Wood v. State

• Decision Date: 19 July 1978
• Docket Number: No. 54325,No. 3,54325,3
• Citation: 573 S.W.2d 207
• Parties: Pamela Lou WOOD, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 207

573 S.W.2d 207

Pamela Lou WOOD, Appellant, v. The STATE of Texas, Appellee.

No. 54325.

Court of Criminal Appeals of Texas, Panel No. 3.

July 19, 1978.

Rehearing En Banc Denied Nov. 29, 1978.

Clyde W. Woody and Marian S. Rosen, Houston, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., James K. Johnson and Gerald A. Banks, Asst. Dist. Attys., Dallas, for the State.

Before ROBERTS, ODOM and TOM G. DAVIS, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated promotion of prostitution. Punishment was assessed at five years' imprisonment and a five thousand dollar fine.

The sufficiency of the evidence is not challenged.

In her first ground of error, the appellant contends the trial court committed reversible error by not sustaining her plea to the jurisdiction and venue. The appellant was arrested on November 13, 1975, at her residence in Lewisville, which is located in Denton County. At the time of the arrest, law enforcement officials executed a search warrant and seized thirteen telephones, telephone recording equipment, and some 2,000 index cards and stenographic pads containing the names of male customers used in the prostitution enterprise. Just before the arrest of the appellant, Dallas police officers arrested two women at a Dallas motel who had arrived to fill dates of prostitution with two undercover vice squad officers. These two women came to the motel in response to a telephone call placed by Officer Fowler of the Dallas Police Department approximately an hour before to the appellant at her residence in Lewisville. Officer Fowler testified that he was familiar with the voice of the appellant, who also went by the name of "Syn" and that he had on prior occasions spoken with her at the same telephone number. Arrangements involving the two women were discussed during the telephone conversation, including price.

The appellant argues that the instant offense could only be prosecuted in Denton County. The State counters that Dallas County was the only county in which venue would be proper.

Article 13.18, V.A.C.C.P., the general venue statute, provides:

"If venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed."

No other special venue provision in chapter 13 governs the instant case. Thus, the key issue is, in what county was the offense committed? ¹

V.T.C.A., Penal Code Sec. 43.04(a), provides:

"(a) A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes."

The elements of this offense are:

(1) a person;

(2) knowingly (3) owns, invests, finances, controls, supervises, or manages;

(4) a prostitution enterprise;

(5) that uses two or more prostitutes.

In Taylor v. State, Tex.Cr.App., 548 S.W.2d 723, we defined "prostitution enterprise" as used in V.T.C.A., Penal Code Sec. 43.04, to mean "a plan or design for a venture or undertaking in which two or more persons offer to, agree to, or engage in sexual conduct in return for a fee payable to them."

In the present case we are convinced that the offense was committed in two counties, Denton and Dallas. Some of the elements occurred in Denton County, and at least one of the elements of the offense occurred in Dallas County. While the appellant was arrested in Denton County and the search warrant was executed there and her "enterprise" was apparently based out of Denton County, the two prostitutes were arrested in Dallas County. They were a part of the "venture" or "undertaking" and both Agreed to engage in sexual conduct in return for a fee payable to them in Dallas County. Further, it is conceivable that an individual can own, invest, finance, control, supervise or manage an operation in several counties at once, although the base of the operation, in the form of telephones, telephone recording equipment, lists, ledgers, typewriters, etc., is physically located only in a single county.

In applying Art. 13.18, supra, to the facts of this case, we resort to Article 5429b-2, V.A.C.S., the Code Construction Act. Section 1.01 thereof provides:

"This Act provides rules to aid in the construction of codes (and amendments to them) enacted pursuant to the state's continuing statutory revision program."

This Act is applicable to aid in the construction of Chapter 13 of the Code of Criminal Procedure, which was amended in Acts 1973, 63rd Leg., ch. 399, pp. 883, 976-979. Sec. 1.02, supra.

Section 2.02(b) of the Act provides:

"The singular includes the plural, and the plural includes the singular."

