Q. Tate Williams

Q. Tate Williams earned his BA in Archaeological Studies and Anthropology from the University of Texas at Austin in 1996, then attended the University of Houston Law Center, earned his JD Tate was admitted to the bar in 1999. He’s a member of the Criminal Justice and Family Law Sections of the State Bar of Texas, the Texas Criminal Defense Lawyers Association, the Harris County Criminal Lawyers Association, the Fort Bend County Criminal Defense Lawyers Association, and the Houston Trial Lawyers Association.

Poaching Soiled Dove: Are Prostitution Stings Illegal Under Texas Law?

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.

Notes

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)).”

Faith in the Law – A War Story

 As an attorney, Democrat, and Episcopalian, I am characteristically reluctant to talk openly about my faith. But here, in the “Bible Belt,” people bring their faith into the courtroom, admittedly or not. Judges do it; jurors do it; parties do it; the lawyers do it too. Even so, as trial lawyers, we’re often afraid to discuss religion because of the perceived risk that we may offend and alienate jurors. I’m no longer afraid. Texas is home to some of the largest churches and highest church-attendance rates in the country. Texans are very comfortable talking about their faith—and yours too, if you let them.

        Rather than avoid matters of faith in trial, I embrace them, and incorporate scripture that intersects with the law or facts of my case into voir dire. Two matters, in particular, have a frequent place in my criminal trials—the Ninth Commandment’s prohibition against bearing false witness and the beatitude of mercy. But how I overcame my fear and found the strength to first discuss the Ninth Commandment in voir dire may have been the result of divine intervention.

        I began thinking about using the Ten Commandments in trial after a conversation with a friend who has labored for years to erect memorials to the Ten Commandments at courthouses around the country. One day on the phone, he asked what I thought about his work. I told him they were going about it wrong and should focus on having plaques of the Ninth Commandment placed in every courtroom in America, because witnesses in cases about the others lied all the damn time. He said he’d stick with all ten.

        A few weeks later I was preparing for voir dire in a case where the facts did not allow me to argue that the police, while sincere in their beliefs, were mistaken. As any lawyer who has been to a David Burrows seminar may recall, reasonable doubt is more frequently found when jurors have the option of believing someone is mistaken rather than lying. But, for my client’s defense to be plausible, the police had to be lying—a tough sell to a very red Harris County jury. So, I took a hard right turn. I find that to earn credibility with conservative jurors, one often has to take a page from Alcibiades and out-Spartan the Spartans. My sponsor was the rabbi on the panel.

        As I looked at the dozens of venirepersons on the benches before me, I saw a familiar face. In the middle of the second row was a rabbi who had taught one day of my Jewish Law class at the University of Houston Law Center eight years before. I promptly called on him, and said, “Rabbi, when I was in law school, Yale Rosenberg brought you in to teach a day of our class, and you said something I’ve never forgotten.”

        His face lit up, and he recalled: “Yes, I remember that. It was a lot of fun.” I had him, and, as I was soon to learn—he had everyone else on the panel. And I found the courage to bring faith into the courtroom.

        After he spoke, I chose another person and asked what they thought about the controversy overhanging the Ten Commandments in courthouses. They thought it was a good idea because people needed to know where the law came from and what was important. Other jurors nodded their head, and gave similar views.

        Smelling blood, I bit and said I thought it was a good idea, too, but for a little different reason. I, then, turned back to the rabbi and asked him what the Commandments said about witnesses. And he reminded us that there was a prohibition against bearing false witness against others. I claimed I couldn’t hear and had a couple of people, who I thought hadn’t been paying attention, repeat it back to me.

        Another venireman answered a question about what the other nine things were. I listed them, and asked what it said to them—that bearing false witness was so important that of all the things the ancients and the Almighty (a nod to the skeptical on the panel) could’ve written down, they picked false witness to be one of the ten—that it was as important as telling people not steal, kill, have false idols, and covet? That stirred some thoughts, but not a lot of talk.

        With a little prompting, the rabbi said that maybe it was because saying false things about people can cause them a lot of trouble, yet was easy to do compared to the others, one just talked. That made sense to the panel. After all, as another juror pointed out, not everyone has the tools to fashion a golden calf in the garage.

        I then told them what I told my friend, that I thought that the Ninth Commandment needed to be in all Courtrooms because it was the one most likely to be broken in courtrooms whereas the others were usually broken before anybody got there. That seemed to make sense to everyone but the judge and the prosecutors, as usual. No doubt they knew their own sins best. Focusing on a juror who had yet to speak, I asked him to tell us a story of a time when he was accused of doing something he didn’t do. He said he’d been accused of cheating in high school by another student. I asked if the person was lying or mistaken. He said the guy was lying and it was his word versus the other guy’s because it was a week after the test had been taken. I asked him how it felt, and he said frustrating and powerless. He didn’t know why the guy “lied on him.” I asked others to tell their stories. Many had one to tell. Some of them didn’t know why it happened to them, either.

        I inquired of each, considering their own experience, whether they needed to know why a witness might be lying to know that they were lying. Some said it was helpful, but as with many things in life, you may never know why. One man said, “sh%$ happens.” Everyone but the judge laughed. I found a way to strike the few people who needed to know why. As a safety, I used a scaled question that asked people their level of agreement with the statement, “A police officer is just as likely to be mistaken or dishonest as any other witness, including a defendant who testifies.”

        To my amazement, at the conclusion of voir dire, when it came time to make challenges for cause and peremptories, the state failed to strike the rabbi. At trial, the police were accused, by me, of lying (they were) about the circumstances of my client’s arrest. Then the Defendant and his brother-in-law both testified, convincingly. The rabbi was elected foreman of the jury. Less than an hour later, they returned an acquittal. They didn’t believe the police and didn’t like the prosecutors.

        Of the two assistant district attorneys on the case, one now hates my guts and the other became a close friend—introducing me to the woman I would later marry, yet another prosecutor. After the trial I asked my friend why they didn’t strike the rabbi. They said: “Why would we? We thought he would see your client was the one lying.” My personal rapport with him apparently didn’t bother them. I knew neither to be church­going folk.

        As we were all packing up to go home, one of the other jurors asked me what the rabbi had said in class that I had never forgotten. I told them he said: “People are always coming to me saying Rabbi, I never see God in my life. It seems like in the Torah he’s behind every bush and talking people’s ears off, but I don’t see him at all. I tell them that God has taught us in the same way one teaches a child to walk: At first you hold the child up, then by his hand, and then you step away and let the child come to you.”

        The other five jurors looked at him with wonder, and he addressed them: “I don’t know. I say so much it’s hard to remember, but it sounds like something I would say”—words I remember as well as his original statement.

            My client was acquitted, in part because I was able to harness our shared Judeo-Christian values to my client’s defense. No, God didn’t tell the jury to acquit. But the words of the Ninth Commandment reminded jurors that witnesses, in fact, lie. They didn’t need to take my word for it; they had it on higher authority.