Sun Ju Kim v. State

Opinion Issued May 28, 2009 Opinion Issued May 28, 2009 In The Court of Appeals For The First District of Texas NO. 01-08-00784-CR SUN JU KIM, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from County Criminal Court at Law No. 11 Harris County, Texas Trial Court Cause No. 1547095 MEMORANDUM OPINION The State charged appellant Sun Ju Kim with the offense of prostitution. See Tex. Penal Code Ann. § 43.02 (Vernon 2003). A jury found Kim guilty, and the trial court assessed punishment at 20 days’ confinement in the Harris County Jail. Kim appeals, alleging that the evidence is factually insufficient to support her conviction. We conclude that factually sufficient evidence supports the verdict and therefore affirm the judgment of the trial court. Background Officer C. Bean of the Houston Police Department’s vice division and a team of other officers investigated a complaint about prostitution at the Dong Kyong Modeling Studio. Officer Bean went to the modeling studio at night and rang its doorbell. A woman answered, and Officer Bean paid her a sixty dollar entry fee. The woman called several other women to the waiting area and allowed Officer Bean to choose one. He chose Kim, who took him upstairs to a room with a bed and told him to undress. He put one hundred dollars on the nightstand, and lay down on the bed, naked. Officer Bean testified that first Kim agreed to have oral sex with him for one hundred dollars. Their conversation continued, and Officer Bean asked whether one hundred dollars were enough to have intercourse with him. Kim agreed to have intercourse with him for that amount. He told her he needed to get a condom, got up, and retrieved his pants. He pulled out his badge and told Kim she was under arrest. Discussion When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson, 204 S.W.3d at 417. Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. We must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Kim contends that the evidence is factually insufficient to support her conviction for prostitution. She argues that Officer Bean gave conflicting testimony that failed to prove that Kim specifically agreed to perform sexual conduct for a fee. Kim claims that it is “impossible to reconcile” Officer Bean’s first statement—that he instructed Kim to stop attempting to perform oral sex on him because he did not want oral sex—with Officer Bean’s later testimony—that he asked Kim if one hundred dollars would be sufficient payment for oral sex. Contrary to Kim’s contention, Officer Bean’s testimony that he initially told Kim that he wanted to have intercourse, not oral sex, and his later testimony that she offered to perform oral sex and agreed to a one-hundred dollar price and, still later, she agreed to have intercourse do not conflict. Officer Bean testified that he had an ongoing conversation with Kim about price, and these appear to be two separate parts of the same conversation and are not in conflict. See McCarty v. State, 616 S.W.2d 194, 197 (Tex. Crim. App. 1981) (holding that protracted negotiations between the officer and the defendant over price, which included implied offers by both parties, constituted factually sufficient evidence to support a conviction for prostitution). It was within the province of the jury to determine the weight and credibility of this testimony. Kim also attacks Officer Bean’s testimony, claiming that it is “far from solid or grounded in certitude” because Officer Bean could not provide a verbatim quote from Kim as to their agreement. Under the applicable statute, however, the State need only prove that Kim knowingly offered or agreed to engage in sexual conduct for a fee. See Tex. Penal Code Ann. § 43.02(a). The statute does not require a verbatim quote to establish agreement, and Officer Bean’s testimony supports a finding that Kim agreed to perform sex for a fee. Viewing the evidence in a neutral light, we hold that factually sufficient evidence exists to support the jury’s verdict. Conclusion We hold that the evidence in this case is factually sufficient to support Kim’s conviction for prostitution. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Judges Keyes, Hanks, and Bland. Do not publish. Tex. R. App. P. 47.4