations regarding activities at the club and if the managers had any questions, they were required to obtain “permission” from Appellant and Woodall. Appellant was physically present at the Naked Harem about 85 percent of the time and, upon arriving at the club, would see what needed to be done, perform general upkeep, and obtain updates from the managers about the daily operations which included, among other things, information regarding which dancers were making and producing the most money, “who was doing what,” and who was causing trouble. The managers also discussed with Appellant and Woodall the daily ledgers documenting the club's revenues and sources thereof.

Appellant and Woodall had cameras installed throughout the public areas of the club from which they could and did monitor club activities, except those occurring within private rooms. Appellant and Woodall monitored the activities from within the club and from home. Appellant also had recording equipment installed on the club's telephones so that she could record and monitor the phone conversations of employees and dancers to determine whether they were speaking with police.

In addition to Appellant and Woodall, other members of the combination identified in Counts II through IV of Appellant's indictment included Richard Hamm, Jacob Crum, Sandra “Tammy” Zepeda, and Maria Brooks, who were employed as managers at the Naked Harem. These managers were paid a percentage of the club's revenues and had a monetary stake therein.

While Appellant and Woodall handed down an “official” policy that no sex or sexual contact was permitted within the club or the private rooms, the rules enforced by Appellant, Woodall, and the managers were very different. Hamm, who had been employed at the Naked Harem for approximately nine years, testified that signs stating that sex was not permitted were not posted until “after the warrant was issued,” and Crum, who had worked at the club for seven years, similarly testified that the signs were posted after the first raids leading to Appellant's prosecution.

Hamm testified that during the table or lap dances performed on the main floor of the Naked Harem, dancers would “grind” on the patron's lap. Crum likewise testified that in performing such dances, the dancer would “grind” totally nude upon the patron, rubbing her genitals against the patron for the patron's sexual excitement. Dancers and patrons testified that the dancers would rub their genitals and breasts on the patron's private parts and allow patrons to touch their breasts, buttocks, and genitalia for the patron's sexual satisfaction.² The sexual contact was visible to the club managers and to Appellant and Woodall, who were also able to view the activities within the club through the camera monitors. A video showing Appellant observing a sex show was introduced into evidence.

Hamm and Crum stated that Appellant and Woodall had established the “whole process of prostitution” at the Naked Harem and that the owners and managers were aware that prostitution was occurring in the private rooms of the club. Hamm and Crum testified that they specifically discussed with Appellant and Woodall the prostitution and sex occurring within the private rooms. Crum testified that in one instance, in Appellant's presence, he paid to have sex with two dancers in one of the private rooms and Appellant commented, “[T]hat was great.” Crum acknowledged that patrons were paying to have sex in the private rooms and testified that the managers were aware of those activities.

Francisco Javier Cisneros had installed the phone and camera monitoring systems in the Naked Harem. Cisneros testified that he had informed Appellant and Woodall that the dancers and patrons were having sex in the private rooms but Appellant and Woodall would deny it. Cisneros, without informing Appellant and Woodall, placed cameras within the private rooms and recorded the activity occurring therein. Cisneros testified that he never presented the recordings to Appellant and Woodall because he figured the owners didn't want the activity to stop. Cisneros' recordings of activity occurring within the private rooms were introduced into evidence at trial.³ The recordings showed numerous sex acts.

Patron Donald Glines testified that he paid the Naked Harem for sex. Glines said that when he paid for table or lap dances, the dancers would rub their breasts and genitals on him for his sexual gratification and some would ask if he wanted to go to the private room and have sex. On many occasions, Glines paid the fee to go to the private rooms and during at least one-half to two-thirds of those occasions, Glines engaged in sexual intercourse with the dancer and would sometimes tip the dancer. On those occasions when he and the dancer did not have sexual intercourse, the dancer would rub her genitals and breasts against him and he would touch the dancer's breasts and genitals. David Ruiz testified that he paid for oral sex in the private rooms at the Naked Harem once or twice per year between 2001 and 2003, and had sex whether or not he paid the dancer a tip. Patron Jesus Garcia visited the Naked Harem about once every three months from 2001 to 2003, and testified that after paying for a table dance, some of the dancers would ask if he wanted to have sex in a private room. Garcia did pay for sex in the private rooms at the Naked Harem and testified that one of the club's managers, Maria Brooks, would inform him when there were new girls who wanted to go to the private rooms.⁴ The prior testimony of patron Jason Casper was introduced at trial. Casper testified that he paid both for oral sex and to watch live sex shows in a private room at the Naked Harem.

Sylvia Garcia was a dancer at the Naked Harem and testified that, on many occasions, she had sex with a patron in a private room after he paid his fee for the private dance. Mary Snyder testified that when she was a dancer at the club, she had sex in a private room with a patron after he had paid his private-dance fee.

Dancer Lucia Pinedo testified that she was employed as a dancer at the Naked Harem when she was 15 years old. In deposition testimony admitted at trial, Appellant admitted that she and Woodall had hired Pinedo to work at the club, and Hamm testified at trial that Appellant brought Pinedo to him and directed that he put Pinedo on stage. Hamm said Pinedo “looked pretty young” and questioned her about her age. Hamm testified that Pinedo's identification showed that she was of legal age but Pinedo testified that she showed her high-school identification card, which does not have her date of birth. Crum, who stated that Pinedo looked like a child and did not look 18 years old, testified that when he discussed his concerns about Pinedo's age with Appellant and Woodall, they told him not to worry. Pinedo danced topless and totally nude during her performances and table and lap dances. She had sex with patrons in the Naked Harem's private rooms and, during the lap and table dances, patrons would touch her breasts, buttocks, and “private parts.” When police first “raided” the club, Appellant,...