Affirmed and Memorandum Majority and Concurring Opinions filed
December 31, 2019.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00364-CR

                          ERIK JIMENEZ, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1514680

                  MEMORANDUM MAJORITY OPINION

      A jury found appellant, Erik Jimenez, guilty of aggravated promotion of
prostitution. In two issues, appellant challenges his adjudication of guilt. First,
appellant contends the evidence was insufficient to show that a prostitute
specifically named in the complaint was a prostitute, or that appellant controlled,
managed, or supervised a prostitution enterprise. Second, appellant contends the
trial court erred in admitting evidence of an extraneous offense or bad act. We
affirm.

                     I.     SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant contends that the State failed to prove that a
prostitute named in the complaint was a prostitute, and the State failed to prove
that appellant controlled, supervised, or managed a prostitution enterprise.

      A. Legal Principles

      In a sufficiency review, we consider all of the evidence in the light most
favorable to the jury’s verdict to determine whether, based on that evidence and
reasonable inferences therefrom, any rational juror could have found the essential
elements of the crime beyond a reasonable doubt. Balderas v. State, 517 S.W.3d
756, 765–66 (Tex. Crim. App. 2016). We defer to the jury’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Id. at 766. The jury is the sole judge
of the credibility and weight to be attached to witness testimony, and we must
defer to the jury’s resolution of conflicting inferences that are supported by the
record. See id. The jury is free to believe or disbelieve all or part of a witness’s
testimony. Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014).

      A person commits the offense of aggravated promotion of prostitution “if he
knowingly owns, invests in, finances, controls, supervises, or manages a
prostitution enterprise that uses two or more prostitutes.” Tex. Penal Code
§ 43.04(a).   A “prostitution enterprise” is “a plan or design for a venture or
undertaking in which two or more persons offer to, agree to, or engage in sexual
conduct in return for a fee payable to them.” Taylor v. State, 548 S.W.2d 723, 723



                                          2
(Tex. Crim. App. 1977). Aggravated promotion of prostitution is a first-degree
felony. Tex. Penal Code § 43.04(b).

      In a felony case, absent waiver, the indictment is the charging instrument on
which an accused may be tried. See Tex. Const. art. I, §§ 10, 12; Tex. Code Crim.
Proc. art. 1.05 (“No person shall be held to answer for a felony unless on
indictment of a grand jury.”); Jenkins v. State, No. PD-0086-18, 2018 WL
6332219, at *2 (Tex. Crim. App. Dec. 5, 2018) (“The presentment of a valid
indictment vests the district court with jurisdiction of the cause. . . . [C]riminal
jurisdiction over a person requires the filing of a valid indictment or information.”
(citations omitted)).

      A complaint charges the commission of an offense, but it also has at least
two discrete functions. Rios v. State, 718 S.W.2d 730, 732 (Tex. Crim. App. 1986)
(per curiam); see also Tex. Code Crim. Proc. art. 15.04. One is to supply a basis
for a magistrate to issue a warrant for arrest. Rios, 718 S.W.2d at 732; see also
Tex. Code Crim. Proc. art. 15.03. Another is to serve as a charging instrument for
trial in municipal court or justice court. Rios, 718 S.W.2d at 732; see also Tex.
Code Crim. Proc. art. 45.018(a). In a misdemeanor case, a complaint is a
prerequisite to a valid information. Rios, 718 S.W.2d at 732 n.4; see also Tex.
Code Crim. Proc. arts. 21.20–21.22. However, there is no requirement for the State
to file a complaint or information before a grand jury issues an indictment.
Ferguson v. State, 335 S.W.3d 676, 682 (Tex. App.––Houston [14th Dist.] 2011,
no pet.); see also State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 424–25 (Tex.
Crim. App. 1990) (return of grand jury indictment supersedes the complaint
procedure and necessity of an examining trial to determine the issue of probable
cause).



