MELENDEZ v. STATE

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Court of Appeals of Texas,Houston (14th Dist.).

Raquel MELENDEZ, Appellant v. The STATE of Texas, Appellee.

No. 14-05-00371-CR.

Decided: May 09, 2006

Panel consists of Justices ANDERSON, EDELMAN, and FROST. Bob Wicoff, Houston, for appellants. Carmen Castillo Mitchell, Houston, for the State.

OPINION

Raquel Melendez appeals a conviction for prostitution 1 on the grounds that the trial court erred by overruling her objections to jury argument and hearsay evidence.   We affirm.

Jury Argument

 Appellant's first issue contends that the trial court erred by overruling the following objections to the State's jury argument:

Prosecutor:  ․ there's a place where prostitution is alive and well.   She's one of the people who contributes to that.   A reason she doesn't remember this event, think about it, why doesn't she remember offering to engage in prostitution?   It's because this is something that she does day in and day out.

Appellant:  Objection ․ outside the record.

The Court:  Overruled.

Prosecutor:  This was not some singular event that she's going to remember.

Appellant:  Objection, outside the record․

The Court:  Overruled.

Prosecutor:  This is not some singular event that she's going to remember.   This is something that happens on a daily basis.

Appellant:  Objection, outside the record․

The Court:  Overruled.

(emphasis added).   Appellant contends that there was no evidence supporting the portion of the State's argument (italicized above) that she regularly engaged in prostitution or had ever done so before.

 Proper jury argument includes, among other things, reasonable deductions from the evidence.  Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000).   Thus, it is improper to argue facts that are not in evidence.   See Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App.2004).   However, trial counsel is allowed wide latitude in drawing inferences from the evidence, so long as the inferences drawn are reasonable and offered in good faith.  Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App.1997).

In this case, the State's only witness was Deputy Kevin Monfort, an undercover member of the Harris County Sheriff's Department vice unit.   He testified that on the evening of the offense, he was participating in an undercover investigation of citizen complaints of prostitution and violations of the sexually-oriented business laws at the St. James Cabaret (the “Cabaret”) when appellant, a dancer there, approached his table, identified herself as “Lila,” and asked to sit down.   During their conversation, appellant asked Monfort if he was there to “play,” which Monfort testified was a slang term used in sexually-oriented businesses to refer to sex for pay in order to avoid using explicit sexual terms or the word “prostitution.”   Appellant then invited Monfort to a private room, where she performed two private dances and repeatedly touched him in a sexual manner that violated sexually-oriented business regulations. After the dances, appellant sat on Monfort's lap and again discussed the topic of “playing.”   When Monfort expressed interest, appellant engaged in a negotiation, which resulted in a price of $325 for “straight sex.”   During this negotiation, Monfort stated that appellant expressed no surprise at any of his questions and clearly understood the nature of the transaction they were negotiating.   When Monfort informed appellant that he did not have enough cash, appellant attempted to hold the cash he did have until he could get more and suggested that Monfort use the club's cash machine.   After Monfort explained that he did not want to do that, appellant told him he could use her name when he returned to avoid paying another entrance fee.   Monfort then left the club without returning, and appellant was later arrested after her identity was determined using the database Harris County maintains for sexually-oriented businesses.

Appellant testified at trial that she did not recognize Monfort or remember dancing for him or any other events on the evening in question.2  However, she stated that she did not offer to have sex with him because she never did that.   She agreed that she had danced for hundreds of men in the intervening year between the alleged offense and trial.

Because there is no direct evidence of any other instance in which appellant offered to engage in sex for pay, we consider whether the evidence nevertheless reasonably supports an inference that doing so was a commonplace occurrence for her and thus supports the prosecutor's argument to that effect circumstantially.   Deputy Monfort's testimony, outlined above, showed not only that appellant had offered to engage in sex for pay, but also that:  (1) she brought up the subject;  (2) she did so using a term that is commonly employed as a euphemism for prostitution in sexually-oriented businesses;  (3) she invited Monfort to a private room where she could, without being observed by others, touch him in ways that not only violated applicable laws, but were arguably calculated to increase Monfort's interest in paying to have sex with her;  and then (4) she again pursued the subject with him and engaged in a negotiation of price in a way that reflected both a clear understanding of what was involved and an aggressiveness in “closing the deal.”

