Chun Lin Wu v. State ( 2006 )

Opinion filed August 31, 2006

Opinion filed August 31, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00269-CR

                                                    __________

                                         CHUN LIN WU, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                 On Appeal from the County Criminal Court No. 2

                                                          Dallas County, Texas

                                            Trial Court Cause No. MB04-52488-B

                                                                   O P I N I O N

The jury convicted Chun Lin Wu of prostitution.  The trial court assessed her punishment at ninety days confinement in the county jail and a $400 fine but suspended the imposition of the sentence and placed her on community supervision for one year.  We affirm.

                                                              I. Background Facts

Wu was arrested as part of an undercover operation conducted in response to a prostitution complaint.  She was charged with one count of prostitution and pleaded not guilty.  The jury convicted Wu, and the trial court assessed punishment.

                                                                       II. Issues

  Wu challenges her conviction with two issues. Wu argues that the trial court erred by refusing to quash the information for lack of adequate notice and that the trial court erred by refusing to admit evidence of a polygraph examination.

                                                            III. Standard of Review

The denial of a motion to quash and the decision to admit or exclude evidence are reviewed under an abuse of discretion standard.  Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (admit or exclude evidence); Smith v. Dallas, 895 S.W.2d 449, 453 (Tex. App.CDallas 1995, pet. ref=d) (motion to quash).  A trial court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner.   Kendrick v. Garcia, 171 S.W.3d 698, 703 (Tex. App.CEastland 2005, pet. filed).

                                                                   IV. Discussion

Wu argues initially that the information did not provide adequate notice of the particular charge alleged.  The information alleged that Wu:

[D]id unlawfully then and there knowingly offer to and agree with M. IGO, hereinafter styled complainant, to engage in sexual conduct, to-wit: SEXUAL INTERCOURSE, with complainant for a fee, against the peace and dignity of the state.

Wu filed a motion to quash the information contending that it failed to provide sufficient notice of the fee offered or agreed to and that it did not indicate which individual offered or agreed to pay the fee.  Wu contended that, under the information, the alleged crime could have occurred in one of several ways.  The trial court denied Wu=s motion.

Wu argues on appeal that the information is inadequate because it does not specify which role she played in the transaction:  customer or supplier.  The State answers that the trial court did not abuse its discretion because Wu=s motion to quash did not comply with Tex. Code Crim. Proc. Ann. arts. 27.08 or 27.09 (Vernon 1989) and because the information provided sufficient notice.  The State notes the information tracked Tex. Pen. Code Ann. ' 43.02 (Vernon 2003) and argues the allegedly missing information is actually an improper request that the State plead the evidence upon which it intended to rely.

Courts have recognized that Section 43.02 provides three modes of committing the offense of prostitution: (1) offers to engage, (2) agrees to engage, or (3) engages in sexual conduct for a fee.  See Frieling v. State, 67 S.W.3d 462, 470 (Tex. App.CAustin 2002, pet. ref=d).  Each is a distinct means of committing prostitution.  Milczanowski v. State, 645 S.W.2d 445, 446 (Tex. Crim. App. 1983). When a statute defines the manner or means of commission in alternative ways, a charging instrument fails for lack of specificity if it neglects to identify which of the statutory means it addresses.  State v. Mays, 967 S.W.2d 404, 407 (Tex. Crim. App. 1998); see also Tullous v. State, 23 S.W.3d 195, 196-97 (Tex. App.CWaco 2000, pet. ref=d) (in the face of a motion to quash, an information must provide more specific allegations if the statute identifies more than one method by which it can be violated).

A complaint that an information does not provide adequate notice alleges a defect of form Tex. Code Crim. Proc. Ann. arts. 21.02(7), 27.09(2) (Vernon 1989); Olurebi v. State, 870 S.W.2d 58, 61 (Tex. Crim. App. 1994).  Wu=s motion to quash was sufficient to alert the trial court that she faced prosecution under a statute that criminalizes different and distinct acts. Under this information, Wu could have been convicted for offering to engage in sexual conduct for a fee or, alternatively for agreeing to engage in sexual conduct for a fee. Consequently, the trial court erred when it failed to require the State to provide more specificity. 

This error requires reversal only if it prejudiced Wu=s substantial rights.  Tex. Code Crim. Proc. Ann. arts 21.19, 21.23 (Vernon 1989). To evaluate prejudice, we must determine if, in the context of the case, the lack of sufficient notice had an impact on Wu=s ability to prepare a defense and, if so, how great an impact.  Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986).^[1]  Wu contends she was harmed by the lack of notice because Ait makes all the difference in the world as far as trial preparation is concerned if the defendant is accused of supplying the service or buying the service.@ Wu does not elaborate on the differences, and we do not appreciate any significant difference.

Wu received actual notice of the State=s allegations beyond the information.  The probable cause affidavit alleged that Officer Michael T. Igo observed Wu involved in suspicious activity and that he then engaged her in conversation. During this conversation, she agreed to engage in sexual intercourse for a fee.

The record indicates that the State=s case was simple and straightforward. The State made a brief opening statement during which it described the incident as follows:

You=re going to hear how she took him to a bedroom; how he asked her for a massage.  She said it would cost around $60.  He said, AWhat else can I get?@  And she simply stated sexual intercourse and demonstrated with a hand gesture.  She said it would be C he asked her if that was okay.  She said, AYes,@ and that the total amount was going to be $100 for sexual intercourse that day.

