Steinbach v. State

• Decision Date: 13 November 1998
• Docket Number: No. 03-97-00773-CR,03-97-00773-CR
• Citation: 979 S.W.2d 836
• Parties: Helen STEINBACH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 836

979 S.W.2d 836

Helen STEINBACH, Appellant, v. The STATE of Texas, Appellee.

No. 03-97-00773-CR.

Court of Appeals of Texas,

Austin.

Nov. 13, 1998.

Anthony P. Griffin, Anthony P. Griffin, Inc., Galveston, for Appellant.

Richard J. Miller, County Attorney, Belton, for State.

Before Chief Justice YEAKEL, Justices B.A. SMITH and ONION. ^*

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

This is an appeal from a Class B misdemeanor conviction for prostitution. See Tex. Penal Code Ann. § 43.02(a)(1) (West 1994). The jury found appellant Helen Diane Steinbach guilty. The trial court assessed her punishment at 180 days in the county jail and a fine of $500. The imposition of the sentence was suspended and appellant was placed on community supervision for a period of eighteen months. We will affirm.

POINTS OF ERROR

Appellant advances two points of error challenging the sufficiency of the evidence "as a matter of law" because the proof failed to show (1) sexual contact (skin upon skin) and (2) an agreement to engage in sexual contact, both being required in a prosecution for prostitution as charged. We shall consider both contentions together.

THE STATUTE

Section 43.02 provides in pertinent part:

(a) A person commits an offense if he knowingly

(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; ...

Tex. Penal Code Ann. § 43.02(a)(1) (West 1994).

" 'Sexual conduct' includes deviate sexual intercourse, sexual contact and sexual intercourse." Tex. Penal Code Ann. § 43.01(4) (West 1994). " 'Sexual contact' means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Tex. Penal Code Ann. § 43.01(3) (West 1994).

The information in the instant case charged in part that appellant engaged in sexual conduct, "to wit: sexual contact with Houston Johnson for a fee." ¹ Thus, the information limited the prosecution to a specific type of sexual conduct. Conviction may be had only upon these allegations. See Thompson v. State, 577 S.W.2d 497, 498 (Tex.Crim.App.1979).

STANDARD OF REVIEW

The standard for reviewing the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Skillern v. State, 890 S.W.2d 849, 879 (Tex.App.--Austin 1994, pet. ref'd). The standard of review is the same in both direct and circumstantial evidence cases. See Green v. State, 840 S.W.2d 394, 401 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993).

In our review of the legal sufficiency of the evidence, as raised by appellant, we must consider all the evidence which the jury was permitted, properly or improperly, to consider. See Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 222 (1994); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991). The legal sufficiency of the evidence is measured against a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.App.--Austin 1997, no pet.). In analyzing a challenge to the legal sufficiency of the evidence, the reviewing court does not realign, disregard, or weigh the evidence. Rodriguez v. State, 939 S.W.2d 211, 218 (Tex.App.--Austin 1997, no pet.).

The jury is the exclusive judge of the facts proved and the weight to be given the testimony. It is the judge of the credibility of the witnesses. See Tex.Code Crim. Proc. Ann. art. 38.04 (West 1979); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). The jury is free to accept or reject any or all of the evidence presented by either party. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991). Reconciliation of evidentiary conflicts is solely the function of the trier of fact. See Miranda v. State, 813 S.W.2d 724, 733-34 (Tex.App.--San Antonio 1991, pet. ref'd).

FACTS

In light of the nature of appellant's two contentions, the facts must be discussed in some detail. Chief of Police Michael Gentry of the Harker Heights Police Department testified that from mid-summer until December 1996, his department conducted an undercover investigation of four sexually-oriented businesses located on Veterans Memorial Boulevard in the city. One of the businesses was known as "Fantasy Lingerie." Chief Gentry stated that numerous complaints concerning prostitution, obscenity, and public lewdness were received about the four businesses, and some sixteen to twenty percent of police activity in the city stemmed from the four businesses. The police department employed an "outside" law enforcement officer, Houston Johnson, as an undercover operative. Johnson was instructed to be a passive witness and to remain clothed at all times during his investigation.

