Jeannie Coutta v. State , 385 S.W.3d 641 ( 2012 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JEANNIE COUTTA, '
No. 08-10-00039-CR
Appellant, '
Appeal from the
v. '
243rd District Court
THE STATE OF TEXAS, '
of El Paso County, Texas
'
Appellee.
' (TC# 20040D01265)
OPINION
A jury found Appellant guilty of one count of aggravated promotion of prostitution (Count
I) and three counts of engaging in organized criminal activity (Counts II-IV). The same jury
assessed punishment at confinement of ten years for Count I, seventeen years for Count II, two
years each for Counts III and IV, and a fine of $10,000 for each count. Appellant appeals her
convictions.1 We affirm.
BACKGROUND
Appellant and her business partner, Phyllis Woodall, owned and operated the Naked
Harem, an adult-entertainment establishment where patrons paid a cover charge for admission to
be entertained by totally-nude women. For a $1 tip paid to a dancer per song, a patron could sit by
one of the stages and watch the dancer on stage perform in the nude. For an additional $10 to $30,
a patron could purchase a “table dance” or “lap dance,” a term used interchangeably at trial to
describe a dance in which the dancer was closer and more intimate with the patron. A patron
1
Appellant’s indictment originally included a fourth count of engaging in organized criminal activity (Count V),
which the State dismissed during Appellant’s first trial. After a jury was unable to reach a unanimous verdict in the
first trial as to Counts I-IV, the trial court granted a mistrial. The case before us arises from Appellant’s subsequent
trial.
could also purchase a private two-song dance in one of four private rooms in the club for $130 cash
or $140 if paid by credit card. A patron could purchase additional songs if he wanted more time
in the private room.
The dancers were independent contractors who had to pay the club a “floor fee” for the
privilege of dancing in the Naked Harem. They were not paid a salary. The dancers kept all of
the money that patrons paid for stage and table dances, but they split with the Naked Harem the
money earned from private dances. For the two-song minimum private dances, the Naked Harem
kept $50 if the patron paid in cash, and kept $60 if the patron paid with a credit card.
The Naked Harem made most of its money from the private dances because the dancers
kept all of the money from their stage and table dances and, thus, private dances were the “number
one” priority of the club. Appellant and Woodall encouraged dancers to perform more private
dances rather than limiting their performances to stage and table dances, and dancers who limited
their dances were viewed as being selfish and not making money for the club.
Appellant and Woodall were “hands-on” owners and operators of the Naked Harem, were
in control of the club and the entertainment provided therein, performed managerial duties when
needed, and made all of the decisions regarding who performed duties at the club, including
decisions about the hiring and firing of dancers. They made all of the rules and regulations
regarding activities at the club and if the managers had any questions, they were required to obtain
“permission” from Appellant and Woodall. Appellant was physically present at the Naked
Harem about 85 percent of the time and, upon arriving at the club, would see what needed to be
done, perform general upkeep, and obtain updates from the managers about the daily operations
which included, among other things, information regarding which dancers were making and
2
producing the most money, “who was doing what,” and who was causing trouble. The managers
also discussed with Appellant and Woodall the daily ledgers documenting the club’s revenues and
sources thereof.
Appellant and Woodall had cameras installed throughout the public areas of the club from
which they could and did monitor club activities, except those occurring within private rooms.
Appellant and Woodall monitored the activities from within the club and from home. Appellant
also had recording equipment installed on the club’s telephones so that she could record and
monitor the phone conversations of employees and dancers to determine whether they were
speaking with police.
In addition to Appellant and Woodall, other members of the combination identified in
Counts II through IV of Appellant’s indictment included Richard Hamm, Jacob Crum, Sandra
“Tammy” Zepeda, and Maria Brooks, who were employed as managers at the Naked Harem.
These managers were paid a percentage of the club’s revenues and had a monetary stake therein.
While Appellant and Woodall handed down an “official” policy that no sex or sexual
contact was permitted within the club or the private rooms, the rules enforced by Appellant,
Woodall, and the managers were very different. Hamm, who had been employed at the Naked
Harem for approximately nine years, testified that signs stating that sex was not permitted were not
posted until “after the warrant was issued,” and Crum, who had worked at the club for seven years,
similarly testified that the signs were posted after the first raids leading to Appellant’s prosecution.
Hamm testified that during the table or lap dances performed on the main floor of the
Naked Harem, dancers would “grind” on the patron’s lap. Crum likewise testified that in
performing such dances, the dancer would “grind” totally nude upon the patron, rubbing her
3
genitals against the patron for the patron’s sexual excitement. Dancers and patrons testified that
the dancers would rub their genitals and breasts on the patron’s private parts and allow patrons to
touch their breasts, buttocks, and genitalia for the patron’s sexual satisfaction. 2 The sexual
contact was visible to the club managers and to Appellant and Woodall, who were also able to
view the activities within the club through the camera monitors. A video showing Appellant
observing a sex show was introduced into evidence.
Hamm and Crum stated that Appellant and Woodall had established the “whole process of
prostitution” at the Naked Harem and that the owners and managers were aware that prostitution
was occurring in the private rooms of the club. Hamm and Crum testified that they specifically
discussed with Appellant and Woodall the prostitution and sex occurring within the private rooms.
Crum testified that in one instance, in Appellant’s presence, he paid to have sex with two dancers
in one of the private rooms and Appellant commented, “[T]hat was great.” Crum acknowledged
that patrons were paying to have sex in the private rooms and testified that the managers were
aware of those activities.
Francisco Javier Cisneros had installed the phone and camera monitoring systems in the
Naked Harem. Cisneros testified that he had informed Appellant and Woodall that the dancers
and patrons were having sex in the private rooms but Appellant and Woodall would deny it.
Cisneros, without informing Appellant and Woodall, placed cameras within the private rooms and
recorded the activity occurring therein. Cisneros testified that he never presented the recordings
to Appellant and Woodall because he figured the owners didn’t want the activity to stop.
Cisneros’ recordings of activity occurring within the private rooms were introduced into evidence
2
Hamm, Crum, and all of the dancers and patron witnesses called by the State were granted transactional immunity
from prosecution.
4
at trial.3 The recordings showed numerous sex acts.
Patron Donald Glines testified that he paid the Naked Harem for sex. Glines said that
when he paid for table or lap dances, the dancers would rub their breasts and genitals on him for his
sexual gratification and some would ask if he wanted to go to the private room and have sex. On
many occasions, Glines paid the fee to go to the private rooms and during at least one-half to
two-thirds of those occasions, Glines engaged in sexual intercourse with the dancer and would
sometimes tip the dancer. On those occasions when he and the dancer did not have sexual
intercourse, the dancer would rub her genitals and breasts against him and he would touch the
dancer’s breasts and genitals. David Ruiz testified that he paid for oral sex in the private rooms at
the Naked Harem once or twice per year between 2001 and 2003, and had sex whether or not he
paid the dancer a tip. Patron Jesus Garcia visited the Naked Harem about once every three
months from 2001 to 2003, and testified that after paying for a table dance, some of the dancers
would ask if he wanted to have sex in a private room. Garcia did pay for sex in the private rooms
at the Naked Harem and testified that one of the club’s managers, Maria Brooks, would inform him
when there were new girls who wanted to go to the private rooms.4 The prior testimony of patron
Jason Casper was introduced at trial. Casper testified that he paid both for oral sex and to watch
live sex shows in a private room at the Naked Harem.
Sylvia Garcia was a dancer at the Naked Harem and testified that, on many occasions, she
had sex with a patron in a private room after he paid his fee for the private dance. Mary Snyder
testified that when she was a dancer at the club, she had sex in a private room with a patron after he
had paid his private-dance fee.