From this evidence, it could reasonably be inferred that appellant had a level of experience and skill in these matters that had been developed through other such instances and, thus, that offering to engage in sex for pay was a commonplace occurrence for her.   Under these circumstances, it was within the trial court's discretion to conclude that the State's argument to that effect was within the wide latitude allowed for drawing inferences from the evidence.   Accordingly, appellant's first issue is overruled.

Hearsay Evidence

 Appellant's second issue argues that the trial court erred by overruling her hearsay objection to State's Exhibit 1, appellant's completed Sexually Oriented Business Employee Information Record.3  We review a trial court's decision to admit or exclude evidence for abuse of discretion.   Shuffield v. State, 189 S.W.3d 782, 791-92, (Tex.Crim.App.2006).   Error, if any, in the admission of evidence is cured where the same evidence comes in elsewhere without objection, either before or after the complained-of ruling.   Lane v. State, 151 S.W.3d 188, 192-93 (Tex.Crim.App.2004).

 Here, appellant objected to the exhibit at trial on the basis that it was hearsay (and presumably not subject to the business records exception) because:  (1) someone from the Cabaret needed to authenticate the exhibit because the entries were not made by the Sheriff's Department, but by someone from the Cabaret;  and (2) Deputy Monfort did not testify that he was the custodian of the records.4  However, the predicate for the business records exception to the hearsay rule may be established either by the custodian of records or another qualified witness.  Tex.R. Evid. 803(6).   Rule 803(6) does not require that the witness be the person who made the record or even be employed by the organization that made or maintained the record, and appellant cites no authority imposing any such requirement.   Therefore, appellant's second issue fails to demonstrate that Monfort was not a qualified witness for purposes of the business record exception to the hearsay rule.

 Appellant also argues that admission of this exhibit substantially strengthened the State's case because, without it, the State would have necessarily relied solely upon Monfort's independent recall of the event, and the defense theory of the case, that Monfort misidentified appellant, would have been more credible.   However, Monfort testified without objection prior to the admission of the exhibit that he had discovered appellant's real name through the vice department's database (for which Exhibit 1 had been created and was the source of the information concerning appellant) using her stage name “Lila” and verifying her identity through the photograph attached to the exhibit.   In addition, appellant testified, after admission of this exhibit, that she used the stage name “Lila,” and that she had completed that form.   Because appellant's identification from this exhibit was therefore established elsewhere at trial without objection, any error in admitting the exhibit was cured.   Accordingly, appellant's second issue is overruled, and the judgment of the trial court is affirmed.

In her first issue, appellant contends the trial court reversibly erred by overruling the following objections to the State's jury argument:

Prosecutor:  [T]here's a place where prostitution is alive and well.   She's one of the people who contributes to that.   A reason she doesn't remember this event, think about it, why doesn't she remember offering to engage in prostitution?   It's because this is something that she does day in and day out.

Appellant:  Objection, violation of Rule 404, outside the record.

The Court:  Overruled.

Prosecutor:  This was not some singular event that she's going to remember.

Appellant:  Objection, outside the record, improper reason to convict.

The Court:  Overruled.

Prosecutor:  This is not some singular event that she's going to remember.   This is something that happens on a daily basis.

Appellant:  Objection, outside the record, violation of 404.

The Court:  Overruled.

(emphasis added).

Appellant objected to the State's argument on two grounds:  (1) the argument was outside the record;  and (2) the argument violated Texas Rule of Evidence 404 and thus suggested an improper reason to convict appellant.   The majority addresses only the first objection.

The majority concludes that the testimony of the State's only witness, Deputy Kevin Monfort, supports an inference that engaging in sex for pay was common for appellant and thus supports the State's argument “circumstantially.”   More specifically, the majority reasons that Deputy Monfort's testimony supports such an inference because this testimony demonstrates that appellant (1) brought up the subject of sex for pay with Monfort, using what Monfort stated is a slang term for prostitution in sexually-orientated businesses;  (2) invited Monfort to a private room to touch him in ways that violated laws;  and (3) negotiated a price in a way that indicated she had a clear understanding of how to “close the deal.”   The majority concludes it was reasonable to infer that “appellant had a level of experience and skill in these matters that had been developed through other such instances” and therefore that she engaged in prostitution on a daily basis.

