Etchieson v. State, 53167

• Decision Date: 01 November 1978
• Docket Number: No. 53167,53167
• Citation: Etchieson v. State, 574 S.W.2d 753 (Tex. Crim. App. 1978)
• Parties: Virgil John ETCHIESON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 753

574 S.W.2d 753

Virgil John ETCHIESON, Appellant, v. The STATE of Texas, Appellee.

No. 53167.

Court of Criminal Appeals of Texas, En Banc.

Nov. 1, 1978.

Rehearing Denied Nov. 29, 1978.

Emmett Colvin, Dallas, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Gerald A. Banks, Jon Sparling and Kelly W. Loving, Asst. Dist. Attys., Dallas, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING

DOUGLAS, Judge.

Virgil John Etchieson appeals from his conviction for the offense of aggravated promotion of prostitution, as denounced by V.T.C.A., Penal Code, Section 43.04. The jury assessed punishment at ten years' confinement and a $5,000.00 fine. The judgment was affirmed in a prior per curiam opinion 549 S.W.2d 409.

The record shows that appellant was engaged in running a "call-girl" type operation from his lakehouse on Lake Dallas. The instant offense is alleged to have occurred on December 18, 1974. He was arrested on December 20, 1974 at the time of the execution of a search warrant by officers at his lake home on that date.

One of the rooms in his home was used as an office. It contained, among other things, telephones, recording equipment, and automatic answering devices. Also found in the room was a "trick list" described by officers as a list of potential or actual customers for prostitutes. The list was also coded to reflect such information as wife answers the phone, nosey secretary, "gear", check good and don't take check. It also contained the names of almost fifty available prostitutes. A customer could obtain the services of one of the prostitutes through the use of an escort service. A customer would call the listed number of the operation and the automatic answering service would tell the caller to leave his name and telephone number and he would be called back. Prior to being called back, the customer's name would be checked against the "trick list" and if all was in order the call would be returned and a date made. A prostitute would then be sent to fulfill the commitment. Each return call reflected was shown to have been made by Pamela Lou Wood, also known as "Cyn."

The events leading to appellant's arrest and exposure of his operation were brought about by the cooperation of a prostitute named Frances Witherspoon and a police informer named Jimmy Hopgood with officers of the Dallas Police Department's vice squad.

The initial contact with appellant's operation was established on December 8, 1974, by Sergeant D. F. Fowler through Witherspoon, who was also known as "Sabrina." Witherspoon placed a call to Wood on appellant's unlisted telephone number, 231-9061, and told Wood that she had a trick that she was unable to service because of a recent abortion and requested that she take care of him. Wood assured Witherspoon that he would be taken care of because she had vouched for him. The name of Sam Williams was given to Wood, an alias used by Hopgood.

On December 10, 1974, a date was arranged for Hopgood using the name Williams through Wood at the Ramada Inn Convention Center in Dallas. Deborah Walker, known as Sandy, kept the date and accommodated Hopgood.

Shortly thereafter, Fowler had a series of conversations with Wood using Hopgood's alias. It was during these conversations that Fowler arranged a party involving the seven prostitutes who were arrested on December 18, 1974, at a hotel in Dallas. Fowler had told Wood that there was to be a MasterCharge seminar held at the hotel and it was his desire to give a Christmas party for the seven men attending. Wood agreed that seven girls would be furnished and that the girls would provide a lesbian-type show first and then each of the men would have sexual intercourse with one of the prostitutes.

Through the use of fellow police officers and a few cooperating civilians, Fowler was able to assemble six men at the designated hotel room. The women began arriving individually at nine o'clock p. m. Upon arrival they all undressed and began performing their show. Fowler, in order to make his case against the women involved, stopped them and had the women pair off with the men before continuing the show. Each woman was then paid the agreed price of $200 for her services. Fowler, who had a radio taped to his body, then transmitted a pre-arranged signal to officers waiting in a room across the hall. The officers entered and arrested all seven of the prostitutes. The names of all seven prostitutes were found in appellant's files at his office in his lake home.

On the basis of this information as well as other information Sergeant Roger Duncan, also of the vice squad, filed an affidavit which was used to obtain a search warrant from the Honorable Robert L. Sparks of Denton County to be executed on appellant's lake home. Appellant and Wood were both arrested at the time the warrant was executed.

Initially, appellant contends that the trial court erred in failing to require the State to disclose the identity of the informant. At the hearing on appellant's motion to disclose the informant's identity, Sergeant Fowler testified that prior to the arrest of the seven prostitutes at the hotel on December 18, 1974, he had discussed arrangements for the party with Pamela Wood by calling her at 231-9061 on three occasions and again a fourth time on the day of the party. He related that on December 18, 1974, he met with Sergeant Duncan near a pay telephone on Harry Hines Boulevard. Someone was with Duncan, but that person did not have anything to do with or play any part in making the arrangements for the seven prostitutes to come to the hotel to the alleged Christmas party on that evening. Fowler further testified that he had no idea that anyone would be with Duncan when they had arranged to meet that afternoon.

However, it did not matter whether or not Duncan had anyone with him. After he had placed the fourth call to Wood and given her the room numbers at the hotel where the girls were to go, he told Duncan the substance of his telephone conversation in a quiet manner so that it could not be heard by the individual who was with him. Fowler also testified that the person who was with Duncan was not present at the time the seven prostitutes were arrested at the hotel. To his knowledge that individual was nowhere near the hotel. Fowler emphasized that all of the events leading up to having the girls sent to the hotel on the night of December 18, 1974, were done without any help whatsoever or any effort on the part of the person who was with Duncan the afternoon of December 18. He also admitted that he knew who the person was, that he feared for the person's life if required to disclose his identity. "The man with Roger Duncan had nothing to do whatsoever with the entire set up of this party in any way."

Likewise, Sergeant Duncan testified that he himself had not been involved in any way with helping Sergeant Fowler arrange the party and that the confidential informant who had given him his information had been working with him in attempting to clear up the prostitution activities of appellant. Their efforts were being made simultaneous with efforts by Fowler. Duncan stated that he had not told his informant anything about Fowler's attempts to set up a party with the prostitutes through appellant or Pam Wood. He acknowledged that his informant had been with him on the afternoon of December 18, 1974, but stated that it had not been pre-arranged that he and Fowler and the informant meet jointly. He stated that during the course of Fowler's conversation with Wood on the afternoon of December 18 he was close enough to Fowler to overhear Fowler's portion of the conversation but his informant was a few feet away from him on the other side and that when Fowler had completed his conversation he informed only him and not the informant of the full gist of the conversation. Once Fowler's conversation had been completed, Fowler departed and Duncan and his informant left to go their separate way. Duncan also testified that he was present that night at the hotel and had actually participated in the arrest of the seven prostitutes there but that his informant was not present. When questioned about the statement in his affidavit, "On December 18, 1974, the informant and an undercover agent of the Dallas Police Department called 231-9061 and requested seven (7) females for prostitution purposes to be sent to their hotel," Duncan related that what he meant was that the informant was present at the time Fowler made the call but that Fowler had made the call personally and did not know the purpose of the call nor to whom Fowler was talking. Further, the reference to "their hotel" in the affidavit was the " . . . hotel that Sgt. Fowler had prearranged and the other undercover officers working with Sgt. Fowler."

In his brief, appellant quotes from Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, wherein it was written:

"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informant's testimony, and other relevant factors."

However, the Court also wrote:

" . . . The purpose of the privilege (informant's privilege) is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation."

The identity of an informant need not be disclosed unless (1) the informant participated in the offense; ...