Threlkeld v. State , 165 Tex. Crim. 93 ( 1957 )

MORRISON, Presiding Judge.

Our prior opinion is withdrawn.

The offense is pandering; the punishment, 20 years.

The indictment alleged that appellant did unlawfully, by means of an agreement of compensation, procure and attempt to procure, and was concerned in procuring the named female with her consent, as an inmate of and for a house of prostitution, the same kept for prostitution and where prostitutes were permitted to and did resort and reside for the purpose of plying their vocation.

The court, in his charge, defined a “house of prostitution” as meaning a house or place kept for prostitution or where prostitutes are permitted to resort or reside for the purpose of plying their vocation.

The state opened its case with the testimony of two police officers of Dallas who were assigned to duty as detectives and members of the Special Service Bureau or “Vice Squad.”

Detective Comminskey testified that the Martin Hotel was a place where “prostitutes resort and reside for plying their vocationthat to his knowledge it was a'house of prostitution, which he understood to be “where girls are called to or reside there for purposes of prostitution;” that he had personally arrested well known prostitutes there, two of whom he named, and testified that they were offering themselves as prostitutes for pay at the Martin Hotel.

This witness further testified that he knew of the Lawrence Hotel being a house of prostitution, though he had not personally made arrests there, and, when asked if he knew of the Dallas Hotel being a house of prostitution, answered, “There have been arrests there, yes.”

Officer Gilmore, also of the Vice Squad, testified that the reputation of the Martin Hotel was that it was a place where prostitutes resort to and sometimes reside for the purpose of plying their vocation of prostitution; that on September 24, 1955, he “made a case there” and had heard of numerous other arrests for prostitution being made there. He was not cross-examined.

The girl named in the indictment testified that she was 17 years of age at the time of the trial (February 16, 1956) and that before she first came to Dallas about April 20, 1955, she lived with her parents in a South Texas town.

She testified that when she came to Dallas in August she checked into the Dallas Hotel under an assumed name, with the prefix “Mrs.;” that appellant, a bellhop, stayed with her that night and proposed that she work for him as a prostitute, and she agreed.

The next morning, according to the girl’s testimony, appellant “checked me out and put me into the Lawrence Hotel,” which was next door to the Dallas Hotel, “to work as a prostitute,” which was the agreement between them, and she worked as a prostitute and had sexual intercourse with three men for money in her room that night, and that appellant arranged for these men to come to her room.

The next morning, appellant “came and got me and we checked into the Texas Hotel as man and wife,” and she worked there as a “call girl” for the Dallas and Lawrence Hotels, appellant taking “the majority” of the money from her. The record shows the following:

“Q. Was there an agreement that he would take most of the money and that he would leave you with about six dollars and he paid the room rent? A. Yes.”

She testified that she then moved into the Martin Hotel, where she worked as a prostitute, appellant being responsible for the move.

She had seven or eight “dates,” which she testified meant sexual intercourse with men for money, and each day appellant took most of the money, as per their agreement. She then went back to the Texas Hotel for a time, and thereafter returned to the Martin Hotel, where she stayed from September 18th to 24th.

“Q. Was there an arrangement between Joel Threlkeld and the people there to send these men to you? A. Yes.”

The girl further testified that on one occasion a man came up and wanted a “half and half” date and she refused; that the man went back to the lobby; that thereafter appellant and the man came back to her room, and when she again refused to perform the act of sodomy with her mouth appellant threatened her, and she did. Twice during her stay at the Texas Hotel, appellant beat her about the face and threatened her.

Another police officer, T. M. Henson, Jr., testified that on September 24, 1955, he was called to a cathedral, where he talked to the girl and then went and arrested the appellant, who worked at the Texas Hotel, “and when I walked in he ran out of the hotel and went down Houston Street and I caught him in the lobby of the Lawrence Hotel; when I caught him it looked like he was trying to get under a desk in the lobby.” The arrest was made the same day the officer talked to the girl.

The appellant did not testify or offer any evidence in his own behalf.

Appellant’s contention that the girl did not stay long enough in one place to become an inmate and the fact that the evidence disclosed that the appellant caused the girl to ply her trade at several hotels would not defeat the state’s case, which was made when it was shown that he did cause her to go to the Martin Hotel, where she stayed on two occasions, during which stay there was “an arrangement between Joel Threlkeld and the people there to send these men to you” and where she had prostitution “dates,” together with the proof that the Martin Hotel bore the reputation of being a house of prostitution.

We find no merit in the appellant’s contention that the court erred in permitting the girl to testify about the act of sodomy which the appellant forced her to commit on one of the customers he had sent to her room. The “half and half” date about which she testified was a direct consequence of the criminal act of pandering with which the appellant was charged and was therefore admissible.

Appellant’s contention that the girl is an accomplice and hence the evidence is insufficient to support the conviction because of the insufficiency of the corroboration of her testimony presents the only serious question in the case. A state of confusion appeared to have existed on this question until the rendition of the opinion by this court in Porter v. State, 141 Texas Cr. Rep. 417, 148 S.W. 2d 202. The prior holdings were reviewed, some were overruled, and the rule announced that if the evidence shows that the woman involved originates the enterprise she is an accomplice; but if, on the other hand, the adcused approaches the woman and induces her to partake in the criminal enterprise, then the offense is committed when the solicitation is made, and the woman is not an accomplice.

The same rule has been given application in procuring cases in Mann v. State, 151 Texas Cr. Rep. 205, 205 S.W. 2d 985.

The record here is clear that the appellant solicited the girl and initiated the criminal enterprise which, according to the holdings in the cases cited, constitutes the offense, and, even though other violations of the law may follow as a consequence of the negotiations, they do not relate back and make her a party to the original offense of pandering.

Finding no reversible error, the judgment of the trial court is affirmed.