Was the State's jury argument improper?

The purpose of closing argument is to facilitate the jury's proper analysis of the evidence presented at trial so that it may arrive at a just and reasonable conclusion based solely upon the evidence admitted at trial.  Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. [Panel Op.] 1980);  Jones v. State, 38 S.W.3d 793, 796 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd).   Under our current jurisprudence, a jury argument is permissible only if it falls into one or more of the following categories:  (1) summation of the evidence;  (2) reasonable deduction from the evidence;  (3) answer to argument of opposing counsel;  and (4) pleas for law enforcement.   See Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App.1992);  but see Hawkins v. State, 135 S.W.3d 72, 85-87 (Tex.Crim.App.2004) (Womack, J., concurring) (stating, in three-justice concurring opinion, that jurisprudence requiring closing arguments to fall within one of these four categories is “obviously untrue,” “logically invalid,” “nonsensical,” and should be changed).

The argument in question does not fall within the third or fourth categories, and the State does not argue otherwise.   The State asserts that its argument constitutes a summation of the evidence;  however, as the majority correctly points out, this argument cannot be a summation of the evidence because there was no evidence at trial that appellant engaged in any act of prostitution other than the charged offense, much less any evidence that she engaged in prostitution on a daily basis.   Therefore, the main issue is whether the challenged statements are a reasonable deduction from the evidence.   See Felder, 848 S.W.2d at 94-95.

In making closing arguments, lawyers are allowed wide latitude in drawing inferences from the evidence;  however, the inferences drawn must be reasonable and offered in good faith.  Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App.1997).   On appeal, the State contends that it is reasonable to deduce from the evidence that appellant did not remember Monfort because the event was not unique or unusual for her.   The State relies on appellant's testimony that she had danced for many men and did not remember many of them and on Monfort's testimony that appellant danced for him and offered him sex for pay on one occasion.   Even if it were logical to connect this evidence in this way, it is still not reasonable to conclude that appellant does not remember Monfort because her participation in acts of prostitution is “something that happens on a daily basis.”   Monfort testified that appellant engaged in prostitution one time. Appellant testified that she had danced for hundreds of men but never engaged in prostitution.   Taking as true Monfort's testimony that appellant engaged in prostitution once, her testimony that she has danced for hundreds of men does not support a reasonable inference that she has engaged in prostitution with these men or that she engages in prostitution daily.   Further, the fact that appellant approached Monfort, used a purported slang term for prostitution, “play,” and appeared to know “how to close the deal” and negotiate a price is not enough to support a reasonable inference that she engaged in acts of prostitution “on a daily basis.”   The State's closing argument that appellant did not remember Monfort because prostitution “is something she does day in and day out” and “something that happens on a daily basis” injected new and prejudicial “facts” and speculation into the record and went beyond a reasonable inference from the evidence presented at trial.   See Melton v. State, 713 S.W.2d 107, 114 (Tex.Crim.App.1986) (stating that closing argument imputing to defendant the commission of many other similar crimes not supported by the evidence is impermissible).   Because the State's argument was improper, the trial court erred in overruling appellant's objections.

Was the trial court's error harmful?

The next determination is whether the trial court's error was harmful.   Remarks that fall outside the permissible bounds of jury argument are generally nonconstitutional errors.  Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998).   Therefore, a reviewing court must disregard the error if it does not affect the accused's substantial rights.  Tex.R.App. P. 44.2(b).  In other words, if, after reviewing the record as a whole, the reviewing court has fair assurance that the error did not influence the jury or had only a slight effect, appellant's conviction should not be overturned.   Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).   The following three factors are used to analyze the harm associated with improper jury argument:  (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct.

