Opinion
No. 05-08-00237-CR
Opinion Filed March 16, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-07-58707-Q.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS. Opinion By Justice LANG-MIERS.
MEMORANDUM OPINION
Appellant was convicted of state jail felony prostitution. On appeal, she challenges the factual sufficiency of the evidence to support her conviction. We overrule appellant's sole issue and affirm the trial court's judgment.
Under the penal code, the crime of prostitution is a state jail felony if the actor has previously been convicted of prostitution three or more times. Tex. Penal Code Ann. § 43.02(c) (Vernon 2003).
Factual Background
Appellant was indicted for state jail felony prostitution and charged in the indictment with knowingly offering to engage in deviate sexual intercourse for a fee. She waived her right to a jury trial and stipulated to her identity as the defendant in three prior convictions for prostitution. The State presented the testimony of Dallas police officer G. Weatherford. Weatherford testified that he was "working in an undercover capacity, doing prostitution" when he honked his horn at appellant. Appellant got in Officer Weatherford's pickup truck and according to Officer Weatherford, the following conversation occurred:[Officer Weatherford]: I asked her did she party. And she said, Yeah. And I said, My kind of party? And she says, What do you mean? And I said, A blow job. She said, Yes. And I said, What's a fair price? She said, 20. I said, Okay.Officer Weatherford testified that, from his perspective, appellant agreed to put Officer Weatherford's penis in her mouth for money. He also testified that he has never heard the phrase "blow job" mean anything other than oral sex, which is conduct included within the definition of deviate sexual intercourse under the penal code. At the conclusion of Officer Weatherford's testimony, both sides rested. Before the trial court announced its decision, appellant's counsel argued that there is no legal definition of "blow job," and that there was no evidence that his client thought the term "blow job" meant the same thing as Officer Weatherford understood it to mean. The trial court found appellant guilty as charged in the indictment and sentenced appellant to two years in jail, but suspended the imposition of confinement and placed appellant on community supervision for two years.
Analysis
Appellant argues that the evidence is factually insufficient to prove that she knowingly offered or agreed to engage in deviate sexual intercourse as alleged in the indictment because there is not sufficient evidence to prove that she "knew the slang term `blow job' meant deviate sexual intercourse" under the penal code. In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. We measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Wooley v. State, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008). The State was required to prove beyond a reasonable doubt that appellant knowingly offered or agreed to engage in sexual conduct for a fee. Tex. Penal Code Ann. § 43.02(a)(1) (Vernon 2003). Under the penal code, sexual conduct includes deviate sexual intercourse, which is defined as "any contact between the genitals of one person and the mouth or anus of another person." Id. § 43.01(1), (4). Appellant essentially contends that she cannot be convicted based strictly on Officer Weatherford's use of the slang term "blow job," without independent evidence that appellant shared Officer Weatherford's understanding of that term's meaning. To support her argument, appellant cites Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App. 1991), in which the court reversed a conviction because it was based on the use of slang terminology. In Boykin, the appellant was charged with delivering a simulated controlled substance while expressly representing that substance to be cocaine. Id. at 743. The evidence at trial established that the appellant referred to the substance as a "twenty-cent rock" and that, at the time of the offense, cocaine was referred to as "rock" in certain parts of Houston. Id. at 784. In Flowers v. State, 843 S.W.2d 38 (Tex.Crim.App. 1992), the court explained and limited the holding in Boykin:Boykin involved a conviction for delivery of a simulated controlled substance, under the Controlled Substances Act. Boykin sold the undercover officer something described as a "twenty-cent rock," and it was prosecuted under § 482.002(a)(1). Section 482.002(a) provides that an offense may be committed either by an express or an implicit representation of the substance delivered as a controlled substance. We held that an express representation under § 482.002(a)(1) must utilize one of the statutory controlled substance terms contained within the Controlled Substances Act. Slang terms, such as "twenty-cent rock," were not criminalized by § 482.002(a)(1). Otherwise, the enactment of § 482.002(a)(2), which does encompass slang terms, would have been superfluous. For this reason, the evidence was insufficient to support a conviction under § 482.002(a)(1).
Furthermore, we did not hold in Boykin, as a matter of law, that slang terms could never be used as explicit representations in a different context, but came to that conclusion only in our construction of § 482.002(a)(1). Slang terms, on the other hand, are not unmistakable because their meanings can change. Thus, in construing § 482.002(a)(1), we determined that only representations employing the statutory controlled substances terms were appropriate because they are always unmistakable. This interpretation was especially persuasive considering the textual context since § 482.002(a)(2) clearly does encompass representations involving only slang terminology.Flowers, 843 S.W.2d at 40 (internal citations omitted). In short, Boykin is distinguishable because the specific statute in question required an "express" representation to establish a violation. The statute in this case does not require an "express" offer or agreement to engage in sexual conduct for a fee to establish a violation. See Tex. Penal Code Ann. § 43.02(a)(1). Instead, this case is more analogous to Flowers, in which the court upheld a conviction for purchasing stolen property (theft) based on the use of slang terminology. In that case, appellant purchased oil field equipment that an undercover Special Texas Ranger told him was "ripped off." Flowers, 843 S.W.2d at 39-41. The Flowers court explained that, outside the context of the specific statute at issue in Boykin, the fact-finder should determine whether the use of slang terms is sufficient to support a conviction. Id. We also note that our sister court has held that soliciting a "blow job" for $10 is sufficient to support a conviction for solicitation of prostitution. Moreno v. State, 860 S.W.2d 612, 616 (Tex.App.-Corpus Christi 1993, pet. ref'd). Having reviewed the evidence under the appropriate standard, we conclude that the evidence is factually sufficient to support appellant's conviction for prostitution. We overrule appellant's sole issue.