Opinion
No. 14-09-00041-CR
Memorandum Opinion filed May 18, 2010. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the County Court at Law No. 3 Jefferson County, Texas, Trial Court Cause No. 265871.
Panel consists of Justices YATES, SEYMORE, and BROWN.
MEMORANDUM OPINION
A jury convicted appellant, John Alvin Willis, of prostitution, and the trial court assessed a $500 fine as punishment. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction and the trial court erred by refusing to submit appellant's requested jury instruction regarding spoliation of evidence. Because all dispositive issues are settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant challenges legal and factual sufficiency of the evidence to support his conviction.A. Standard of Review
In considering a legal-sufficiency challenge, we review all evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury is the sole judge of the credibility of witnesses and may choose to believe or disbelieve all or any part of a witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). We ensure only that the jury reached a rational decision and do not reevaluate the weight and credibility of the evidence. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). In examining a factual-sufficiency challenge, we review all evidence in a neutral light and set aside the verdict only if (1) the evidence is so weak that the verdict seems either clearly wrong or manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Although we may substitute our judgment for the jury's when considering credibility and weight determinations, we may do so only to a very limited degree and must still afford due deference to the jury's determinations. See Marshall, 210 S.W.3d at 625.B. Analysis
A person commits the offense of prostitution "if he knowingly: (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or (2) solicits another in a public place to engage with him in sexual conduct for hire." Tex. Penal Code Ann. § 43.02(a) (Vernon Supp. 2009). Appellant was charged with committing prostitution via the second method defined in section 43.02(a). Relative to this method, an offense is established "whether the actor solicits a person to hire him or offers to hire the person solicited." Id. § 43.02(b). "Sexual conduct" includes "deviate sexual intercourse, sexual contact, and sexual intercourse." Tex. Penal Code Ann. § 43.01(4) (Vernon 2003). In this case, the State alleged that the sexual conduct solicited by appellant was "sexual intercourse and deviate sexual intercourse." The application paragraph of the jury charge mirrored this allegation with respect to the sexual conduct allegedly solicited. Under the prostitution statute, "sexual intercourse" means "any penetration of the female sex organ by the male sex organ." Id. § 43.01(5). "Deviate sexual intercourse" means "any contact between the genitals of one person and the mouth or anus of another person." Id. § 43.01(1). The State presented the testimony of Lakiesha Thomas of the Port Arthur Police Department. According to Officer Thomas, on the evening of July 10, 2007, she was working undercover by posing as a prostitute on a public street in an area of Port Arthur known for prostitution activity. Appellant approached in a vehicle, stopped where Officer Thomas was standing, and initiated a conversation. Appellant asked, "Can I give you a ride?" Officer Thomas replied, "It's going to cost you." Appellant asked, "How much?" Officer Thomas responded, "10 for head," which meant oral sex, and "20 for sex," which meant "straight sex." Appellant then said, "Okay." Officer Thomas told appellant to drive around the block and she would meet him on the opposite corner. Appellant drove away and made the turn as instructed. After Officer Thomas signaled the surveillance unit involved in the operation, the police stopped appellant's vehicle. Officer Thomas further testified she was not mistaken regarding the substance of the above-cited conversation and appellant's statements were "plain and clear." Appellant does not cite any contrasting testimony but merely asserts that the evidence supporting his conviction was "bordering on nonexistent." Nevertheless, he did testify at trial and provided a different version of the incident. Appellant claimed he approached Officer Thomas because he saw her standing across from a vehicle and thought she may have had car problems or some other distress. Appellant slowed his vehicle and asked if she needed a "boost" or "lift" or some question to that effect. When she quoted the prices for sexual acts, he became scared and sped away. Appellant denied asking "how much?," agreeing to any sexual acts with Officer Thomas, or attempting to engage her services as a prostitute. This case essentially turned on the credibility of witnesses. The jury was free to believe Officer Thomas, and we find no reason to intrude on its decision. The jury could have rationally concluded that appellant offered to hire Officer Thomas for the sexual acts she mentioned by initiating the contact with her, inquiring about costs, responding "okay" when she quoted the sexual acts and prices, and complying with her instruction to meet her on the opposite corner. Therefore, after reviewing all evidence in the light most favorable to the verdict, we conclude a rational jury could have found beyond a reasonable doubt that appellant knowingly solicited Officer Thomas in a public place to engage with him in sexual intercourse and deviate sexual intercourse for hire. Further, viewing all evidence in a neutral light, we conclude it is not so weak that the verdict seems clearly wrong or manifestly unjust, and the verdict is not contrary to the great weight and preponderance of the evidence. Accordingly, we overrule appellant's first issue.II. JURY INSTRUCTION