Severity of the Misconduct

Because a prosecutor is a public official, the jury may give undue weight to a prosecutor's allusion to facts outside the record.   See Monkhouse v. State, 861 S.W.2d 473, 478 (Tex.App.-Texarkana 1993, no pet.).   The State's argument in this case not only injected new “facts” into the record, but it also invited speculation and could have been perceived by the jury as the prosecutor's inside knowledge that appellant had committed acts of prostitution on many other occasions, even though there was no evidence of any such acts presented at trial.

In addition, the prosecutor's argument that appellant did not remember the charged act of prostitution because she commits acts of prostitution on a daily basis contravenes the policy expressed in Rule of Evidence 404, which governs the admissibility of character evidence.  Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”   Tex.R. Evid. 404;  Johnston v. State, 145 S.W.3d 215, 219 (Tex.Crim.App.2004).   The rule prohibits the admission of evidence to prove a person's character, from which the trier of fact may infer that the person acted in conformity with that character trait on the occasion in question.   Johnston, 145 S.W.3d at 219.   For example, in a prosecution for injury to a child, the State might wish to offer other instances in which the defendant beat the complainant or another child to prove he is a “chronic child abuser.” Id. In this scenario, the jury then would be invited to infer that, because the defendant is a chronic child abuser, he abused the complainant on the charged occasion.  Id. That is precisely the character-propensity purpose prohibited by Rule 404(b). Id. For centuries, the law has rejected such evidence because it injects “dangerous baggage of prejudice, distraction from the issues, time consumption, and hazard of surprise.”  Id.

Likewise, in this case in which appellant was being tried for a single act of prostitution, the State could not have offered evidence of other instances, if any, in which appellant offered to engage in sexual conduct for a fee.   See id.   In Texas, a person can be paid for performing an exotic dance without committing a crime;  however, a person cannot be paid a fee for engaging in sexual conduct, as defined by the Penal Code, without committing a crime.   See Tex. Pen.Code Ann. §§ 43.01, 43.02 (Vernon 2003).   Nonetheless, the State's closing argument invited the jury to equate exotic dancing (a non-criminal act) with prostitution (a criminal act).   Appellant admitted that she made her living by engaging in exotic dancing, but the State told the jury that appellant engages in prostitution daily.   Appellant objected that the State's argument violated Rule 404 and that it suggested an improper reason to convict her.   The State's misconduct was severe because the improper argument invited the jury to convict appellant based on her character as a person who, according to the State, engages in prostitution on a daily basis rather than based on the evidence presented at trial.   Moreover, the jury had no way to evaluate the accuracy of the State's assertion that appellant engages in prostitution “on a daily basis.”   The State's argument invited the jury to convict on an improper basis-appellant's alleged action in conformity with her alleged character as a person who engages in prostitution daily.   See Melton, 713 S.W.2d at 114.

The State cannot use closing argument to get evidence before the jury that is outside the record and prejudicial to the accused, but that is precisely what the State did in this case.   See Green v. State, 679 S.W.2d 516, 517 (Tex.Crim.App.1984) (holding that prosecutor's argument at punishment phase of trial concerning testimony about defendant's reputation invited jury to speculate, was improper, and was not harmless);  Anderson v. State, 633 S.W.2d 851 (Tex.Crim.App.1982) (stating that “[i]f defendant's objection to prosecutor's final argument on ground that argument invited jury to speculate that there was other evidence detrimental to defendant which jury had not heard had been overruled, a reversal would be required”).   The Court of Criminal Appeals has cautioned that during jury arguments, prosecutors should refrain from making arguments based upon matters outside the record.   Indeed, an argument alluding to information not introduced into evidence is improper and the error is reversible if the argument injects or emphasizes harmful facts outside the record.   See Everett v. State, 707 S.W.2d 638, 641 (Tex.Crim.App.1986) (holding that prosecutor's jury argument in response to contention by defense attorney that defendant's life was in jeopardy was so prejudicial as to require new trial);  Fuentes v. State, 664 S.W.2d 333, 337-38 (Tex.Crim.App.1984) (holding that prosecutor's comments that defense counsel was “in bad faith like usual” and that the evidence of police misconduct he was seeking to elicit was “garbage,” were manifestly improper, harmful, and prejudicial, and thus constituted reversible error);  Daniel v. State, 550 S.W.2d 72, 73 (Tex.Crim.App.1977) (holding that prosecutor's argument that officer was shot placed before the jury new and harmful facts that were not supported by evidence, and error was not harmless).   The State's argument in this case was manifestly improper and injected new and harmful “facts” into the proceeding.   Further, the State's improper and unsupported statements likely influenced or had more than a slight effect on the jury's decision to convict.