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       B. Indictment

       Appellant alleges there is legally insufficient evidence to establish that one
of the women specifically named in the complaint, but not the indictment, was a
prostitute. Appellant does not raise any issue or otherwise challenge the indictment
or complaint in this case. Appellant does not challenge that the State otherwise met
its burden with regard to establishing that the individuals named in the indictment
were prostitutes.

       In the complaint, the State alleged that two specific women were prostitutes.
Later, the Grand Jury of Harris County returned an indictment that also alleged two
named women were prostitutes––one of the same women as named in the
complaint, and another woman not originally named in the complaint.1

       In this felony case, the indictment is the charging instrument. See Tex.
Const. art. I, §§ 10, 12; Tex. Code Crim. Proc. art. 1.05; Jenkins, 2018 WL
6332219 at *6, *7; see also Rios, 718 S.W.2d at 732. Appellant does not challenge
the sufficiency of the evidence that either of the prostitutes named in the
indictment were, in fact, prostitutes. Because the State was not required to prove
that the woman named in the complaint was a prostitute, any lack of such evidence
does not render the evidence insufficient to support the conviction.

       C. Control, Supervision, or Management of a Prostitution Enterprise

       Appellant next contends that there is insufficient evidence to establish that
appellant managed, controlled, or supervised a prostitution enterprise.



       1
         It is unclear from the record the cause of the name change between the complaint and
the indictment, but it does not matter. Appellant does not raise an issue regarding the
inconsistency. Further, there was no challenge or objection lodged in the trial court regarding the
differences and whether such differences constituted error.

                                                4
      At trial, the first woman named as a prostitute in the indictment testified that
she met appellant during an interview for a job where she would be working as a
masseuse. Appellant told her what the job entailed, how much she would charge by
the hour and half-hour, and how much she was to pay appellant weekly for rent.
Appellant instructed her that she was not to have sex with customers or do
anything “like sex.” However, she was clear in her testimony that appellant
instructed her that the job included a “happy ending” to the massage, in which she
would use her hands to manually stimulate a customer to ejaculation. For
approximately a year and a half, she paid appellant weekly rent for the room. She
negotiated weekly rent with appellant for the room, initially paying $500 per week
and later paying only $350 per week. Appellant instructed her to charge $160 per
hour and $80 per half-hour for her services. Appellant indicated that she could
charge more if the customer wanted her to be “uncomfortable,” meaning fully nude
while performing a massage.

      She testified that there were five to six women who would work daily at this
particular location near Hillcroft. Appellant would post ads for all the women
working that day and would charge a fee to do so. Appellant would further provide
cell phones for use in responding to the ads that he posted. The phones were
available to all the women who were working that day. The witness testified that
every week, appellant collected rent from her during a one-on-one, closed-door
meeting. Each woman would meet with appellant weekly in this same manner.
According to the witness, at the beginning of her employment, appellant was not
present daily, but for some time leading up to the arrest, appellant was present
every day.

      On June 22, 2016, she was getting ready to leave when appellant asked her if
she wanted to see one last client. She agreed and stayed to meet the client who,

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unbeknownst to her, was an undercover police officer. On other occasions,
appellant also asked the other women working whether they wanted to meet with
clients and would arrange such meetings.

      A lieutenant from the Texas Department of Public Safety testified that on
June 22, 2016, he found an ad for what he believed was a criminal enterprise and
used the phone number from the ad to set a “date.” The ad appeared to be from the
same location with which he and his team were already “familiar with from a prior
investigation.” He inquired about time, location, and pricing for an hour-long “four
hand” massage or special (a massage with two women at the same time). Upon
arriving, the woman who testified at trial let him in the door and led him to a dark
room with a massage table. She agreed to massage him while she was nude and
give him a “happy ending” in exchange for $180. He inquired about having
another woman for the “four hand” special. She then brought in five to six
additional women to choose from. He chose a second woman, the second named
prostitute in the indictment. This woman also agreed to provide him a massage
while she was nude with a “happy ending.”