3
We address Appellant’s challenges to this evidence below.
4
Maria Brooks was named as a member of the combination in Counts II through IV of Appellant’s indictment.
5
Dancer Lucia Pinedo testified that she was employed as a dancer at the Naked Harem when
she was 15 years old. In deposition testimony admitted at trial, Appellant admitted that she and
Woodall had hired Pinedo to work at the club, and Hamm testified at trial that Appellant brought
Pinedo to him and directed that he put Pineda on stage. Hamm said Pinedo “looked pretty young”
and questioned her about her age. Hamm testified that Pinedo’s identification showed that she
was of legal age but Pinedo testified that she showed her high-school identification card, which
does not have her date of birth. Crum, who stated that Pinedo looked like a child and did not look
18 years old, testified that when he discussed his concerns about Pinedo’s age with Appellant and
Woodall, they told him not to worry. Pinedo danced topless and totally nude during her
performances and table and lap dances. She had sex with patrons in the Naked Harem’s private
rooms and, during the lap and table dances, patrons would touch her breasts, buttocks, and “private
parts.” When police first “raided” the club, Appellant, Hamm, and Crum destroyed a video
recording of Pinedo’s stage performance at the Naked Harem.
Deserae Williams Gurrola also danced nude on the stage and topless during lap dances at
the Naked Harem when she was 15 years old. During the lap and table dances, Gurrola would sit
on and grind the patron’s lap. After Gurrola had become popular in the club, manager Sandra
“Tammy” Zepeda, grabbed Gurrola, told her to “pretty up,” and escorted her to a VIP room where
a doctor who was patronizing the club had “bought her out,” meaning that he had paid for hours’
worth of songs. On that occasion, Gurrola and Zepeda’s daughter touched and rubbed each other
and utilized sex toys while the patron watched. The doctor, Gurrola, and Zepeda’s daughter then
watched while another dancer and patron had sex within the same room. Gurrola made
approximately $2,000 for the evening and when Appellant and Zepeda paid Gurrola in cash,
6
Appellant informed Gurrola that Gurrola was going to make a lot of money at the Naked Harem.
Crum testified that he thought Gurrola’s identification resembled her and when he showed the
identification to Appellant, Appellant instructed him to allow Gurrola to dance. Gurrola testified
that she spoke, acted, and looked like a 15-year-old girl when she was dancing at the Naked Harem
and noted that any mature adult would have known the difference between her and an 18 year old.
The jury was presented with other evidence regarding physical signs of sexual activity and
prostitution occurring at the Naked Harem. Hamm testified that black lights within the club
would often show semen spattered all over the dancer’s body and Crum testified that, after exiting
the private rooms, male patrons were often seen washing their penises in the men’s bathroom sink.
The jury heard testimony and saw photographic evidence that used condoms were left in the
private rooms, and were presented with testimony that Appellant and Woodall conducted a
meeting with the dancers and club employees at which they instructed the dancers that they were
not to leave used condoms in the private rooms or else be subject to a $50 fine for failing to clean
up. The dancers complied with Appellant and Woodall’s instruction at the meeting to flush
condoms down the toilet so that police would not find them. Because the flushing of used
condoms created plumbing problems at the Naked Harem, Appellant and Woodall had a special
trap installed in the sewer lines to catch the condoms. The jury was presented with photographic
evidence of the condoms collected in the trap and thrown into a trash receptacle near the trap.
DISCUSSION
In ten issues, Appellant complains: (1) that she has been denied a meaningful and speedy
appeal; (2) that the evidence is insufficient to corroborate accomplice-witness testimony in Counts
I through IV of the indictment; (3) that the trial court committed jury-instruction error; (4) that the
7
evidence is legally insufficient to support her convictions for Counts I and II; (5) that the trial court
committed harmful error in introducing a video recording; and (6) that the trial court committed
reversible error by excluding certain testimony.
SPEEDY APPEAL
Appellant asserts that she is entitled to a new trial because her appeal was excessively
delayed due to the court reporter’s failure to complete preparation of the trial record for appellate
purposes in violation of her Fourteenth-Amendment right to a meaningful and speedy appeal, and
contends that she has been substantially prejudiced thereby. We disagree.
The trial record in this case was due to be filed on April 10, 2010, and the filing of the
14-volume reporter’s record was completed on April 5, 2011. Within that time frame,
Appellant’s counsel zealously pursued the filing of the reporter’s record, as noted by the trial court,
and we twice ordered the trial court to conduct hearings to determine the status of the record. In
each of those hearings, the trial court’s reporter explained under oath her reasons for the delay,
which were based upon the reporter’s heavy work load and her own medical and health-related
issues. During the first of those hearings, the trial court noted that the reasons for the delay
involved the reporter’s health issues and the trial court’s heavy docket, and that the trial court had
attempted to assist by relieving the reporter of some of her duties and by employing a “roving”
court reporter. During the second hearing, the trial court stated that it had changed the reporter’s
duties to allow her more time to work on preparing the record. After each hearing, we granted
extensions for the filing of the reporter’s record, neither of which was met. On March 2, 2011, the
court reporter requested an additional extension of time within which to prepare the record, and on
March 8, 2011, Appellant filed a Motion for New Trial Due to the Failure of the Court Reporter to
8
Timely File the Record on Appeal. The following day, we denied Appellant’s motion and
ordered the trial court to conduct another hearing and take appropriate action to ensure that the
record was completed quickly. We also directed that unless the trial court appointed a substitute
court reporter, the complete record was due by March 28, 2011, and noted that the court reporter
would face possible citation for contempt of court and reporting to the Court Reporter’s
Certification Board for failure to comply with the deadline. The trial court found that the reporter
would be able to meet the deadline and stated that it would take an active role and monitor the
completion of the record.
A convicted defendant does not enjoy a Constitutional or Sixth Amendment right to a
speedy appeal. See Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); see also Rheuark v.
Shaw, 628 F.2d 297, 302 (5th Cir. 1980), cert. denied, 450 U.S. 931, 101 S. Ct. 1392, 67 L. Ed. 2d
365 (1981); Sparkman v. State, 634 S.W.2d 82, 84 (Tex.App.—Tyler 1982, no pet.). Texas,
however, statutorily provides a convicted defendant a right of appeal and the appellate process
must, therefore, comport with due-process requirements. See Rheuark., 628 F.2d at 302.
No Supreme Court decision holds that excessive delay in a direct appeal denies a criminal
appellant due process. See Reed v. Quarterman, 504 F.3d 465, 485 (5th Cir. 2007). We are
guided, however by the opinions of the Fifth Circuit and the Texas courts. The Fifth Circuit has
recognized that a court reporter’s excessive delay in preparing the appellate record may deny due
process when the delay substantially retards the process of a criminal defendant’s appeal. See
Rheuark, 628 F.2d at 302-303. However, not every delay, even an inordinate one, violates a
convicted defendant’s due process rights. Rheuark, 628 F.2d at 302-303.
In determining whether an appellate delay constitutes a violation of due process, our
9
inquiry is guided by the four speedy-trial factors set out by the Supreme Court in Barker v. Wingo,
407 U.S. 514, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972). See Rheuark, 628 F.2d at 303; United
States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994), cert. denied, 514 U.S. 1097, 115 S. Ct. 1825,
131 L. Ed. 2d 746 (1995). Thus, we consider the length of the delay, the reasons for the delay,
Appellant’s assertion of his right to a speedy appeal, and the prejudice to appellant caused by the
delay. See Bermea, 30 F.3d at 1569; Rheuark, 628 F.2d at 303 n.8; Sparkman, 634 S.W.2d at 84.