The State called Officer Igo as its sole witness.  He testified that he was working undercover investigating a prostitution complaint. He went to an apartment where he was met by Wu.  He told her he wanted a massage.  She led him to a room with a massage table and bed.  Wu told Officer Igo that the massage would cost $60.  When he asked if he could get anything else, she said, AYou mean ...@ and made a motion with her hands that he interpreted as sexual intercourse.  He then asked, ADo you mean we can f--k?@  Wu smiled and shook her head up and down.  When Officer Igo asked how much, she responded, AA hundred.@  Officer Igo then identified himself and placed her under arrest.

Wu=s defense was equally straightforward.  The cross-examination of Officer Igo was focused on his investigation and credibility.  Wu was provided an interpreter for the trial, but Officer Igo testified that their conversation had been in English.  Wu=s counsel challenged this by highlighting the fact that Wu was provided an interpreter immediately after her arrest.  Wu=s counsel also cross-examined Officer Igo about his report, suggesting that Officer Igo=s testimony was at odds with the report. Finally, Wu=s counsel implied that Wu was operating a legitimate massage business and that Officer Igo simply failed to realize this because of an inadequate investigation.  Wu did not testify or call any witness.  Wu=s closing argument was aimed squarely at Officer Igo=s investigation and credibility, concluding, A[T]hey really don=t deserve a guilty verdict in this case.@ 

Wu=s defensive strategy was clearly to challenge Officer Igo=s credibility by focusing on language issues, the lack of corroboration, and ambiguity in the conversation.  It is reasonable to conclude that a more specific information would have assisted Wu=s counsel and allowed a more focused challenge, but it is not reasonable to conclude that it would have significantly impacted her defense.  The State=s prosecution and Wu=s defense were both based on Officer Igo=s credibility.  The jury either believed that the transaction occurred as Officer Igo described it or that it did not.  This either or analysis would not have been altered by a more specific information. Wu=s first issue is overruled.

Wu argues in her second issue that the trial court erred by excluding the results of her polygraph examination.  Wu=s counsel arranged for her to be examined by Wayne Baker.  He prepared a report describing the exam.  Baker reported that, with the help of an interpreter, he asked Wu if she had offered or agreed to have sexual contact with the undercover officer for money or if she intended to have sexual contact with him for money.  Wu responded no to each question, and Baker interpreted the test results as indicating no deception.

The State filed a motion in limine in which it objected to any testimony concerning the polygraph test.  The trial court sustained the State=s objection.  Wu did not testify or offer evidence on the reliability of polygraph examinations but did tender Baker=s report during her case-in-chief.  The trial court excluded Baker=s report.

Wu acknowledges that Texas courts have consistently refused to allow polygraph examinations into evidence but contends that they are scientifically recognized and reliable evidence.  Wu argues that Texas courts should reconsider the per se rule against the admission of polygraph examination results because the case upon which the rule is based has been disavowed.

The Texas Court of Criminal Appeals has consistently held that polygraph examinations are inadmissible for all purposes.  See, e.g., Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985).^[2]   This rule dates back to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which held that a systolic blood pressure test was inadmissible absent evidence of general acceptance in the scientific community.  In 1992, the Texas Court of Criminal Appeals held that Frye=s general acceptance standard had been replaced by the then recently adopted Texas Rules of Criminal Evidence.  Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992).  The court in Kelly considered the admissibility of DNA evidence and did not directly address polygraph exams.  The court has, however, had several opportunities since Kelly to reconsider the per se rule and has refused to do so.  See, e.g., Landrum v. State, 977 S.W.2d 586 (Tex. Crim. App. 1998).  Consequently, every intermediate court to consider this issue since Kelly has held that polygraph exam results are still inadmissible.^[3]

The United States Supreme Court recently held that a per se rule excluding polygraph exams is not unconstitutional.  United States v. Scheffer, 523 U.S. 303, 312 (1998).  The Supreme Court=s opinion noted, and in fact reflected, the ongoing debate concerning the reliability of polygraph examinations.  Eight justices agreed with the Court=s judgment but were evenly divided over the wisdom of a per se ban.^[4]  However, all eight concluded that individual jurisdictions could reasonably reach different determinations regarding their admissibility.  Id. The Texas Court of Criminal Appeals has announced Texas=s position on this issue.  Until that court or the legislature reconsiders and changes that position, we must continue to enforce the per se rule.  Wu=s second issue is overruled.

                                                         V. Holding

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

August 31, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

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     ^[1]Wu cites Bonner v. State, 640 S.W.2d 601 (Tex. Crim. App. 1982), and Adams, 707 S.W.2d 900, for the proposition that the sufficiency of notice must be determined solely by reference to the charging instrument.  Having found insufficient notice, it is now appropriate for us to consider the entire record to assess harm.  Id. at 903; see also White v. State, 50 S.W.3d 31, 39 (Tex. App.CWaco 2001, pet. ref=d).

     ^[2]For a general discussion of the admissibility of polygraph exams in state and federal courts, see Gary A. Udashen and Nathan Kight, The Law of Polygraph Evidence, 29th Annual Advanced Criminal Law Course ch. 27 (2003).

     ^[3]See, e.g., Hernandez v. State, 10 S.W.3d 812, 818 (Tex. App.CBeaumont 2000, pet. ref=d); Hall v. State, 970 S.W.2d 137, 142 (Tex. App.CAmarillo 1998, pet. ref=d); Perkins v. State, 902 S.W.2d 88, 92-95 (Tex. App.CEl Paso 1995, pet. ref=d).

     ^[4]Justices Kennedy, O=Connor, Ginsberg, and Breyer concurred in the judgment and in part with the opinion but wrote separately to express reservations about the wisdom of a per se ban and to disagree with some of the grounds offered in support of an exclusion, such as the diminishment of the jury=s role in making credibility determinations.  523 U.S. at 318.  Only Justice Stevens dissented.  Id. at 320.