In his second issue, appellant contends the trial court erred by refusing to submit appellant's requested jury instruction regarding spoliation of evidence. Appellant's complaint concerns audio and video recordings of the incident at issue. It is apparently undisputed that the interaction between appellant and Officer Thomas was recorded by audio and video tape, but the police department was unable to locate the recordings and thus the State did not produce them. The jury heard evidence presented by the State regarding its efforts to produce the recordings. Officer Thomas testified it was not her role to "handle" that evidence; rather, Officer Primm or Officer Arviso, who participated in the surveillance aspect of the operation, would have logged them into evidence. Officer Heather Primm, the "investigating officer" for the operation, explained that undercover operations are typically recorded via audio and video, and the officer who made the recordings must submit them to the police department for conversion to C.D. or D.V.D., and then they must be placed "into evidence." She further explained that officers have defined roles in these operations, and she was not responsible for making or submitting the recordings at issue. She believed that Detective Arviso may have been responsible for the recordings although she was not sure. She and the prosecuting attorney had discussed the recordings before trial, but the department did not have them in evidence. On cross-examination, Officer Primm also testified that, three days after the incident, she prepared a report to submit to the district attorney, and there were no recordings contained in evidence to include with her report. At some point before trial, she inquired with the department's evidence technician, who did not produce any recordings. On the day of trial, Officer Primm asked Officer Arviso and another officer about the recordings, but Officer Arviso's 2007 cases were lost in Hurricane Ike several weeks before trial; thus, to the extent he retained "hard copies" for 2007 cases, he did not have them as of the trial date. For purposes of making a "bill" outside the jury's presence, appellant presented testimony from Chris Cadena, the prosecuting attorney. Cadena agreed that, after appellant filed a motion for discovery, Cadena and appellant's attorney discussed whether any recordings existed. Cadena testified he asked Officer Primm to inquire with appropriate department employees about the existence of the recordings. Cadena also inquired with the only other officers who names appeared in the documents submitted to the district attorney's office. Cadena had not spoken with Officer Arviso because his name did not appear in the documents, and Cadena first learned of his role during trial. Appellant then requested a jury instruction regarding spoliation, a continuance so that the State could search for the tapes and produce them, or a mistrial. The trial court denied the request for a continuance or mistrial but expressed it would permit an appropriate jury instruction. The trial court also found that the State had exercised "due diligence" relative to discovery of the tapes but instructed Cadena to contact the officers whose names were first mentioned during trial about whether the recordings could be produced. After complying, Cadena reported to the trial court that Officer Arviso could not remember this particular case, but, if he had made a recording, it would be "in evidence" at the police department. Officer Arviso also said that all his 2007 cases were lost due to a computer glitch. The trial court reiterated that it was satisfied the State had used "due diligence" to locate the recordings, but it would allow appellant an appropriate jury instruction. Appellant requested the trial court to submit the following instruction in the jury charge:It is a function, obligation and duty of the jury to determine the facts of the case and guard against or take into account any malfunction, erosion or mistake, including destruction of evidence, that might prejudice those facts, however unintentional it might have been.
During the course of this trial, you have heard that certain evidence was lost destroyed or disposed. When evidence is destroyed, we call it spoliation. Spoliation of evidence is the unexplained and deliberate destruction Of [sic] relevant evidence that gives rise to interference [sic] that the thing which has been Would [sic] have been unfavorable to the position of the party or agency Responsible [sic] for the spoliation.