About 5:00 p.m., on September 16, 1996, Johnson went to the "Fantasy Lingerie" in company with Sergeant John Warford, who remained outside to attempt audio monitoring. Johnson was dressed in blue jeans and a short-sleeve shirt and wore a recorder on his body. ² When he entered the business establishment he was met by a woman whom he identified as appellant. She was dressed in a white lacy bra and panties and high heeled shoes. Appellant told Johnson that her name was Roxy and asked if he wanted $20 for ten minutes or $30 for 30 minutes. Following his instructions, Johnson asked for the 30 minute performance. He paid appellant $30. Appellant led Johnson to a back room with a stage and seated him in a plastic chair. She left the room for a few minutes. Upon her return she explained to Johnson that the $30 was for the management and that if he wanted her to dance he would have to pay another $20. "And she went on to explain that the more money that I paid her or tipped her, the more clothing she would remove, the more erotic she would dance, the more she could perform." Johnson gave her $20 and she began dancing around the chair and on the stage in her bra and underwear. Upon the payment of another $20 appellant removed her bra and began dancing topless. When Johnson gave her "a third $20," appellant pushed Johnson's legs apart as he was seated in the chair, turned her back and she "basically just ground and rubbed on my crotch with her rear." The contact was with Johnson's penis through his pants. Upon the payment of the fourth $20 bill, appellant removed her panties and was totally nude except for her shoes where she placed the money. Johnson explained that he had an erection and appellant's intent appeared to be to arouse his sexual desires "and to get more money out of me." Johnson gave appellant still another $20 and she placed her right foot on the chair and manipulated her genitalia with her fingers. When another $20 exchanged hands, appellant repeated the earlier procedure with her foot on Johnson's leg. She then sat in Johnson's lap in grinding motion making contact with his penis through his pants. Upon the "seventh 20 dollar bill" being paid, appellant repeated this procedure. When Johnson gave appellant the eighth $20 bill, she danced around, masturbating herself, and then did "the heaviest grinding on my crotch that she had done the whole time, just really hard." She finished her performance up on the stage. Appellant then dressed and left the room. Including the first $30, Johnson paid appellant $190.

Patricia Harris, the owner of "Fantasy Lingerie" testified the business had a license for nude modeling; that each model worked on the basis of tips earned; that each dance is video-monitored by another employee; that lap dances are not permitted; and that she was present on the occasion in question and did not notice any lap dancing by appellant. Ruth Mallory, the manager, testified that she did not see appellant touch Johnson or perform a lap dance. She explained that if she had seen a lap dance, she would have stopped it and fired appellant.

The 23-year-old appellant admitted that she performed nude dancing at the "Fantasy Lingerie" at the time in question. She denied, however, that she ever touched Johnson or had sexual contact with him when she performed a nude dance for him. She agreed that she usually told customers that her tip standard was $20, which was a fee not only in appreciation for the performance already given but in return for her willingness "to do something more."

The trial court submitted a hypothetically correct jury charge based upon the offense alleged, to which appellant offered no objection. The jury found appellant guilty of prostitution.

FLESH UPON FLESH?

Appellant urges that a prosecution for prostitution under section 43.02(a)(1) by engaging in sexual contact requires a flesh upon flesh touching of the anus, breast, or any part of the genitals of another person. She contends that this is a question of first impression. The parties have not cited any cases dealing with this precise issue and we have found none in the prostitution cases reviewed.

In Resnick v. State, 574 S.W.2d 558 (Tex.Crim.App.1978), the defendant was convicted of public lewdness by an act of sexual contact under section 21.07 of the Penal Code then in effect. ³ Sexual contact then defined in section 21.01(2) was similar to the definition of sexual contact for prostitution cases presently found in section 43.01(3).

In Resnick, the defendant, while in an adult movie house, placed his hand on that portion of trousers which covered the police officer's genitals. This was sufficient to constitute "sexual contact" and to establish the offense of public lewdness. It was held that "touching" within the statutory definition of sexual contact means to perceive by the sense of feeling and the interposition of a layer of fabric is not sufficient to prevent a touching. The court also observed:

Were w...