My Thi Tieu v. State

• Decision Date: 08 October 2009
• Docket Number: No. 14-08-01061-CR.,14-08-01061-CR.
• Citation: 299 S.W.3d 216
• Parties: MY THI TIEU, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

299 S.W.3d 216

MY THI TIEU, Appellant, v. The STATE of Texas, Appellee.

No. 14-08-01061-CR.

Court of Appeals of Texas, Houston (14th Dist.).

October 8, 2009.

Rehearing En Banc Overruled November 19, 2009.

Brian W. Wice, Houston, TX, for Appellant.

Jessica Alane Caird, Houston, TX, for Appellee.

Panel consists of Justices ANDERSON, GUZMAN, and BOYCE.

SUBSTITUTE MAJORITY OPINION

WILLIAM J. BOYCE, Justice.

Appellant My Thi Tieu filed a petition for discretionary review. Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our opinion of July 30, 2009, and issue this substitute opinion in its place.

Appellant challenges the effectiveness of her trial counsel in connection with her conviction for misdemeanor prostitution. After the jury found appellant guilty, the trial court assessed punishment as confinement for 180 days and a fine of $2,000. Appellant's sentence was suspended by the trial court and she was placed on community supervision for one year. Appellant contends trial counsel provided ineffective assistance by (1) failing to object to certain testimony from each of the State's four witnesses; (2) failing to object to improper jury argument during the State's closing argument; and (3) asking improper questions and eliciting damaging testimony during cross-examination of the arresting officer. We affirm.

Background

Appellant was charged by information with misdemeanor prostitution stemming from an undercover investigation by the Houston Police Department at the Thai Garden massage parlor on December 6, 2007. Appellant filed a motion on May 21, 2008 seeking community supervision, and a motion requesting that the trial court assess punishment in the event of a guilty verdict. At trial, appellant entered a plea of not guilty in open court through her trial counsel on June 18, 2008.

The State presented the testimony of the arresting officer, Don Miller, and his supervisor, Sergeant Doug Hendrickson, during its case-in-chief. Appellant took the stand as the only defense witness. The State then called two additional officers involved in the investigation, Brian Surginer and Robert Price, as rebuttal witnesses to refute appellant's contention that a language barrier mistakenly led police to believe she had agreed to engage in sexual conduct for a fee.

Officer Miller testified without objection that (1) the Thai Garden placed an advertisement in a publication used by Houston police to locate massage parlors warranting investigation for prostitution; (2) someone had posted a message on a website that critiques massage parlors stating that the individual received masturbation at the Thai Garden; (3) Officer Miller was not asked to fill out a medical form upon his arrival at the Thai Garden as he would have been at a "legitimate massage parlor"; (4) appellant led him to a bedroom containing a mattress on the floor, but he was not provided with a towel to cover himself as he would have been at a "legitimate massage parlor"; (5) appellant told him to "get comfortable," which is sex industry code for "remove all of your clothing"; (6) appellant answered a call during Officer Miller's massage and told the caller—who asked if she performed "Thai slides," which involve sliding bare breasts along the customer's body—to "[j]ust come in and see"; (7) appellant undressed and continued massaging Officer Miller in the nude upon his agreement to pay an additional $100; (8) appellant performed a "Thai slide" on him; (9) appellant would not agree to perform oral sex or intercourse for a fee, but did agree to masturbate Officer Miller for $100; and (10) appellant offered to let Officer Miller "fuck her tits" as part of the activity included in the additional $100 fee. Officer Miller also testified that (1) he made an appointment with appellant over the telephone, at which time she spoke English; (2) appellant spoke English "very well" during his appointment; (3) appellant spoke English to him and the other officers at the scene while they obtained her arrest information; and (4) it is common for masseuses arrested for prostitution to claim falsely after arrest that they do not speak English.

Officer Miller further testified that he had been a Houston Police Department officer for 13 years, including seven years in the Vice Division. During direct examination by the State about the responsibilities of Vice Division officers, the following exchange took place without objection:

STATE: Do you do child pornography?