      A short time thereafter, there was a knock on the door of the room where he,
and the women were. One of the women left the room and then everything became
hectic. Upon returning to the room, the two women had a whispered conversation,
questioned him about whether he was a police officer, and then both women left
the room abruptly. Uniformed police officers entered and made arrests.

      A special agent with the Texas Department of Public Safety testified that on
June 22, 2016, he was conducting surveillance as part of the undercover
investigation at the Hillcroft location. He saw appellant exit the Hillcroft location
and walk toward the vehicle where he was sitting with other police officers. The
officers in the unmarked police vehicle were wearing vests clearly marked with the

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word “police” and “stuck out like a sore thumb” in this area. Appellant then turned
back to the building, knocked on the door, discussed something with the woman
that answered, and fled the scene. In his experience, this behavior is indicative of a
person with “ties” to the place as opposed to a “john” that would otherwise just
flee the scene. Shortly after the discussion between appellant and the woman at the
door, five to six women wearing “provocative clothing” fled the building.

        The State also proffered the evidence of appellant’s actions on October 19,
2016, some four months after appellant’s arrest. The special agent testified that his
office conducted interviews with two women on October 10, 2016, during which at
least one of the women indicated that appellant was continuing to operate out of
the Hillcroft location. As a result, he continued the investigation into the operations
at the Hillcroft location by sending in another undercover officer on October 19,
2016.

        The surveillance team outside of the Hillcroft location observed a vehicle
approach with two females and two males inside. The two females entered the
Hillcroft location, while the two males remained in the vehicle. Appellant was one
of the males in the vehicle. The vehicle ultimately parked right next to a
surveillance vehicle. An arrest for prostitution was made at the Hillcroft location
that day. The special agent testified that based on his training and experience, it is
not usual for a “john” to return to a location where he has previously been in
trouble for prostitution.

        The lieutenant similarly testified regarding the events surrounding the
October 19, 2016 investigation of the Hillcroft location. He was performing
surveillance from a vehicle on an adjacent parking structure roof, roughly 1500
feet away from the Hillcroft location and facing its door. From his location, he
observed a black Cadillac approach, saw two females exit, and saw the Cadillac

                                          7
park directly adjacent to his own surveillance vehicle. Appellant was a passenger
in the black Cadillac. The Cadillac remained in the parking space for several
minutes and then moved to a different parking space. Several minutes later, the
Cadillac left the parking lot. Approximately five minutes later, the Cadillac
returned to roughly the same initial parking space. Based on his training and
experience, he believed that appellant was “conducting countersurveillance” which
he defined as “basically . . . the person that’s engaging in the contraband illegal
activities efforts to detect police presence or covert police presence. It’s their effort
to avoid apprehension.”

      Viewing the evidence presented in the light most favorable to the verdict, we
conclude that a rational trier of fact could have concluded beyond a reasonable
doubt that it was appellant’s “desire” to “promote and further the venture or
undertaking and bring it to a successful conclusion.” See Floyd v. State, 575
S.W.2d 21, 24 (Tex. Crim. App. 1978) (discussing the definition of “prostitution
enterprise” and the context and meaning of the word “uses” in Section 43.04). The
State put forth evidence that appellant had more than just “passive knowledge” of
the enterprise and was instead actively involved in the management, promotion,
and control of the business in various ways. See id. Appellant charged rent, set
prices, posted ads, provided cell phones, arranged “dates,” maintained rules
regarding sexual activity, and leading up to his arrest, was present daily. Appellant
was at the location on the day the officers made the arrests and warned the women
of police presence. Many of the women then fled. Just before the raid by police,
the undercover officer was questioned about whether he was with law
enforcement. On a later date, appellant was present at the Hillcroft location
performing “counter-surveillance.” See Branch v. State, 497 S.W.3d 588, 590
(Tex. App.––Eastland 2016, no pet.) (concluding there was sufficient evidence to


                                           8
support defendant’s conviction under Section 43.04 based on detectives’ testimony
regarding purpose for a male escort, defendant’s driving and dropping off two
prostitutes at motel, defendant’s talking with the prostitutes prior to their
engagement, condoms in defendant’s car, and defendant’s instructions not to talk
because he would get a lawyer).

