Criminal defense lawyer, sometimes gunfighter, and son of an even more famous father Temple Lea Houston began his famous “soiled dove plea” on behalf of alleged prostitute Minnie Stacey with the words, “one of our own sex was the author of her ruin, more to blame than she.” While more than a century later our society may have moved beyond such gender baiting, often the “author of her ruin, more to blame than she” is a law enforcement officer engaged in an undercover investigation, the fruits of which are arguably inadmissible.
Prohibition on Illegally Obtained Evidence
The evidence against many defendants charged with prostitution cases is obtained by law enforcement as a result of violations of the same criminal statute. This evidence is obtained illegally in so-called “stings” under the belief that their conduct is excused by law. Whether this is true or not remains an open question.
Texas Code of Criminal Procedure Article 38.23 states that “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”1
Section 43.02 of the Texas Penal Code states that a person commits the offense of prostitution “(a) . . . 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. (b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.”2
Unlike most other crimes in Texas law, the specific intent to go through with the actual sex act is not required in order for the offense to have been committed.3 Accordingly, the officer’s intent is irrelevant to the legality of their conduct. Moreover, police officers often, according to defendants, do engage in the sexual act that is the subject of the agreement, negating the point entirely.
There are many permutations of how undercover peace officers commit the crime of prostitution as part of their investigations. For example, many officers solicit a particular sex act from the suspect for a fee in violation of Section 43.02 of the Texas Penal Code. The suspect’s alleged agreement, which is frequently the basis of the charges against him or her, could only have been obtained in reply to and/or as a result of officer’s illegal solicitation. If parties to a prostitution crime are compelled to testify at trial about their participation in the offense, they are immune to prosecution.4 This testimonial immunity, however, does not authorize the commission of the offense in the first place.
Testimonial immunity merely prevents the assertion of the privilege against self-incrimination by a party to the offense who is compelled to testify.5 It is available to any party, not just police officers, and applies not only to Prostitution, but Promotion of Prostitution, Aggravated Promotion of Prostitution, and Compelling Prostitution, the latter three of which are often difficult to prove without accomplice testimony.6 It does not immunize a party, including an undercover officer who committed the crime but is not ever called to testify.
The affirmative defense created for victims of human trafficking in the prostitution law is illustrative of this point.7 It protects a class of people who may have been forced to commit the offense, yet will never be called to testify against anyone. No similar affirmative defense exists for peace officers, who may have been ordered by a superior to commit the act, but also may not ever be called to testify.
This frequently occurs in “stings,” where a hotel or motel room has hidden cameras and microphones and the officer posing as the “john” or prostitute in the recording is identified by other witnesses—but is never called to testify. So long as the other witnesses are able to authenticate the recording and the images or voices thereon, it may be admissible, and the undercover officer’s testimony unnecessary. In such trials, the officer who was a party to the offense is not immunized, was not otherwise authorized to do so, and is potentially subject to prosecution.8
Had the legislature intended to provide police officers with more than mere testimonial immunity, it could have done so, as it has done in many other situations as discussed below. “It is a well-known rule of statutory construction express mention or enumeration of one person, thing, consequence, or class is tantamount to an express exclusion of all others.”9 Accordingly, when officers or other witnesses inexcusably violate Texas Penal Code Section 43.02 as the quid pro quo for the accused’s crime, to allow it into evidence would seem to violate the plain language of Texas Code of Criminal Procedure Section 38.23.10
No Grant of Authority to Officers to Commit Prostitution
The same statute that prohibits the use of illegally obtained evidence also contains an exception for officers acting on good faith upon a warrant issued by a neutral magistrate.11 However, as many investigations are used to develop the probable cause required by a warrant, the Texas Legislature has passed numerous statutes authorizing law violations necessary for law enforcement to carry out its tasks.
The Texas Penal Code has at least 15 provisions allowing government agents to violate the listed laws in order to conduct investigations and perform their official duties.12 Likewise, the Texas Health & Safety Code provides for law enforcement to commit law violations in furtherance of their duties or investigations relating to drug crimes.13 The Texas Alcoholic Beverage Code makes similar provisions authorizing minors to violate the law as a part of law enforcement activities.14 Prostitution is not among them.