The prejudice prong has been identified as the most important factor of the test. See Bermea, 30
F.3d at 1569; see also United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 498
U.S. 963, 111 S. Ct. 398, 112 L. Ed. 2d 407 (1990). Our prejudice-factor analysis of the appellate
delay focuses on three types of possible prejudice: (1) oppressive incarceration during the
pendency of appeal; (2) the convicted defendant’s anxiety and concern while awaiting the outcome
of the appeal; and (3) impairment of the grounds for appeal or viability of defenses in the event of
reversal and retrial. See Bermea, 30 F.3d at 1569; Rheuark, 628 F.2d at 303 n.8.
The one-year delay of the preparation of the reporter’s record, while undesirable, did not
substantially retard the appellate process in this case and is not so excessive as to weigh in favor of
finding a due-process violation. Bermea, 30 F.3d at 1569 (one and one-half year delay in filing
reporter’s record after convicted defendant filed notice of appeal was not so excessive as to
militate strongly in favor of finding a due-process violation); compare Antoine, 906 F.2d at 1382
(three-year delay, two years of which was attributable to court reporter’s unwillingness or inability
to produce the trial record after convicted defendant paid for it, favored the convicted defendant).
Moreover, the State recognizes, as do we, that Appellant had no hand in the delay and that
responsibility rests almost exclusively with the trial court’s reporter. Appellant’s appeal was not
10
left to falter, however. Despite the trial court’s “heavy” docket and the court reporter’s health and
medical issues which form the foundation of the delay, this Court, the trial court, and Appellant’s
counsel exercised their respective powers throughout the period of delay to compel production of
the reporter’s record for appeal and, ultimately, it was produced and filed. See TEX. R. APP. P.
35.3(c); Johnson v. State, 151 S.W.3d 193, 196 (Tex.Crim.App. 2004) (identifying those steps
which an appellate court may take to compel a court reporter to prepare and file the record).
Consequently, we do not find that this factor weighs heavily against the State. Cf. Zamorano v.
State, 84 S.W.3d 643, 649 (Tex.Crim.App. 2002). Appellant asserted her desire for a timely
appeal after the court reporter filed her second request for extension of time to file the record and
thereafter pursued the assertion of her right zealously.
A violation of due process cannot be established without a showing of prejudice to
Appellant. Bermea, 30 F.3d at 1569. Although Appellant is ineligible for an appeal bond and
has been incarcerated since her conviction and sentencing, she no longer enjoys a presumption of
innocence and has not demonstrated that her convictions or sentences are improper. Absent a
showing that her incarceration is oppressive or unjustified in light of the outcome of her appeal on
the merits or subsequent retrial, if any, we are unable to find that Appellant has been subjected to
oppressive incarceration pending her appeal. See TEX. CODE CRIM. PROC. ANN. art. 44.04(b)
(West 2006); see also United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006) (because a
convicted defendant is no longer presumed innocent, it cannot be said that his incarceration
pending appeal is oppressive); Antoine, 906 F.2d at 1382 (a determination of whether a convicted
defendant’s “incarceration is unjustified and thus oppressive depends upon the outcome of his
appeal on the merits, or subsequent retrial, if any”). It is within reason to state that a convicted
11
defendant who pursues appellate relief experiences some level of concern and anxiety during the
pendency of the appeal and we have no reason to distinguish Appellant in this regard. In fact,
Appellant does not discuss the anxiety or concern she has experienced other than making a
conclusory statement that she has “suffered immeasurable prejudice.” Although some federal
courts have recognized that the anxiety factor is not particularly useful or compelling for purposes
of due-process analysis, Appellant has neither asserted nor demonstrated that she has suffered a
degree of particularized anxiety and concern which differentiates her case from that of another
appellant. See DeLeon, 444 F.3d at 59; Antoine, 906 F.2d at 1382-83. Nor has Appellant alleged
or demonstrated that the delay of her appellate proceedings has prejudiced any defense that she
may wish to present should the outcome of her appeal on the merits result in a reversal or retrial.
Where an appellant fails to show such prejudice, we are unable to speculate that prejudice or
impairment to her defense exists. Because we are unable to conclude that Appellant has been
prejudiced by the delay in her appellate proceedings, we find the delay did not result in a violation
of Appellant’s due process rights. Issue One is overruled.
ACCOMPLICE-WITNESS EVIDENCE AND LEGAL-SUFFICIENCY ISSUES
In Issues Two, Three, Four, and Five, Appellant challenges the sufficiency of
non-accomplice evidence to corroborate accomplice-witness evidence. In Issue Six, Appellant
complains that the trial court erred when it failed to instruct the jury that certain State’s witnesses
were accomplice witnesses as a matter of law. In her seventh and eighth issues, Appellant asserts
that the evidence was legally insufficient to support her convictions under Counts II and I of the
indictment, respectively.
We first review the elements of the charged offenses. The criminal offense of prostitution
12
occurs when a person knowingly offers to engage, agrees to engage, or engages in sexual conduct
for a fee. TEX. PENAL CODE ANN. § 43.02(a)(1) (West 2011). “Sexual conduct” includes:
(1) deviate sexual intercourse, which includes any contact between the genitals of one person and
the mouth or anus of another person; (2) sexual intercourse, which means any penetration of the
female sex organ by the male sex organ; and (3) sexual contact, which 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(1), (3), (4), (5) (West 2011).
Consequently, when a person engages in any form of activity defined as “sexual contact” for a fee,
he or she has committed the offense of prostitution. TEX. PENAL CODE ANN. § 43.01(3), §
43.02(a)(1) (West 2011). “Sexual contact” need not be flesh-on-flesh but may occur despite the
existence of a cloth or other barrier which prevents or impedes flesh-on-flesh contact. See
Steinbach v. State, 979 S.W.2d 836, 838-40 (Tex.App.–Austin 1998, pet. ref’d) (internal citations
omitted). A person commits the offense of aggravated promotion of prostitution if she knowingly
owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two
or more prostitutes. TEX. PENAL CODE ANN. § 43.04(a) (West 2011). In interpreting this
language, the Texas Court of Criminal Appeals has defined “prostitution enterprise” as “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 . . . .” Taylor v. State, 548 S.W.2d 723, 723 (Tex.Crim.App.
1977). Aggravated promotion of prostitution is the offense alleged in Count I and is the predicate
offense in Count II of Appellant’s indictment.
A person who employs or authorizes a child to work in any place of business permitting,
requesting, or requiring the child to work nude or topless commits the offense of employment
13
harmful to children. TEX. PENAL CODE ANN. § 43.251(b)(2) (West 2011). For purposes of
Section 43.251 of the Texas Penal Code, “child” means a person who is younger than 18 years of
age. TEX. PENAL CODE ANN. § 43.251(a)(1) (West 2011). Employment harmful to children
is the predicate offense alleged in Counts III and IV of Appellant’s indictment.
A person commits the offense of engaging in organized criminal activity if, with intent to
establish, maintain, or participate in a combination or in the profits of a combination, she commits
aggravated promotion of prostitution (Count II) or employment harmful to children (Counts III
and IV). TEX. PENAL CODE ANN. § 71.02(a)(3) & (7) (West 2011). A “‘combination’ means
three or more persons who collaborate in carrying on criminal activities[.]” TEX. PENAL
CODE ANN. § 71.01(a) (West 2011). Engaging in organized criminal activity is the offense
alleged in Counts II, III, and IV of Appellant’s indictment.
