
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-99-00312-CR





Leo Watson, Appellant


v.


The State of Texas, Appellee





FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY

NO. 482-897, HONORABLE JAN BRELAND, JUDGE PRESIDING





	Appellant Leo Watson was convicted in a bench trial of the offense of prostitution. 
See Tex. Penal Code Ann. § 43.02 (West 1994).  The trial court assessed appellant's punishment
at confinement in the county jail for three days.  On appeal, appellant asserts that the trial court
erred in admitting unlawfully obtained evidence.  We will overrule appellant's point of error and
affirm the judgment.
	Appellant was arrested in a "john sting" operation on June 18, 1997.  On that
evening, as a part of the sting operation, Austin Police Officer Desiree Small was on South
Congress Avenue posing as a prostitute.  She was wired for sound, and other officers nearby made
a videotape recording of the encounter that resulted in appellant's arrest.  At about 11:00 p.m.,
appellant and a male passenger drove past Small.  Appellant came back and talked to Small and
then drove away.  Appellant soon returned and discussed with Small a sexual act and the fee Small
would charge.  Small, using street language, offered to perform oral sex on appellant for $15. 
Small testified that appellant agreed to her proposition.  Small told appellant that because of police
activity on the street, she would meet him behind a building nearby.  Small then signaled the "take
down" officers, who arrested appellant.
	By information the State charged:

LEO WATSON, the Defendant, on or about the 18th day of June, A.D. 1997, did
then and there knowingly offer and agree to engage in sexual conduct, to wit:
deviate sexual intercourse, in that the Defendant offered and agreed to have D.
SMALL contact D. SMALL's mouth with the genitals of the Defendant, for a
fee . . . .


	Appellant declared in the trial court and has repeated on appeal that he is not
relying on the defense of entrapment.  However, appellant argues that Small's admission that she
offered to perform oral sex on him for a fee was an admission that she violated the law, and
therefore, any evidence obtained by her unlawful act was not admissible against him.
	A person commits the offense of prostitution if he or she offers to engage or agrees
to engage in sexual conduct for a fee.  See Tex. Penal Code Ann. § 43.02; Mattias v. State, 731
S.W.2d 936, 937 (Tex. Crim. App. 1987) (intent to consummate the act not essential).  Evidence
obtained by an officer or other person in violation of the laws of this State shall not be admitted
in evidence against an accused in the trial of any criminal case.  See Tex. Code Crim. Proc. Ann.
art. 38.23(a) (West Supp. 2000).  Article 38.23(a) is usually invoked by claims that confessions
were unlawfully obtained and claims that objects, such as contraband, were obtained by unlawful
search and seizure.
	On its face, appellant's argument is appealing.  However, appellant fails to
recognize and to take into account the purpose and proper application of the exclusionary statute. 
Courts have held that the exclusionary statute, Article 38.23, may not be invoked for statutory
violations unrelated to its purpose.  See Roy v. State, 608 S.W.2d 645, 651-52 (Tex. Crim. App.
1980) (violation Tex. Bus. Corp. Act Ann. art. 36.10); Reeves v. State, 969 S.W.2d 471, 486
(Tex. App.--Waco 1998, pet. ref'd) (violation Tex. Code Crim. Proc. Ann. art. 18.10); Lane v.
State, 951 S.W.2d 242, 243 (Tex. App.--Austin 1997, no pet.) (violation Tex. Transp. Code Ann.
§§ 724.001, .012); Carroll v. State, 911 S.W.2d 210, 221 (Tex. App.--Austin 1995, no pet.)
(violation Tex. Penal Code Ann. § 30.05); Fisher v. State, 839 S.W.2d 463, 469 (Tex.
App.--Dallas 1992, no pet.) (violation Tex. Health & Safety Code Ann. § 481.159); Lopez v.
State, 817 S.W.2d 150, 151 (Tex. App.--El Paso 1991, no pet.) (violation Tex. Health & Safety
Code Ann. § 481.159); Stockton v. State, 756 S.W.2d 873, 874 (Tex. App.--Austin 1988, no pet.)
(violation Tex. Educ. Code Ann. §§ 21.031, .040).
	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, No. 1300-98, slip op. at 5 (Tex. Crim. App. Jan 12,
2000) (citing Fuller v. State, 829 S.W.2d 191, 201-02 (Tex. Crim. App. 1992)).
	"Article 38.23(a) treats 'state action' and 'private action' the same or on an equal
footing."  Chavez, No. 1300098, slip op. at 7 (citing Johnson v. State, 939 S.W.2d 586, 587-88
(Tex. Crim. App. 1996)).  Article 38.23(a) applies to the acts of an "other person" as well as to
the acts of an officer.  It would not seem logical that appellant could successfully argue that if
Small had been a real prostitute, an "other person," who offered to perform a sexual act with him
for a fee to which he agreed, that her testimony would be inadmissible because she violated the
law.
	In this case Officer Small's acts as a decoy did not violate appellant's statutory
rights any more than if she were a real prostitute, an "other person."  Regardless of whether
Officer Small's actions were a violation of the law, she did not violate appellant's constitutional
or statutory rights.  "Given the usage of 'obtained' in Article 38.23, the plain language of the
statute unambiguously supports the holding that evidence is not obtained in violation of the law
by virtue of the fact that a police officer illegally participates in the activity constituting the
crime."  Chavez, No. 1300-98, slip op. at 3 (Keller J., concurring).  The trial court did not err
in overruling appellant's objection to the admission of Officer Small's testimony or the admission
of the videotape made by other officers.  Appellant's point of error is overruled.