Like prostitution, each of these law violations is unique in that there is no specific intent requirement or the mere conduct, itself, is a crime. This characteristic is what necessitates the specific authorizing statue. Contrast this with the classic undercover investigation such as a solicitation for murder, where the officer can never have violated the law because he never had the specific intent to actually commit the murder or a theft ring where there was no intent to permanently deprive the owner of the property.
There is no “catch-all” statute or principal of common law authorizing police to violate the law. While it is certainly within the legislature’s prerogative to create such a broad statute or a specific law authorizing prostitution stings, it has not done so.
Law Violation Unnecessary
The commission of the offense of prostitution by undercover officers is not only unauthorized, it is also unnecessary. Law enforcement may conduct effective undercover prostitution investigations without violating the law. For example the undercover officer can pose as a “john” who is approached by a prostitute and the recipient of the offer to engage in sex for a fee. Likewise, an undercover officer can pose as a prostitute and let someone solicit him or her without making the first and illegal statement. Third, an officer may pose as a mere bystander at a bar, on a sidewalk, or elsewhere and witness an offer and agreement by two suspects—and then arrest both. A violation of the law is not necessary to conduct a legal investigation. Had the legislature intended to authorize such conduct, it would have done so as it has in many numerous instances.
Does It Even Matter?
The Texas Court of Criminal Appeals has never dealt directly with this issue, though two lower courts of appeals have touched on it.
In a 1988 appeal from a juvenile delinquency proceeding, the El Paso Court of Appeals dealt with the conflict between Tex. Pen. Code Tex. Pen. Code § 43.06, which allows conviction on the basis of uncorroborated testimony of a party, and Tex. Fam. Code § 54.03(e), which requires corroboration of accomplice testimony. It held that an undercover policeman was not an accomplice if he does not bring about the crime but merely obtains evidence to be used against those engaged in crime and if he cannot be prosecuted for the offense charged.15 This ruling, however, did not address an actual CCP 38.23 challenge and failed to recognize the difference between testimonial immunity and exemption under the law.
More recently, in 2000, the Austin Court of Appeals dealt with the issue head on. In a case involving a surreptitious recording obtained by an undercover officer, it ruled that 38.23 did not apply in prostitution stings because its purpose is to deter unlawful conduct violating the rights of suspects, and that the undercover officer did not violate the defendant’s rights.16 The opinion, however, did not contain any substantive rights analysis—which may leave open the door to a challenge based upon clearly articulated affected rights. Regardless, neither the Austin nor the El Paso Court of Appeals set the law of the land, and until the Texas Court of Criminal Appeals rules otherwise, the issue is not settled.
Given the state of Texas criminal jurisprudence, one cannot reasonably expect the CCA to reach a different conclusion. However, with the elevation of a fourth prostitution to a state jail felony and other legislative changes, the odds are increasing that it may ultimately require their attention.
I raised the issue in a misdemeanor trial years ago and had my motion to suppress denied, but request for a “38.23 Instruction” granted. The finer points of my argument were lost on the six female jurors, but it didn’t matter. They knew that they were more “creeped out” by what the vice officers did than what my client was and so they acquitted her. And, perhaps that’s the real soft underbelly of prostitution stings: They’re not only illegal; they’re also vulnerable to exploitation and condemnation by counsel.
Temple Lea Houston won his famous prostitution case, the all-male jury acquitting Ms. Stacie after a mere ten minutes. They may have accepted their part in the fall of the woman on trial and let her go out of guilt. Modern trial lawyers who make police officers complicit in the crime of the accused may effectively use the law to acquit theirs.
1. Tex. Code Crim. Pro. Art. 38.23(a) (Vernon’s 2010).
2. Tex. Pen. Code § 43.02 (Vernon’s 2007).
3. Mattias v. State, 731 S.W.2d 936, 937 (Tex.Crim.App. 1982).
4. See Tex. Pen. Code § 43.06.
5. Whether a police officer who voluntarily testifies would be afforded the protections of this statute is an open question.