The mental-state requirement of the offense of engaging in organized criminal activity
consists of two parts. Hart v. State, 89 S.W.3d 61, 63 (Tex.Crim.App. 2002). The first part
requires the State to prove the defendant had the requisite culpable mental state to commit the
predicate offense. TEX. PENAL CODE ANN. § 71.02 (West 2011); Hart, 89 S.W.3d at 63.
The second part requires that the State prove that the defendant committed the predicate offense
with the intent to establish, maintain, participate in, or participate in the profits of a combination
and that the members of the combination intended to work together in a continuing course of
criminal activity. TEX. PENAL CODE ANN. § 71.02 (West 2011); Hart, 89 S.W.3d at 63;
Dowdle v. State, 11 S.W.3d 233, 236 (Tex.Crim.App. 2000). This requires some evidence of an
agreement to act together in a continuing course of criminal activity. See Renteria v. State, 199
S.W.3d 499, 504 (Tex.App.–Houston [1st Dist.] 2006, pet. ref’d); Pardue v. State, 252 S.W.3d
14
690, 700 (Tex.App.--Texarkana 2008, no pet.).
Circumstantial evidence may be and is often used to prove a person’s intent or knowledge
as direct evidence of the same may be scarce. See, e.g., Pardue, 252 S.W.3d at 702. Thus,
circumstantial evidence may be used to prove, and a jury may infer from the surrounding facts and
circumstances, as here: (1) in support of a finding that she committed the predicate offense of
aggravated promotion of prostitution, Appellant’s knowledge that prostitution was occurring at the
Naked Harem; (2) in support of a finding that she committed the predicate offense of employment
harmful to children, Appellant’s knowledge that Pinedo and Gurrola were 15-year-old dancers
employed to dance topless or nude in the Naked Harem; (3) Appellant’s intent to participate in a
combination; and (4) the agreement of the combination members to act together in carrying out
criminal activities. See Hart, 89 S.W.3d at 64; Armentrout v. State, 645 S.W.2d 298, 301
(Tex.Crim.App. 1983); Pardue, 252 S.W.3d at 701-02; Ledet v. State, 177 S.W.3d at 213, 218-19
(Tex.App.–Houston [1st Dist.] 2005, pet. ref’d); Munoz v. State, 29 S.W.3d 205, 209
(Tex.App.—Amarillo 2000, no pet.).
A conviction may not be had upon the testimony of an accomplice unless that testimony is
corroborated by other non-accomplice witness evidence that tends to connect the defendant to the
crime. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). “An accomplice is someone
who participates with the defendant before, during, or after the commission of a crime and acts
with the required culpable mental state.” Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App.),
cert. denied, 552 U.S. 1028, 128 S. Ct. 627, 169 L. Ed. 2d 404 (2007); see also Paredes v. State, 129
S.W.3d 530, 536 (Tex.Crim.App. 2004). This participation must include an affirmative act in
promotion of the commission of the offense with which the defendant is charged. See Druery,
15
225 S.W.3d at 498; Paredes, 129 S.W.3d at 536. A witness is not an accomplice as a matter of
law merely because the witness knew of the offense and did not disclose it, or even if the witness
concealed the offense. See Druery, 225 S.W.3d at 498.
When the evidence is clear and shows that there is no doubt that a witness is an accomplice
as a matter of law, the trial court is required to instruct the jury accordingly. Smith, 332 S.W.3d at
439. “A witness who is indicted for the same offense or a lesser-included offense as the accused
is an accomplice as a matter of law.” Smith v. State, 332 S.W.3d 425, 439 (Tex.Crim.App. 2011).
Thus, if the participant witness has been charged with the offense or with a lesser-included offense,
the trial court should instruct the jury that the witness is an accomplice as a matter of law. Druery,
225 S.W.3d at 498. When the evidence is conflicting regarding a witness’s status as an
accomplice, the trial court may instruct the jury to determine the witness’s status as a fact issue.
Smith, 332 S.W.3d at 439-40. When the evidence is clear and shows that a witness is not an
accomplice, the trial court is not required to provide an accomplice-witness instruction. Smith,
332 S.W.3d at 440.
An immunity agreement is directly relevant to determining whether a witness is an
accomplice as a matter of law. Jones v. State, 195 S.W.3d 279, 290 n.12 (Tex.App.–Fort Worth
2006), aff’d, 235 S.W.3d 783 (Tex.Crim.App. 2007). However, the grant of transactional
immunity to a witness does not automatically render the witness an accomplice as a matter of law.
See Moulton v. State, 508 S.W.2d 833, 836 (Tex.Crim.App. 1974); Jester v. State, 62 S.W.3d 851,
855 (Tex.App.–Texarkana 2001, pet ref’d); Jarnigan v. State, 57 S.W.3d 76, 91 (Tex.App.–
Houston [14th Dist.] 2001, pet ref’d).
Jury Charge Error
16
We commence our analysis by examining Issue Six relating to the alleged jury-charge
error. It is undisputed that Richard Hamm and Jacob Crum were clearly accomplices as a matter
of law. The issues to be resolved are whether the patron witnesses, dancer witnesses (other than
Gurrola), and Cisneros were accomplices as a matter of law and whether the trial court was
required to instruct the jury that they were accomplices as a matter of law. Appellant contends
that all of these witnesses were accomplices as a matter of law to the charged offenses.
We first determine whether a witness was an accomplice to the distinct offenses alleged in
each count of Appellant’s indictment. A conviction for aggravated promotion of prostitution as
alleged in Count I may be had upon the uncorroborated testimony of a party to the offense. TEX.
PENAL CODE ANN. § 43.06(d) (West 2011); Taylor, 548 S.W.2d at 723. Consequently,
Appellant cannot show that the trial court erred by failing to include accomplice-witness
instructions regarding any witness as to Count I. In fact, the trial court erred by failing to exclude
Count I from the accomplice-witness instruction submitted regarding Hamm and Crum. This
portion of Appellant’s sixth issue is overruled.
Although Cisneros was aware of prostitution activities occurring within the private rooms
at the Naked Harem, had informed Appellant and Woodall that prostitution was occurring within
the private rooms, and surreptitiously recorded the prostitution activities, there is no evidence that
Cisneros encouraged prostitution. Nor does the record show or suggest that Cisneros knew that
Gurrola was dancing at the Naked Harem or was underage. Moreover, Hamm’s destruction of a
video showing Pinedo dancing at the club did not render Cisneros an accomplice as a matter of law
to Appellant’s unlawful hiring of Pinedo to dance topless and nude at the club. See Druery, 225
S.W.3d at 498 (a witness is not an accomplice as a matter of law simply because he knew of the
17
offense and did not disclose it, or even if he concealed it). As a result, Appellant has failed to
show that Cisneros was susceptible to prosecution for any of the offenses for which Appellant was
charged or that Cisneros in any way promoted, assisted, or had any specific intent to aid Appellant
in the commission of those offenses. That Cisneros was granted transactional immunity from
prosecution for a different offense than that with which Appellant was charged does not transform
him into an accomplice witness. See Moulton, 508 S.W.2d at 836; Jester, 62 S.W.3d at 855;
Jarnigan, 57 S.W.3d at 91. Consequently, Cisneros was not an accomplice witness as a matter of
law to Counts II, III, and IV. See Druery, 225 S.W.3d at 498. In fact, because Cisneros was not
an accomplice as a matter of law, his testimony could be used to corroborate Hamm’s and Crum’s
accomplice-witness testimony as to these counts. TEX. CODE CRIM. PROC. ANN. art. 38.14
(West 2005). Appellant has failed to show that Cisneros was an accomplice as a matter of law to
any of the offenses for which she was charged and, as a result, has failed to show that the trial court
committed error when it did not instruct the jury that Cisneros was an accomplice witness as to
Counts II, III, and IV. We overrule these portions of Issue Six.