MILLER: Not only child pornography, Internet porn, we work with the F.B.I. on a project called "Innocence Lost" where we target juvenile street prostitution. Or they'll have, usually it's pimps pimping out. You know, I've caught 14, 15-year-old girls. Same with organized prostitution where it's independents advertising on the back page, like where I got this one on, or other Web sites and they'll show up and it'll be a juvenile that's being pimped out by certain individuals. And when they—the F.B.I. steps in because when they cross state lines, it's a Federal offense.

* * *

STATE: What are some of the ways that Vice learns about the different types of prostitution areas?

MILLER: There are some that are known, it's called a circuit or a track; and they're known throughout the United States. Some of these would include Bissonnet and the Southwest Freeway, Airline at Crosstimbers. These are well-known tracks where they'll bring in girls from all different states that work for maybe a week and then they'll move on to Dallas or move on to California. With the massage parlors, we see a lot of people coming from California.

STATE: When you say "they" bring them in, who are you talking about here?

MILLER: The street prostitution, usually it's the pimps will bring their girls, work an area for a period of time. If the money's good, which I've been told by the prostitutes the money's good in Houston, they'll stay. A lot of times they'll leave if their—if the prostitute's arrested. They'll just jump because they know we're not going to extradite them from California. It's not cost-effective. When they get caught, they'll fly to California. They know that Houston's not going to pick them up. We don't have the money to go pick them up for a misdemeanor crime.

STATE: You said—what about the massage parlors. You're talking about pimps and street prostitutes, who's buying from massage parlors?

MILLER: Massage parlors can be independents. They can be one person could own three or four. They are cash money making operations. That's to say that the majority of their money is going to be in cash, not reported. Some will—like [appellant] has a massage license. Some do. They'll go through the school, yet they'll masturbate because of the money. A hundred dollars extra on her massage, she's making 70 and you're paying that up front and then later on, you're paying a hundred. So, basically, she's making $170 an hour. That's not reported to anybody. That's cash. And figure 10, 20 customers a day, that's a lot of money.

Appellant points to the absence of objections during this exchange as an instance of trial counsel's ineffective assistance.

During cross-examination of Officer Miller, appellant's trial counsel asked him (1) how many times, if any, he had lied in his life; (2) if he had ever had sex outside of marriage; (3) if he had ever had sex with a prostitute while working undercover; and (4) if he masturbated in the restroom after appellant massaged him. Appellant's trial counsel also asked open-ended questions during cross-examination that allowed Officer Miller to repeat his direct testimony that appellant agreed to masturbate him for a fee. Additionally, the following exchange about which appellant complains took place during cross-examination of Officer Miller:

DEFENSE COUNSEL: Why didn't you pay [appellant] the fee so there would be evidence that she had agreed?

MILLER: I don't have to pay her the fee. Once again, the State says that she has to agree to it. It doesn't say that I have to pay her. Doesn't say I have to allow her to masturbate me. It just said that she has to agree to perform sexual contact, a sexual act, for a fee. Who would—no one's going to do that. No one's going to want some whore jerking them off and touching them. I'm sorry. Cop's not going to go that far.

DEFENSE COUNSEL: I pass the witness at this time, Your Honor.

Appellant points to this exchange as an instance of ineffective assistance.

The State next called Sergeant Hendrickson, who testified without objection that (1) Vice Division officers found an advertisement for the Thai Garden in a publication known to advertise parlors warranting investigation for prostitution; (2) he authorized an undercover investigation at the Thai Garden involving Officers Miller, Surginer, and Price; (3) Officer Miller called him from inside the Thai Garden to inform him that a "case was made" for prostitution; (4) "get comfortable" is sex industry code for "remove all of your clothing"; and (5) two other masseuses at the Thai Garden were detained and issued citations by police during their investigation, but were not arrested or criminally charged. Sergeant Hendrickson further testified that (1) appellant spoke fluent English during questioning after her arrest; and (2) it is common after a prostitution arrest for defendants to pretend not to speak English and raise "misunderstanding" as a defense.

Sergeant Hendrickson also testified that he had been with the Houston Police Department for 38 years, 18 of which were spent in the Vice Division. During direct examination by the State about other crimes related to prostitution, the following exchange took place without objection:

STATE: You said there's some crimes that go hand in hand. What kind of crimes go hand in hand with prostitution?

HENDRICKSON: Organized crime, drug related activities and there's a lot of money laundering and there's a lot of human trafficking that goes along with it. We do that,...