If you find that a person or agency acting on behalf of the State lost, destroyed Or [sic] disposed of the video or audio recording or any other item, whether Deliberately [sic] or negligently, you are permitted to infer that your consideration Of [sic] the evidence which was destroyed would have been unfavorable to the State's Position [sic] in this case. You may consider whether the individual or agency who destroyed the evidence knew the evidence might be supporting [sic] of the opposing party.
The trial court refused appellant's request and instead submitted the following instruction:
During the course of the trial, you have heard that certain evidence was lost or disposed of. When evidence is lost or disposed of, we call it spoliation. Spoliation of evidence is the unexplained destruction or loss of relevant evidence that gives rise to inference [sic] that the thing which has been lost or disposed of would have been unfavorable to the position of the party or agency responsible for the spoliation.
If you find that a person or agency acting on behalf of the State lost or disposed of the video or audio recording, whether deliberately or negligently, you are permitted to infer that your consideration of the evidence which was lost or disposed of would have been or [sic] unfavorable to the State's position in this case. You may consider whether the individual or agency who lost or disposed of the evidence knew the evidence might be supporting [sic] of the opposing party.When reviewing an allegation of jury-charge error, we undertake a two-step review: first, we must determine whether error actually exists in the charge; and if so, we must determine whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). In the "Argument" section of his brief, appellant generally asserts the trial court's charge was inadequate, appellant's proposed charge was "very thorough and legally sufficient to satisfy the case law in this area," and there was a "clear violation" of his rights. However, appellant cites no authority to support this contention and show he was entitled to any jury instruction, much less his requested instruction. See Tex. R. App. P. 38.1(i) (providing that brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities and the record). In the "Summary of the Argument" section of his brief, appellant cites one case to support his complaint. Appellant asserts that State v. Vasquez, 230 S.W.3d 744 (Tex. App.-Houston [14th Dist.] 2007, no pet.) stands for the proposition that the Fourteenth Amendment to the United States Constitution "is violated when the State loses or destroys evidence which may be potentially useful." However, contrary to appellant's suggestion, the Vasquez court actually recited the distinction drawn by the United States Supreme Court between pre-trial destruction of "material, exculpatory evidence" and pre-trial destruction of "potentially useful evidence." See id. at 747 (citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988)). We stated that a federal due-process violation occurs whenever a state suppresses or fails to disclose material, exculpatory evidence regardless of whether the state acted in bad faith; id. (citing Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 1202, 157 L.Ed.2d 1060 (2004)); but a defendant seeking to prove a federal due-process violation based on a state's destruction of potentially useful evidence must show the state acted in bad faith in destroying the evidence. Id. (citing Fisher, 540 U.S. at 547-48, 124 S.Ct. at 1202; Youngblood, 488 U.S. at 57-58, 109 S.Ct. at 337). Appellant does not assert the recordings were material and exculpatory but suggests only that they were potentially useful. However, appellant cites, and the record contains, no evidence that the State acted in bad faith in failing to produce them. Rather, as discussed above, the record indicates the State attempted to produce any recordings, but the police department could not find them. The record further indicates that, at most, any recordings were either never logged into evidence at the police department or were lost after they were logged into evidence; and under either scenario, any "hard copies" were subsequently lost because of a computer problem or Hurricane Ike. Nevertheless, even if appellant were entitled to a jury instruction regarding the recordings, he has not demonstrated he was entitled to his requested instruction. The difference essentially between the instruction requested and the instruction given was that the trial court eliminated the indication the State or police department affirmatively "destroyed" the recordings and instead referenced evidence that was "lost" or "disposed of." As the trial court correctly stated during the discussion regarding the jury charge, there was no evidence the State or police department deliberately destroyed any recordings. Therefore, the trial court did not err by refusing to submit appellant's requested instruction. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007) (requiring trial court to submit jury charge that, among other matter, distinctly sets forth "law applicable to the case" (emphasis added)); Carrillo v. State, 591 S.W.2d 876, 891 (Tex. Crim. App. 1979) (recognizing trial court is not required to charge the jury on an issue not raised by the evidence), overruled on other grounds by Reed v. State, 744 S.W.2d 112, 125 n. 10 (Tex. Crim. App. 1988)). Accordingly, we overrule appellant's second issue. We affirm the trial court's judgment.