The underage-dancer witnesses identified in Count III (Pinedo) and Count IV (Gurrola) of
Appellant’s indictment were not susceptible to prosecution for employment harmful to children
and cannot be considered accomplices to Appellant’s commission of those offenses. The clear
intent of Texas Penal Code, section 43.251, which comprises the employment-harmful-to-children
statute, is to prevent the exploitation of children under the age of 18 years in the
adult-entertainment industry. TEX. PENAL CODE ANN. § 43.251 (West 2011). Section
43.251 implicitly mandates that a child’s “consent” to employment in a sexually-oriented
commercial activity or in any place of business permitting, requesting, or requiring a child to work
18
nude or topless is no defense to prosecution thereunder, as the child’s consent to such employment
is not legally operative. Cf. Scoggan v. State, 799 S.W.2d 679, 681 (Tex.Crim.App. 1990);
Tyrone v. State, 854 S.W.2d 153, 155-56 (Tex.App.–Fort Worth 1993, pet. ref’d) (cases explaining
that a child may not provide legally-operative consent to sexual intercourse; because the child may
never be an accomplice to the rape of the child, the child-victim’s uncorroborated testimony can
support a defendant’s conviction for statutory rape). Pinedo and Gurrola cannot be accomplices
under section 43.251. In fact, their testimony could be used to corroborate Hamm’s and Crum’s
accomplice-witness testimony as to Counts III and IV, respectively. Thus, the trial court did not
err when it failed to instruct the jury that Pinedo and Gurrola were accomplices as a matter of law
as to Counts III and IV, respectively. We overrule this portion of Issue Six.
Although other non-underage dancers and club patrons who testified at trial acknowledged
engaging in acts of prostitution at the Naked Harem, there is no evidence that such prostitution
involved either Pinedo or Gurrola, and none of the testimony from those witnesses suggested that
they aided, encouraged, or promoted Appellant’s hiring or allowing Pinedo or Gurrola to work at
the Naked Harem. No evidence suggested that any of the testifying non-underage dancer- or
patron-witnesses were susceptible to prosecution for the offenses of employment harmful to
children or engaging in organized criminal activity by employment harmful to children. Because
Appellant has failed to show that any of these witnesses were accomplices as a matter of law as to
Counts III and IV respectively, we overrule this portion of Issue Six.
The State agrees that the dancer- and patron-witnesses were susceptible to prosecution for
prostitution but does not concede that prostitution is a lesser-included offense of the offenses of
aggravated promotion of prostitution and engaging in organized criminal activity by aggravated
19
promotion of prostitution (Count II). The State does agree, however, that if the dancers and
patrons were accomplices as a matter of law, the trial court erred when it failed to instruct the jury
regarding Count II, which charged Appellant with engaging in organized criminal activity by
aggravated promotion of prostitution. In conducting a harm analysis of a failure to properly
provide an accomplice-witness instruction, the Texas Court of Criminal Appeals has instructed
that we are to consider the purpose and intended effect of article 38.14. TEX. CODE CRIM.
PROC. ANN. art. 38.14 (West 2005); see Herron v. State, 86 S.W.3d 621, 631-32 (Tex.Crim.App.
2002) (the instruction merely informs the jury that accomplice-witness testimony cannot be used
absent non-accomplice evidence connecting defendant to the offense, and once it is determined
that non-accomplice evidence exists, the instruction’s purpose is fulfilled; non-accomplice
evidence can render a trial court’s failure to instruct harmless by fulfilling the purpose the
instruction is designed to serve.); see also Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App.
2006), cert. denied, 549 U.S. 1287, 127 S. Ct. 1832, 167 L. Ed. 2d 332 (2007). Because Appellant
failed to object to the trial court’s charge or to request any accomplice-witness-as-a-matter-of-law
instruction, she must show egregious harm. See Herron, 86 S.W.3d at 631-34. Under the
egregious harm standard, the omission of an accomplice-witness instruction is generally harmless
unless the corroborating non-accomplice evidence is “so unconvincing in fact as to render the
State’s overall case for conviction clearly and significantly less persuasive.” See Herron, 86
S.W.3d at 632, quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991).
When we review the sufficiency of corroborating evidence under article 38.14, we must
eliminate from consideration any testimony by an accomplice witness and then examine the
remaining evidence to determine whether there is any evidence that tends to connect the defendant
20
to the commission of the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14; see Malone v.
State, 253 S.W.3d 253, 257 (Tex.Crim.App. 2008). The non-accomplice evidence need not
corroborate the accomplice testimony as to every element of the charged offense. See Joubert v.
State, 235 S.W.3d 729, 731 (Tex.Crim.App. 2007) (no requirement that non-accomplice evidence
corroborate defendant’s connection to a specific element that elevates an offense from murder to
capital murder). Nor must the corroborating evidence by itself prove the defendant’s guilt beyond
a reasonable doubt. Malone, 253 S.W.3d at 257. Rather, all that is required is that some
non-accomplice corroborating evidence links the accused in some way to the offense and shows
that “rational jurors could conclude that this evidence sufficiently tended to connect [the accused]
to the offense.” See Malone, 253 S.W.3d at 257, quoting Hernandez v. State, 939 S.W.2d 173,
179 (Tex.Crim.App. 1997). In determining the sufficiency of the corroborating evidence, we
view the non-accomplice testimony in a light most favorable to the verdict. Hernandez, 939
S.W.2d at 179.
The testimony of Hamm, Crum, the dancers, and the patrons is sufficient to establish that
the Naked Harem was a “prostitution enterprise.” TEX. PENAL CODE ANN. § 43.04(a) (West
2011); Taylor, 548 S.W.2d at 723. We also find that the corroborating non-accomplice evidence
is sufficient to show that Appellant owned, invested in, financed, controlled, supervised, or
managed the prostitution enterprise at the Naked Harem.
In a television interview, Appellant acknowledged owning and operating the Naked Harem
along with Woodall and stated that she would do anything to see that the Naked Harem made
money. In her deposition, Appellant acknowledged that she and Woodall had personally hired an
underage dancer, Pinedo, to work at the Naked Harem. Ledgers detailing the Naked Harem’s
21
revenues were found in the trash at Appellant’s and Woodall’s residence and a police department
financial analyst testified that the Naked Harem had processed more than $850,000 in credit-card
purchases (excluding cash transactions) at the club between 2001 and 2003. The physical
evidence at the Naked Harem, including the video showing Appellant watching dancers perform a
sex show on the main stage of the club, the numerous used condoms and condom wrappers found
in the private rooms of the club, and the traps that were installed to filter the flushed condoms from
the club’s sewer lines suggest that Appellant, as an owner and operator of the Naked Harem was
aware of the illicit sexual activity occurring there. Cisneros’ testimony showed that Appellant
and Woodall, if they did not already know, were informed that sex acts were occurring in the
Naked Harem, that Appellant was aware of the condoms in the private rooms and of the other
objective indicators of prostitution in the club, and that after a police raid, Appellant observed
Hamm destroy a video recording of 15-year-old Pinedo dancing on stage at the club. By camera,
Appellant monitored activities at the Naked Harem from her office and home and recorded the
club’s telephones to monitor whether the employees were communicating with police but directed
Cisneros not to install cameras in the private rooms to prevent the blackmailing of the patrons who
used those rooms.