With the aid of this provision in the Code Construction Act, Art. 13.18, V.A.C.C.P. can be read as follows:

"If venue is not specifically stated, the proper Counties for the prosecution of offenses Are those in which the offense was committed."

This interpretation resolves the dilemma that is presented when a single offense is committed in more than one county and the terms of the special venue provisions are inapplicable, as is the situation in the present case. Were it not so construed, crimes that are committed in more than one county and which do not fall within any of the special venue provisions of Chapter 13 of the Code of Criminal Procedure could not be prosecuted in any county. Article 1.26, V.A.C.C.P., states:

"The provisions of this Code shall be liberally construed, so as to attain the objects intended by the Legislature: the prevention, suppression and punishment of crime."

We hold that venue in the present case was proper either in Dallas or Denton Counties; therefore, the trial court did not err in denying appellant's motion for change of venue.

The appellant next contends that the trial court committed reversible error and abused its discretion in allowing Sgt. Duncan of the Dallas Police Department to testify as an expert about the contents of two thousand 3 X 5 index cards and several stenographic pads seized during the execution of the search warrant. The State qualified Duncan as an expert with respect to client lists generally used in prostitution enterprises.

Duncan testified that prior to the instant case he had investigated between thirty and forty aggravated promotion of prostitution cases. He further stated that lists similar to those seized in the present case had been confiscated by him on at least ten prior occasions and that in his experience the overwhelming majority of the trick lists seized all maintained the same symbols. When asked how he had arrived at his conclusion as to what certain symbols stood for, Duncan responded, " . . . the trick lists I have seized, I've been able to seize a code that the procurers and prostitutes themselves had written down." He stated that a code was not, however, seized in the instant case.

The trial court acted within its discretion in ruling that Duncan was qualified as an expert witness in the matter.

In her third ground of error the appellant contends that the court committed reversible error by failing to suppress evidence seized in an allegedly unlawful search. Several arguments are presented by the appellant in support of this ground of error and accordingly each will be considered separately.

(A) Improper Designation of Personal Property

The appellant asserts that the search warrant was defective and void due to the improper designation of the personal property to be seized as implements used in the commission of an offense. The search warrant affidavit commences: "Affidavit to Search for and Seize Implements Used in the Commission of Offenses," and describes the property as implements

" . . . kept for the purpose of aiding in the commission of an offense defined by the Penal Code of the State of Texas, to wit: Section 43.04, Aggravated Promotion of Prostitution and that the implements concealed in such premises are described as: telephones, telephone recording equipment, records containing names of clients involved in the prostitution enterprise (i. e. trick lists)."

The search warrant itself contains the same language.

The appellant argues the property items were improperly classified as criminal instruments, citing Universal Amusement Co., Inc. v. Vance, 404 F.Supp. 33 (S.D.Tex.1975). In that case the court found that the plaintiff therein "ha(d) proven harassment and prosecution undertaken by state officials in bad faith without hope of obtaining a valid conviction. . . . " under V.T.C.A., Penal Code Sec. 16.01. Here, however, appellant was not charged with nor convicted of violating Sec. 16.01, supra. No effort was made to convict the appellant under the criminal instrument statute for possessing telephones, telephone recording equipment and trick lists. Thus, Universal Amusement Co., Inc., supra, does not address the issue in the present case. Moreover, the search warrant was issued to search for and seize "implements or instruments used in the commission of a crime," not "property specially designed, made, or adapted for or commonly used in the commission of an offense." See and compare Article 18.02(2) and (9). Thus, the appellant's contention that the "items of personalty sought to be seized were improperly classified as

criminal instruments" is overruled. (B) Abuse of Dallas

County Grand Jury Summonsing Power and Appellant's

Right of Privacy

The appellant argues that the police in investigating the present case

"Improperly utilized the Grand Jury Summonsing power to seize the unlisted telephone number of Virgil J. Etchieson and evidence of the unlisted number (and that) the Grand Jury's action was not empowered by statute and said power was not otherwise within the Grand Jury's scope of authority."

Appellant has no standing to complain of any allegedly unlawful seizure of information from Southwestern Bell. The subpoenaed matters tendered by Southwestern Bell were monthly billing statements of J. Etchieson and the information that the...