Frieling v. State

• Decision Date: 17 January 2002
• Docket Number: No. 03-00-00763-CR.,03-00-00763-CR.
• Citation: 67 S.W.3d 462
• Parties: Douglas W. FRIELING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

67 S.W.3d 462

Douglas W. FRIELING, Appellant, v.The STATE of Texas, Appellee.

No. 03-00-00763-CR.

Court of Appeals of Texas, Austin.

January 17, 2002.

Rehearing Overruled February 22, 2002.

Terrence W. Kirk, Law Office of Terrence W. Kirk, Austin, for appellant.

Ken Oden, County Attorney, Giselle Horton, Assistant Travis County Attorney, Austin, for appellee.

Before Justices KIDD, PURYEAR and ONION.^*

JOHN F. ONION, JR., Justice(Retired).

AppellantDouglas W. Frieling appeals his conviction for prostitution by agreeing to engage in sexual conduct for a fee.SeeTex. Pen.Code Ann. 43.02(a)(1)(West 1994).The jury found appellant guilty.The trial court assessed punishment at ninety days in county jail and a fine of $1000.The trial court, however, suspended the imposition of the sentence and placed appellant on community supervision for one year, subject to certain conditions.

Points of Error

Appellant advances two points of error.First, appellant asserts that "[s]ection 43.02 of the Texas Penal Code is overbroad in violation of the First Amendment to the United States Constitution."It is clear from appellant's argument that his federal constitutional attack is directed to subsection (a)(1) of the statute, not the entire statute.Second, appellant contends that the "trial court committed fundamental error in failing to instruct the jury that a person must intend to engage in sexual conduct for a fee in order to be convicted of `agreeing' to do so."We will affirm.

Information

The information in pertinent part alleged that appellant:

on or about the 13th day of May, A.D. 1999, did then and there knowingly offer and agree to engage in sexual conduct to wit: the defendant offered and agreed to have sexual intercourse with A. Hernandez, for a fee.

Facts

Appellant does not challenge either the legal or factual sufficiency of the evidence, but the facts will place our discussion of the points of error in proper perspective.

The instant case arises from an undercover sting operation by the Austin Police Department.Officer Angela Hernandez testified that on the night of May 13, 1999, she was working undercover in east Austin, standing at the intersection of east 12th Street and Coleto, pretending to be a prostitute.She was "wired for sound" with a police videotaping device trained on her.Hernandez described her attire as being blue jean shorts, a buttoned-down shirt untucked, with brown lace-up boots.About 9:00 p.m., a white pickup truck pulled up at the corner.Hernandez identified the driver as appellant.He was alone.The truck window was down.Appellant stated, "Howdy."Hernandez responded, "Hey, what's up."Then appellant asked, "What's happening?"Hernandez inquired, "Are you looking to get laid?"Hernandez explained that out on the street "laid" meant sexual intercourse.In response to Hernandez's inquiry, appellant responded, "Sure."Hernandez told appellant that she charged thirty dollars for "straight sex."According to Hernandez, appellant said, "Okay," and nodded his head up and down.Hernandez accepted this as an agreement.She told appellant, "Cool, meet me around here" and directed appellant by pointing to a place east on 12th Street where she would meet him.As appellant was raising the truck window, Hernandez explained that "there were too many damn laws" around.Appellant drove east on 12th Street as directed and stopped, even though the traffic light was green.The police "take-down" team immediately arrested appellant.The State introduced into the evidence the audio videotape which confirmed Hernandez's testimony.

Appellant testified that he was fifty-four years old, single, a tax accountant, and that he had lived in Austin since 1955.He related that he had served in the military for six years and had been a military policeman.Appellant stated that he had never been arrested before in his life.

On the evening in question, appellant was on his way to his ninety-year-old mother's home on Concordia Street, about a mile from the area where he encountered Hernandez.Appellant explained that he was his mother's primary caretaker and that she had become disoriented the previous day.Appellant acknowledged that he once lived on Concordia Street and he was "very familiar" with the neighborhood near 12th Street and Coleto, and that it was a "bad part of town."He was aware that there had been drug sales and prostitution in this high crime area.Appellant admitted that he had seen prostitutes "all over the place in that area."

Appellant testified that Hernandez was pacing back and forth on the corner when he saw her; that she looked liked a college girl out of place in "a rough area."When he passed Hernandez, he made eye contact with her and decided she was "in trouble."Appellant circled the block and came around on Coleto Street and stopped to determine if she was "in trouble."