From this evidence, the jury could have inferred that Appellant was actually aware of and
permitted the prostitution to occur at the Naked Harem. When viewed in the light most favorable
to the verdict, this non-accomplice evidence tended to connect Appellant to the prostitution
enterprise within the Naked Harem in that it tended to show that she owned, invested in, financed,
supervised, or managed the Naked Harem where the prostitution was occurring. See Pardue, 252
S.W.3d at 701-04 (non-accomplice evidence that the accused managed and operated a game room
22
where illegal gambling activities occurred and gave instructions to game-room employees was
sufficient to corroborate accomplice-witness testimony describing the illegal activities); see also
Williams v. State, 47 S.W.3d 626, 631 (Tex.App.–Waco 2001, pet. ref’d) (accused’s out-of-court
statements can be a source of non-accomplice evidence); Medina v. State, 7 S.W.3d 633, 642-43
(Tex.Crim.App. 1999), cert. denied, 529 U.S. 1102, 120 S. Ct. 1840, 146 L. Ed. 2d 782 (2000)
(accused’s veiled admissions sufficient to connect accused to offense). In light of the
corroborating non-accomplice evidence tending to connect Appellant to these offenses, the trial
court’s error in failing to properly instruct the jury on the accomplice-witness rule was harmless as
to Count II. See Herron, 86 S.W.3d at 631-34; Medina, 7 S.W.3d at 641-43; Williams, 47 S.W.3d
at 631-32. This portion of Issue Six is overruled.
As to Counts III and IV, wherein Appellant was charged with engaging in organized
criminal activity by employment harmful to children, the non-accomplice corroborating testimony
of Pinedo and Gurrola that each was underage and dancing nude and topless at the Naked Harem is
sufficient to corroborate the testimony of Hamm and Crum. Hamm’s and Crum’s accomplice
testimony was sufficient to establish that Appellant had committed the offense of employment
harmful to children. TEX. PENAL CODE ANN. § 43.251(b)(2) (West 2011). The
non-accomplice evidence showed that Appellant encouraged underage Gurrola to continue
dancing at the Naked Harem because Gurrola was going to make a lot of money. Appellant also
admitted hiring Pinedo and was present during the destruction of the video which showed
Appellant watching Pinedo working at the Naked Harem. This non-accomplice evidence, when
combined with the other non-accomplice evidence connecting Appellant to the ownership,
operation, supervision, and management of the Naked Harem, tended to connect Appellant to the
23
offenses set forth in Counts III and IV. See Medina, 7 S.W.3d at 642-43; Williams, 47 S.W.3d at
631; see also Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004) (an attempt to conceal
incriminating evidence is probative of wrongful conduct and is a circumstance of guilt).
Because the non-accomplice evidence was ample and more than sufficient to connect
Appellant to all of the charged offenses in Counts I through IV, the trial court’s error in failing to
instruct the jury that any of the complained-of witnesses were accomplices to a particular offense
was harmless. We overrule Issue Six in its entirety.
Sufficiency of the Corroborating Evidence
We next address Issues Two, Three, Four, and Five, in which Appellant complains that the
non-accomplice evidence was insufficient to corroborate the testimony of Cisneros and the State’s
dancer- and patron-witnesses as to each respective count in the indictment.
Appellant’s second issue challenges the sufficiency of the non-accomplice evidence to
corroborate the accomplice-witness testimony regarding Count I. Again, because a conviction
for aggravated promotion of prostitution as charged in Count I may be supported by the
uncorroborated testimony of a party to the offense, Appellant’s second issue is overruled. TEX.
PENAL CODE ANN. § 43.06(d) (West 2011); Taylor, 548 S.W.2d at 723-24.
Issues Three, Four, and Five raise the same sufficiency of non-accomplice evidence
challenges regarding Counts II, III, and IV, respectively, as raised in Issue Two. As we addressed
in Issue Six, Appellant’s own statements and testimony, the testimony of Pinedo, Gurrola, and
Cisneros, and the physical evidence presented at trial, showed her ownership and involvement in
and at the Naked Harem, which was shown to be a prostitution enterprise, and tended to connect
Appellant to each of the charged offenses in Counts II, III, and IV. The jury’s implicit rejection of
24
Appellant’s defensive postures of plausible deniability and ignorance was reasonable in light of
the sufficient non-accomplice-witness evidence which permitted the jury to reasonably infer and
conclude that Appellant knew of the prostitution activity and intended to work together with
co-owner Woodall and the Naked Harem’s managers to promote the prostitution activities and the
employment of underage topless and nude dancers, Pinedo and Gurrola. Issues Three, Four, and
Five are overruled.
Legal-Sufficiency Challenge
Issues Seven and Eight challenge the legal sufficiency of the evidence to support
Appellant’s convictions for engaging in organized criminal activity by aggravated promotion of
prostitution (Count II) and aggravated promotion of prostitution (Count I), respectively. We
review the legal sufficiency of the evidence to support a conviction in the light most favorable to
the verdict, and reverse the conviction only if no rational trier of fact could have found that the
State had met its burden of proving each element of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
As we have determined that the non-accomplice witness evidence was sufficient to connect
Appellant to the offenses alleged in Counts I and II of the indictment, we review all of the
evidence, including the accomplice-witness testimony of Hamm and Crum and the
non-accomplice witnesses, to determine the sufficiency of the evidence to support Appellant’s
convictions for Counts I and II.
That evidence, including Cisneros’ surreptitiously recorded video, demonstrated that
numerous dancers were performing acts of prostitution in the private rooms at the Naked Harem,
and that the Naked Harem constituted a prostitution enterprise. Appellant and Woodall owned
25
and operated the prostitution enterprise and, although they denied to Cisneros that prostitution was
occurring, the collective evidence showed that Appellant knew and had been told about the
prostitution, that Appellant viewed prostitution occurring firsthand between Crum and the two
dancers whom he paid to have sex, that specific discussions occurred between Appellant, Woodall,
Crum, and Hamm about prostitution and sex occurring in the private rooms, and that Appellant and
Woodall had established the “whole process” for prostitution to occur within the Naked Harem.
Evidence similar to the quality and quantity present in this record has been held sufficient to
support the convictions of owner-operators of adult entertainment business for aggravated
promotion of prostitution. See, e.g., Armentrout, 645 S.W.2d at 299-302; Ringer v. State, 577
S.W.2d 711, 713-16 (Tex.Crim.App. 1979); Taylor, 548 S.W.2d at 723-25; Smithwick v. State,
762 S.W.2d 232, 233-34 (Tex.App.—Austin 1988, pet. ref’d); Brownwell v. State, 644 S.W.2d
862, 863-65 (Tex.App.—Tyler 1982, no pet.). We find the evidence is sufficient to permit a jury
to infer that Appellant was in the business of promoting prostitution.
With regard to the requirement that the State prove that Appellant committed the predicate
offense with the intent to participate in a combination with Woodall and the managers of the
Naked Harem, the quality and quantity of the evidence in the record before us has likewise been
held sufficient to prove the combination element of the engaging statute. See Pardue, 252
S.W.3d at 699-704. Evidence that a defendant was the leader of an organization that functioned
as the alleged combination and was involved in planning the organization’s activities is sufficient
to prove that the defendant encouraged, directed, aided, or attempted to aid in the commission of
the predicate offense of the combination and is sufficient to support a conviction for engaging in
organized criminal activity. See Otto v. State, 95 S.W.3d 282, 284-85 (Tex.Crim.App. 2003).
26
While Appellant emphasizes that there was no evidence of a formal agreement between Appellant,
her co-owner Woodall, and managers Hamm, Crum, Zepeda, and Brooks to run a prostitution
enterprise, circumstantial evidence may be used to prove the state of mind required to support
Appellant’s conviction. See Munoz, 29 S.W.3d at 209. Such circumstantial evidence may also
be used to prove the existence of an agreement to work together in continuing criminal activities.