      Appellant also contends that there was no evidence he received money from
the other prostitutes, citing Duffield v. State in support. 643 S.W.2d 139, 140 (Tex.
Crim. App. 1983). Under a different provision of the Penal Code, the Court of
Criminal Appeals in Duffield held that the evidence was insufficient where the
defendant was not shown to have either received money pursuant to an agreement
to participate in the proceeds of prostitution or solicit another to engage in sexual
conduct with another person for compensation. See id.; see also Tex. Penal Code
§ 43.03(a). Thus, in Duffield, the State was required to show that the defendant was
more than a mere “conduit” or prostitute for the reviewing court to uphold the
conviction. Duffield, 643 S.W.2d at 140. Under the provision applicable to
appellant’s case, however, neither of these elements is required to uphold his
conviction. Compare Tex. Penal Code § 43.03, with id. § 43.04. Even so, from the
evidence presented, a rational jury could have reasonably inferred from the
prostitute’s testimony that the other women also paid “rent” to appellant in the
same manner.

      The evidence is sufficient to show that appellant controlled, supervised, or
managed a prostitution enterprise.

       We overrule appellant’s first issue.




                                          9
                       II.    ADMISSIBILITY OF EVIDENCE

      In his second issue, appellant argues that the trial court erred in allowing
evidence of the extraneous act of appellant sitting in a car outside of the Hillcroft
location on a later date and the characterization of his behavior on that date as
“counter-surveillance.”

      A. Legal Principles

      We review the trial court’s ruling under an abuse of discretion standard and
will not disturb the ruling if it is within the zone of reasonable disagreement.
Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); see also Moses v.
State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Whether extraneous offense
or bad act evidence has relevance apart from character conformity is a question for
the trial court. Moses, 105 S.W.3d at 627.

      Texas Rule of Evidence 404(b) provides that “[e]vidence of a crime, wrong,
or other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.” Tex. R.
Evid. 404(b). However, extraneous offense or bad act evidence may be admissible
when it has relevance apart from the prohibited use of showing character
conformity. See id.; Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App.
1990). Such extraneous offense evidence may be relevant to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident. Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005). This list
is illustrative, not exhaustive. Id. Extraneous offense evidence may be admissible
when a defendant raises a defensive issue that negates one of the elements of the
offense. Id.




                                         10
      B. Background

      The State proffered the evidence of appellant’s actions on October 19, 2016,
some four months after appellant’s arrest, detailed above in Section II, Part C of
this opinion.    In addition to the testimony regarding appellant’s counter-
surveillance, in closing the State argued, “Why would a john be present another
day after his arrest for prostitution at that location being more involved [sic]?
Unless [appellant] had a loyalty program or a frequent flier miles with a
prostitution enterprise, there is no reasonable explanation as to why he was there
yet again.”

      C. Analysis

      The evidence put forth by the State and admitted by the trial court is relevant
to the element of whether appellant was controlling, supervising, or managing a
prostitution enterprise at the Hillcroft location. It is also relevant to show that
appellant is not merely a “john” with bad timing in visiting the Hillcroft location
on the day of the police raid. See Alvarez v. State, 813 S.W.2d 222, 225 (Tex.
App.––Houston [14th Dist.] 1991, pet. ref’d) (evidence of counter-surveillance by
defendant used to show defendant’s knowledge, as well as care, control, and
management of drugs in transport). Thus, because the evidence had relevance apart
from character conformity, the trial court did not abuse its discretion in overruling
appellant’s Rule 404(b) objection.

      We overrule appellant’s second issue.




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                               III.    CONCLUSION

      Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.




                                      /s/    Ken Wise
                                             Justice



Panel consists of Chief Justice Frost and Justices Wise and Hassan. (Hassan, J.,
concurring).
Do Not Publish — TEX. R. APP. P. 47.2(b).




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