6. Tex. Pen. Code § 43.02, 43.02, 43.04, and 43.05.
7. Tex. Pen. Code § 43.02(d).
8. It should be noted that in the unlikely event of a prosecution of an officer for his participation in prostitution, the defense of “Public Duty” would likely be available. However, the availability of a defense excluding criminal responsibility is not authorization to commit the crime. See Tex. Pen. Code § 9.21.
9. Ex parte McIver, 586 S.W.2d 851, 856 (Tex.Crim.App. 1979).
10. I anticipate some appellate court may eventually opine that the allowance for uncorroborated testimony of a party obviates 38.23.
11. Id., at Art. 38.23(b).
12. Unlawful Interception, Use, or Disclosure of Wire, Oral or Electronic Communications, Tex. Pen. Code §§ 16.02(c)(2) and (c) (8)(C); Unlawful Use of Pen Register or Trap & Trace Device, § 16.03 (c)(3); Unlawful Access to Stored Communications, § 16.04(e)(4); Illegal Divulgence of Public Communications, § 16.05(c)(3); Unlawful Installation of Tracking Device, § 16.06 (d)(2); Criminal Trespass, § 30.05(c); Tampering With Identification Numbers, § 31.11(b)(2); Money Laundering. § 34.02(c); Witness Tampering, § 36.05(c); Prohibited Substances & Items in Correctional Facility or on TDCJ Property, § 38.11(e); Obstructing Highway or Other Passageway, § 42.03 (a); Abuse of Corpse, § 42.08(a) and (e); Cruelty to Animals, § 42.09 (f) and (h)(B); various weapons laws, §§ 46.15 (a); 46.02 and 46.03; 46.035 (h-1); 46.04(c); and 46.05(b); Gambling, § 47.09(a)(3).
13. Possession of a Controlled Substance, Tex. Health & Safety Code § 481.062; Manufacture With Intent to Deliver or Delivery of Simulated Controlled Substance, § 482.002(b)(1); Possession of a Dangerous Drug, § 483.041(c)(5); Contributing to the Delinquency of a Narcotics Addict, §§ 463.011 and 463.013.
14. Purchase of Alcohol by a Minor. See Tex. Alcohol & Bev. Code § 106.02(a); Possession of Alcohol by a Minor, § 106.05(b)(3).
15. J.A.F.R. v. State, 752 S.W.2d 216, 216–217 (Tex.App.—El Paso 1988, no writ)—dealing with the conflict between Tex. Pen. Code Tex. Pen. Code § 43.06, allowing conviction on the basis of uncorroborated testimony of a party, and Tex. Fam. Code § 54.03(e), which requires corroboration of accomplice testimony—held that “[a]n undercover agent is not an accomplice so long as he does not bring about the crime but merely obtains evidence to be used against those engaged in crime. Lopez v. State, 574 S.W.2d 563, 565 (Tex.Crim.App.1978). One is not an accomplice if he cannot be prosecuted for the offense charged. Carrillo v. State, 591 S.W.2d 876, 882 (Tex.Crim.App.1979).”
16. Watson v. State, 10 S.W.3d 782, 784 (Tex.App.—Austin 2000, no pet.), “It has been stated that the primary purpose of the exclusionary rule, Article 38.23, is to deter police activity that could not have been reasonably believed to be lawful by officers engaging in the activity. See Drago v. State, 553 S.W.2d 375, 378 (Tex.Crim.App.1977); Jimenez v. State, 838 S.W.2d 661, 665 (Tex.App.—Houston [1st Dist.] 1992, no pet.); Curry v. State, 831 S.W.2d 485, 487 (Tex.App.—Houston [14th Dist.] 1992, pet. ref’d); Reed v. State, 818 S.W.2d 569, 571 (Tex.App.—Beaumont 1991, pet. ref’d). We believe a more accurate expression of Article 38.23(a)’s “primary purpose . . . is to deter unlawful actions which violate the rights of criminal suspects.” Carroll, 911 S.W.2d at 221. Because Officer Small did not violate appellant’s rights, appellant lacks standing to complain that the evidence against him was unlawfully obtained. See Chavez v. State, 9 S.W.3d 817, 819 (Tex.Crim.App.2000) (citing Fuller v. State, 829 S.W.2d 191, 201-02 (Tex.Crim.App.1992)).”