See Munoz, 29 S.W.3d at 209; Hart, 89 S.W.3d at 64.
Sufficient circumstantial evidence showed that prostitution was occurring at the Naked
Harem when Appellant, Woodall, Crum, Hamm, Zepeda, and Brooks were managing and
operating the club. From all of the direct and circumstantial evidence of Appellant’s knowledge
of, and together with the named combination members, promotion of prostitution at the Naked
Harem, the jury was rationally justified in rejecting Appellant’s claims of ignorance that
prostitution was occurring at the club and was not required to accept Appellant’s defense. See
Agripino v. State, 217 S.W.3d 707, 716 (Tex.App.–El Paso 2007, no pet.).
Viewed in a light most favorable to the verdict, we find it was reasonable for the jury to
have found beyond a reasonable doubt that Appellant was engaged in the aggravated promotion of
prostitution and that Appellant agreed to work in conjunction with Woodall, Crum, Hamm,
Zepeda, and Brooks as set forth in the indictment to run a prostitution enterprise. Issues Seven
and Eight are overruled.
ALLEGED TRIAL COURT ERROR
Admission of Video Evidence
In Issue Nine, Appellant contends the trial court committed harmful error when it allowed
the State to introduce Cisneros’ silent video recordings of sexual acts occurring between dancers
27
and patrons in a private room at the Naked Harem. Appellant specifically contends that she did
not “open the door” to the introduction of the video recordings, that the recordings were not
relevant and were unfairly prejudicial, and that admission of the video recordings was harmful.
During or prior to her first trial (which resulted in a mistrial), Appellant had filed a “motion
in limine” asking that the State approach the bench before mentioning or offering into evidence the
surreptitious video recordings of sexual acts occurring at the Naked Harem.5
At a pretrial hearing held in advance of Appellant’s retrial, the trial court noted that it was
granting Appellant’s motion to suppress “the electrician video.” At a subsequent pretrial hearing,
the State indicated its intent to file a motion seeking the trial court’s reconsideration of its ruling
based on an alleged absence of privacy interest by Appellant in the private rooms of the Naked
Harem that were open to the public, but no such motion was filed.
During Appellant’s opening statement at the second trial, defense counsel proffered that if
acts of prostitution were occurring in the Naked Harem, the dancers were receiving the money
directly and Appellant and the club did not enjoy the profits of the prostitution activity. On
cross-examination, after Hamm had testified on direct examination about the sexual activity in the
private rooms at the Naked Harem as well as Appellant’s awareness and knowledge thereof,
defense counsel elicited testimony from Hamm that when a patron purchased a two-song dance in
a private room, sex was not guaranteed, that the dancers could negotiate additional pricing for sex,
and that the club’s cut of the two-song minimum fee provided access to the private room. Hamm
also testified that Appellant had informed him that the club’s attorney had said “that a patron could
5
At the same time, Coutta filed a motion to suppress video and audio recordings seized by law enforcement. The
video recording at issue was not seized by law enforcement but was provided directly by Cisneros to the State.
Therefore, no Fourth Amendment issue is presented and Appellant’s suppression motion is inapplicable to our
consideration and analysis of Appellant’s ninth issue.
28
masturbate as long as a dancer wasn’t being touched.” Defense counsel attempted to elicit
testimony from Hamm that the dancers would not be having sex for only $80 of their portion of the
private dance fee and that some additional negotiation between the dancer and patron would have
occurred when the trial court sustained the State’s speculation objection:
Defense Counsel: I mean, what I’m saying is, if there’s 130 or $40.00 [sic]
involved, and they’re going to get 80 –
. . .
--it would seem that there would be some negotiation
between them, would it not?
The State: Object to speculation, Your Honor.
The Court: Sustained.
The State contended that Appellant had “opened the door” to allow the admission of
Cisneros’ video recordings of sex acts that occurred in one of the Naked Harem’s private rooms
into evidence to rebut counsel’s implications that the dancers were negotiating and charging extra
for sex in the private rooms. Defense counsel countered that because the recordings were silent,
it was impossible to determine whether negotiations or payment occurred before or after the
dancer and patron entered the private room. The trial court stated that it was inclined to believe
that if the video recordings showed no exchange of money, the video records would be relevant to
rebut defense counsel’s suggestions that the dancers were negotiating additional money for sex,
and the court further noted that while the video recordings may fall short of conclusively proving
that no further negotiation or exchange of money occurred, absolute proof was unnecessary before
the recorded evidence would be relevant in proving the fact.
Defense counsel again raised the possibility that dancers were negotiating extra fees for sex
when cross-examining Crum, who testified that he assumed that the dancers and patrons were
29
always having sex in the private rooms, that because he wasn’t present in the private rooms, he
could not be certain that every encounter resulted in sex, and agreed that some customers
complained that they did not get what they expected. Crum also testified that upon cleaning the
private rooms, he could tell that the condoms had been used but did not know if the condoms
containing semen resulted from sexual contact or from masturbation. Crum explained under
cross-examination that Woodall had informed him that a patron could legally masturbate in a
private room as long as he was not touching the dancer.
Cisneros testified on direct examination that Appellant and Woodall had asked him to
install cameras in all areas of the club except the private rooms and also asked Cisneros to check
for hidden cameras in the private rooms that Appellant and Woodall believed police may have
installed. Without objection, Cisneros also testified that he had installed a camera in one of the
private rooms without being requested to do so by Appellant and Woodall and had made video
recordings of activity occurring between dancers and patrons in that room between April 12 and
April 16, 2001, as well as other times.
Defense counsel objected when the State offered the Cisneros video recordings into
evidence, arguing that the trial court had already ruled the recordings were inadmissible, and that
he had not opened the door to admission of the silent recordings through the eliciting of
cross-examination testimony about “negotiations” and used condoms. The trial court overruled
defense counsel’s objections, noting that the “negotiation issue, the condom issue and whether or
not sex was the norm . . . are three issues that . . . I think opened the door.” The video was
admitted into evidence and Cisneros testified that the video showed the dancers and patrons having
sex in the private room.
30
We do not disturb a trial court’s decision to admit evidence absent an abuse of discretion.
See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008); Winegarner v. State 235
S.W.3d 787, 790 (Tex.Crim.App. 2007); Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.
2002); Flores v. State, 299 S.W.3d 843, 856 (Tex.App.–El Paso 2009, pet. ref’d). When the trial
court’s ruling is within the zone of reasonable disagreement, is reasonably supported by the record,
and is correct under any theory of law applicable to the case, it must be upheld. State v. White,
306 S.W.3d 753, 757 n.10 (Tex.Crim.App. 2010); Ramos, 245 S.W.3d at 418; Torres, 71 S.W.3d
at 760; Flores, 299 S.W.3d at 856. This is true even when the trial court gives the wrong reason
for its decision. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).
Evidence that is otherwise inadmissible may become admissible if a party “opens the door”
to such evidence. Williams v. State, 301 S.W.3d 675, 687 (Tex.Crim.App. 2009), cert. denied,
___ U.S. ___, 130 S. Ct. 3411, 177 L. Ed. 2d 326 (2010). Appellant opened the door to the
admission of Cisneros’ video by her opening statement, in which she proffered a defensive theory
that if the dancers were committing prostitution, Appellant and the Naked Harem did not realize
profits from that activity because the dancers were receiving the money directly from the patrons.
See Bass v. State, 270 S.W.3d 557, 563 (Tex.Crim.App. 2008) (defendant’s opening statement
may open the door to otherwise inadmissible evidence to rebut a defensive theory presented in that
opening statement); see also Gaytan v. State, 331 S.W.3d 218, 225 (Tex.App.–Austin 2011, pet.
ref’d) (if opening statement presents a defensive theory, it opens the door to rebuttal evidence).