	The judgment is affirmed.


  
 Carl E. F. Dally, Justice
Before Justices Kidd, Yeakel and Dally*
Affirmed
Filed:   January 21, 2000
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*	Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

 Code Ann. § 481.159); Lopez v.
State, 817 S.W.2d 150, 151 (Tex. App.--El Paso 1991, no pet.) (violation Tex. Health & Safety
Code Ann. § 481.159); Stockton v. State, 756 S.W.2d 873, 874 (Tex. App.--Austin 1988, no pet.)
(violation Tex. Educ. Code Ann. §§ 21.031, .040).
	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, No. 1300-98, slip op. at 5 (Tex. Crim. App. Jan 12,
2000) (citing Fuller v. State, 829 S.W.2d 191, 201-02 (Tex. Crim. App. 1992)).
	"Article 38.23(a) treats 'state action' and 'private action' the same or on an equal
footing."  Chavez, No. 1300098, slip op. at 7 (citing Johnson v. State, 939 S.W.2d 586, 587-88
(Tex. Crim. App. 1996)).  Article 38.23(a) applies to the acts of an "other person" as well as to
the acts of an officer.  It would not seem logical that appellant could successfully argue that if
Small had been a real prostitute, an "other person," who offered to perform a sexual act with him
for a fee to which he agreed, that her testimony would be inadmissible because she violated the
law.
	In this case Officer Small's acts as a decoy did not violate appellant's statutory
rights any more than if she were a real prostitute, an "other person."  Regardless of whether
Officer Small's actions were a violation of the law, she did not violate appellant's constitutional
or statutory rights.  "Given the usage of 'obtained' in Article 38.23, the plain language of the
statute unambiguously supports the holding that evidence is not obtained in violation of the law
by virtue of the fact that a police officer illegally participates in the activity constituting the
crime."  Chavez, No. 1300-98, slip op. at 3 (Keller J., concurring).  The trial court did not err
in overruling appellant's objection to the admission of Officer Small's testimony or the admission
of the videotape made by other officers.  Appellant's point of error is overruled.


	The judgment is affirmed.


  
 Carl E. F. Dally, Justice
Before Justices Kidd, Yeakel and Dally*
Affirmed
Filed:   January 21, 2000
Publish