Appellant testified that when Hernandez asked him if he was "looking to get laid,"he realized that she was not a college girl.He became concerned that the prostitute might be on drugs and a car-jacking was about to happen.Appellant stated that he wanted to leave but could not because of the oncoming traffic.He admitted that he said "okay" to her offer of thirty dollars for straight sex because he wanted to avoid "a confrontation."Appellant stated that he did not intend to agree to pay Hernandez for sex, that he was "trying to get out of there, I mean I wasn't concerned about this thing.I mean, I didn't know the cameras were on."Appellant related that Hernandez pointed for him to go right "over here across the street," and "meet me across the street."Appellant turned east on 12th Street and said he stopped only when he saw the police car red and blue lights.

On cross-examination, appellant acknowledged that he didn't think "you can dispute what's on the tape."When asked about his belief that Hernandez was a college girl and generally about the way prostitutes dress, appellant volunteered:

"I see prostitutes in all kinds of areas.I mean, I travel on business to Las Vegas on business and prostitutes are— look like the girl next door, I mean, very well-dressed and very prim and very proper.So, you know, I'm not sure that you can say that is—you know, what somebody is dressed like says that they're a prostitute."

The Verdict

In the jury charge the trial court submitted in the disjunctive whether appellant was guilty of knowingly offering to engage or knowingly agreeing to engage in sexual conduct for a fee as alleged.¹The jury returned a general verdict: "We, the jury, find the defendantDouglas Frieling Guilty of the offense of prostitution."By its action, the jury obviously rejected appellant's version of the event.

When different theories of liability are submitted to the jury in the disjunctive, a general verdict is sufficient if the evidence supports one of the theories.SeeLadd v. State,3 S.W.3d 547, 557(Tex. Crim.App.1999);Rabbani v. State,847 S.W.2d 555, 558-59(Tex.Crim.App.1992);Fuller v. State,827 S.W.2d 919, 931(Tex. Crim.App.1992);Kitchens v. State,823 S.W.2d 256, 257-58(Tex.Crim.App.1991).The evidence is sufficient to support the theory that appellant knowingly agreed to engage in sexual conduct for a fee.Appellant in his brief agrees.He does not challenge the sufficiency of the evidence.

Appellant's Argument

Appellant's points of error are interrelated, although one is a constitutional attack upon the statute under which appellant was convicted and the other is a claim of fundamental error in the jury charge.Appellant attacks the plain statutory language of section 43.02(a)(1) and a decision construing the statute—Mattias v. State,731 S.W.2d 936(Tex.Crim.App.1987).Appellant contends that "intent" is a necessary element of the offense of prostitution as charged, and that the Court of Criminal Appeals was in error when it held to the contrary in Mattias.Id. at 937.For this reason, appellant urges that the trial court fundamentally erred in its jury charge by not including the culpable mental state of "intent."Appellant then argues that section 43.02(a)(1) as interpreted by Mattias is constitutionally overbroad, as it suppresses a man's freedom of speech to "jokingly offer a woman a million dollars to have sex with him" or agree to have sex for a fee because he believes "that pretense is the best way to escape a situation."We shall first discuss appellant's second point of error in order to provide a broader basis for consideration of his constitutional challenge to the statute.

The Jury Charge

There was no objection to the jury charge nor was a special requested charge submitted to the trial court.SeeTex.Code Crim. Proc. Ann. arts. 36.14, 36.15(West Supp.2001).Nevertheless, appellant claims fundamental error—that the trial court failed sua sponte to instruct the jury that a person must have the intent to actually engage in sex for a fee in order to be convicted of "agreeing to do so."Appellant relies upon Almanza v. State,686 S.W.2d 157, 171(Tex.Crim.App.1984)(op. on reh'g).Almanza provides, inter alia, that if a jury charge error is not preserved at trial, as in the instant case, the accused must claim fundamental error and "will obtain a reversal only if the error is so egregious, and created such harm that he has not had a fair and impartial trial—in short egregious harm."Id. at 171.

Appellant urges that the first question is whether section 43.02(a)(1) requires a culpable mental state other than "knowingly"; that Mattias to the contrary was wrongly decided and should be overruled;² and that the statute does require an intent to consummate an offer or agreement to engage in sexual conduct for a fee.Appellant argues that "it is likely that the Legislature only meant that the defendant had to `know' what the agreement was first, and then intend to honor it by agreeing."Appellant contends that the offense of which he was convicted was a "...