Measures Adopted to Cure Misconduct

Appellant made three timely objections to the State's improper argument, all of which the trial court overruled.   The trial court did not give a curative instruction.   Furthermore, the prosecutor's making of two more improper statements after the trial court overruled appellant's first objection may have emphasized these statements to the jury, and the trial court's overruling of defense counsel's objections to all three statements may have indicated to the jury that it was permissible to convict on this improper basis.   See Good v. State, 723 S.W.2d 734, 738 (Tex.Crim.App.1986).

Certainty of Conviction Absent Misconduct

The third factor-certainty of conviction absent the misconduct-also weighs in favor of finding harm.   As noted above, Deputy Monfort was the State's only witness, and no other evidence supported appellant's conviction.   Appellant testified that, although she had danced for many men and did not remember Deputy Monfort, she had not engaged in prostitution with Monfort because she had never engaged in prostitution with anyone.   Though there is legally sufficient evidence to support her conviction, the only evidence before the jury was the conflicting testimony of Deputy Monfort and appellant.   The evidence of appellant's guilt was not overwhelming.   Although the jury might have convicted appellant absent the State's impermissible jury argument, it is far from certain that the jury would have done so.   In Rodriquez, after appellant had just been convicted of one heroin sale, the prosecutor argued during punishment that appellant had made other heroin sales to many other people.   See Rodriquez v. State, 520 S.W.2d 778, 780 (Tex.Crim.App.1975) (holding that trial court reversibly erred in overruling objection to argument that referred to new and harmful facts neither in evidence nor reasonably inferred from evidence).   The prosecutor stated, “He has touched more lives than a killer could do with the heroin he helps disburse.”   The Court of Criminal Appeals reversed, holding that evidence of one sale, and the small quantity sold, did not support such an inference.   Id.

Furthermore, in Melton, the Court of Criminal Appeals held that the State's closing argument, implying that the defendants had committed 300 other thefts similar to the charged theft, was so prejudicial that it was not cured by the trial court's instruction to disregard it.   See Melton, 713 S.W.2d at 113-14.   Here, the trial court did not instruct the jury to disregard;  rather, by sustaining three objections to this evidence, the trial court tacitly signaled to the jury that it was proper to convict based on the other alleged acts of prostitution mentioned in the State's closing argument.   If the improper argument in Melton could not survive a harm analysis despite an instruction to disregard, then surely the application of this logic here, where the State's closing argument was not tempered by an instruction to disregard, should not produce a different result.

Conclusion

The evidence in this case does not support a reasonable inference that appellant engaged in prostitution on a daily basis.   The State's argument was an invitation for the jury to speculate on prejudicial “facts” that were not supported by evidence and to convict her on an improper basis.   Under these circumstances, the trial court's error was not harmless.   Accordingly, this court should sustain appellant's first issue and reverse and remand this case for a new trial.

FOOTNOTES

1.   A jury convicted appellant, and the trial court assessed a fine and 45 day sentence, but suspended the sentence and placed her on community supervision for one year.

2.   The offense occurred in late February 2004, charges were filed in March 2004, but appellant allegedly did not learn of the charges until early November 2004.

3.   This document contains a photograph and description of appellant, as well as her stage name “Lila,” legal name, address, social security number, and driver's license information.

4.   Appellant also complains for the first time on appeal that this exhibit should not have been admitted under the business records exception to the hearsay rule because Monfort did not testify that:  (1) the record was made at or near the time of the event being recorded;  or (2) the person making the records or submitting the information had personal knowledge of the events being recorded.   However, because these elements were not challenged in the trial court, they are not properly before us for review.   See Tex.R.App. P. 33.1(a)(1)(A);  Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.2002);  see also Carty v. State, 178 S.W.3d 297, 305 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd).

RICHARD H. EDELMAN, Justice.

FROST, J., dissenting.

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