The video recordings show that no exchange of money occurred between the dancers and patrons
in the private room in addition to the patron’s up-front payment of the fee to the club to gain
admission to the private room, and was directly relevant in rebutting Appellant’s defensive theory
31
proffered during her opening statement. See also Stewart v. State, 129 S.W.3d 93, 96
(Tex.Crim.App. 2004) (evidence need only provide small nudge toward proving or disproving a
fact).
Appellant also opened the door to the admission of Cisneros’ video recordings through her
cross-examination of the State’s witnesses by suggesting that the dancers were negotiating their
own price for sex in the private room in addition to the Naked Harem’s fee for the “private dance,”
and by suggesting that the used condoms and semen in the private room were the result of patrons
masturbating in the private room. See Wells v. State, 319 S.W.3d 82, 94 (Tex.App.–San Antonio
2010, pet. ref’d); Houston v. State, 208 S.W.3d 585, 591 (Tex.App.–Austin 2006, no pet.) (defense
counsel’s cross-examination of a State’s witness that leaves a false impression as to some fact may
open the door to admission of otherwise inadmissible evidence to correct the false impression).
Appellant’s cross-examination created the impression that sex was not the norm when a dancer
and a patron entered a private room, that any dancers who were committing acts of prostitution
were negotiating and charging extra fees for the activity, and that used condoms and semen that
were present in the private rooms were the result of patrons masturbating. Such implications
authorized the State to reply by seeking the admission of Cisneros’ video recordings which
showed no exchange of money between the dancers and patrons in the private room either before,
during, or after they had sex, rather than patrons merely masturbating. Appellant’s
cross-examination of the State’s witnesses also elicited speculation about what may have been
occurring within the private rooms and opened the door to admit the video recordings for the
purpose of showing exactly what was happening between dancers and patrons therein. See
Cameron v. State, 988 S.W.2d 835, 847 (Tex.App.–San Antonio 1999, pet. ref’d) (defendant’s
32
testimony regarding events regarding car bombing opened the door to admission of video
recording showing the car bombing, even though the trial court had previously ruled the recording
to be inadmissible). Consequently, Appellant has failed to show that the trial court erred or
abused its discretion by determining that she opened the door to the admission of the Cisneros
video recordings.
We disagree with Appellant’s contention that the video recordings showing sex acts
between dancers and patrons were not relevant. Evidence is relevant if it tends to make the
existence of any consequential fact more or less probable than it is without the evidence. TEX. R.
EVID. 401; Goldberg v. State, 95 S.W.3d 345, 366 (Tex.App.–Houston [1st Dist.] 2002, pet.
ref’d), cert. denied, 540 U.S. 1190, 124 S. Ct. 1436, 158 L. Ed. 2d 99 (2004). To be relevant in
proving a fact, evidence need not prove the fact but it is sufficient if the evidence provides a small
nudge toward proving or disproving some fact of consequence. Kirsch v. State, 306 S.W.3d 738,
743 (Tex.Crim.App. 2010), citing Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App. 2004).
The video alone need not show that the Naked Harem was a prostitution enterprise before it
could be found relevant. See Stewart, 129 S.W.3d at 96. Hamm and Crum each testified that
dancers and patrons were not permitted to enter private rooms until the patron had paid the
required fee. The video recordings about which Appellant complains show, as Cisneros
described, dancers and patrons having sex in the private room. The video thus tended to show
that the Naked Harem was a prostitution enterprise and was relevant to the charged offenses. See
TEX. R. EVID. 401; TEX. PENAL CODE ANN. 43.04(a) (West 2011).
Appellant attempts to argue on appeal that probative value of the video recordings were
substantially outweighed by a danger of unfair prejudice under Rule 403. TEX. R. EVID. 403.
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Appellant raised a Rule 403 objection in her motion in limine in her first trial but sought only to
have the State approach the bench before mentioning or offering the video recordings in this trial.
A motion in limine is a preliminary matter which does not preserve any complaints for appellate
review and, to preserve such complaint, a party must object at the time the complained-of evidence
is offered at trial. TEX. R. APP. P. 33.1(a); see Fuller v. State, 253 S.W.3d 220, 232-33
(Tex.Crim.App. 2008), cert. denied, 555 U.S. 1105, 129 S. Ct. 904, 173 L. Ed. 2d 120 (2009).
Neither when addressing the trial court about whether Appellant had opened the door to admission
of the Cisneros video recordings nor when the State offered the video recordings into evidence did
Appellant make any timely or specific Rule 403 or unfair-prejudice objections or obtain any
rulings thereon from the trial court. TEX. R. APP. P. 33.1(a); Swain v. State, 181 S.W.3d 359,
365 (Tex.Crim.App. 2005), cert. denied, 549 U.S. 861, 127 S. Ct. 145, 166 L. Ed. 2d 106 (2006).
Thus, Appellant has failed to preserve this complaint for our review. Moreover, because we find
the trial court neither erred nor abused its discretion in admitting the Cisneros video recordings
into evidence, we need not conduct a harm analysis. Issue Nine is overruled.
Exclusion of Testimony
In Issue Ten, Appellant complains that the trial court erred by excluding the testimony of
Michael Gibson. We disagree.
During defense counsel’s cross-examination, Hamm testified, without objection, that
Appellant had informed him that the attorney for the club had advised that a patron could legally
masturbate in a private room if there was no contact between the patron and the dancer. Over the
State’s objection, defense counsel elicited essentially the same testimony from Crum. Crum later
testified on re-direct examination by the State that, in his opinion, condoms were used for sex and
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not for masturbation.
Before the defense rested, and outside the presence of the jury, Appellant proffered the
testimony of attorney Gibson, who testified that he had advised Appellant and Woodall that if a
patron masturbated in a private room at the Naked Harem during a private dance, the offense of
public lewdness would not have been committed “as long as it was not done for commercial pay.”
Defense counsel then sought to call Gibson “for the masturbation issue, what he had advised
them,” but proffered no theory of the relevance of such testimony. Defense counsel did not
respond to the trial court’s inquiry about how Gibson’s “masturbation” testimony was relevant to
the charge of prostitution, and the trial court sustained the State’s relevancy objection to Gibson’s
testimony.
On appeal, Appellant contends that Gibson’s testimony was relevant because it would have
tended to provide a legitimate reason or explanation for the presence of the condom machine at the
Naked Harem as well as to why the discovery of used condoms in the private rooms would not
have placed Appellant on notice that the dancers and patrons were having sex in the private rooms.
According to Appellant, Gibson’s testimony was critical to her defensive theory that she lacked
knowledge of prostitution in the club and that the exclusion of such testimony both deprived her of
her right to present a defense and was harmful.
When a party argues one theory of relevance or admissibility at trial and then argues a
different theory of relevance or admissibility on appeal, no error has been preserved. See Johnson
v. State, 181 S.W.3d 760, 762-63 (Tex.App.–Waco 2005, pet. ref’d) (where defendant argued at
trial that excluded evidence was relevant and admissible to show previous relationship between
defendant and victim but argued on appeal that the evidence was relevant and admissible to show
35
victim was first aggressor, error was not preserved for appellate review).
Appellant’s failure to proffer any theory of relevance or admissibility regarding Gibson’s
excluded testimony at trial does not afford her the opportunity to do so on appeal. See Johnson,
181 S.W.3d at 762-63. As a consequence, Appellant has failed to preserve this issue for our
review. Issue Ten is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
GUADALUPE RIVERA, Justice
October 17, 2012
Before McClure, C.J., Rivera, J., and Antcliff, J.
(Publish)
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