Prostitution. It’s the world’s oldest profession. In all likelihood, Mary Magdeline, of biblical fame, was a prostitute. Prostitution is legal in Holland, and several parts of the world. Prostitution is even legal just outside of Las Vagas, Nevada. But here in Texas prostitution remains a crime.
Under Texas Code of criminal Procedure 43.02 Prostitution, a person can be convicted of prostitution if a person knowingly offers to engage, agrees to engage, or engages in sexual conduct for a fee. A person can be charged with prostitution if the was the person ‘the prostitute’ or ‘the John.’ Prostitution is normally a Class B misdemeanor, which means a person can be sent to county jail for up to 180 days and fined up to $2,000. If a person has previously been convicted of prostitution, they can be charged with a Class A misdemeanor prostitution if the person has been convicted once or twice before, meaning the person can be sent to county jail for up to one year, and/or fined up to $4,000. If a person has three prior convictions, the alleged prostitute can be charged with felony prostitution. Felony prostitution is a state jail felony whereby a person can be sent to state jail from 180 days to two years, and/or fined up to $10,000.
CHARGING FELONY PROSTITUTION
In order to charge a suspect with misdemeanor prostitution, the state simply needs to file an information, which is a sworn affidavit alleging basic facts and elements. In order to charge a suspect with felony prostitution, the state must file an indictment. Every person charged with an a felony must be charged by indictment. In order for the state to file an indictment, the grand jury must find that there is probable cause to charge the suspect.
When the state files an indictment, the government must basically prove all of the fact or allegations of the indictment. So, the state must prove that a person, on or near a specific day agreed to have sex with another person, or had sex with another person, for money. Sometimes the state will include in the indictment the particular person the defendant agreed to have sex with. If the state does this, the state must prove beyond all reasonable doubt that the person alleged in the indictment was the person who was solicited.
Sometimes the state gets this wrong. In other words, the claim that person A was solicited, when often it is person B.
PROSTITUTION INVESTIGATIONS & VICE COPS
We have all heard about vice cops, right? We have Miami VICE, Bad Boys, and many more that focus on vice officers. Vice officers are a special unit of specially trained officers that investigate sex, human trafficking, drugs, gambling, and alcohol. Vice cops go undercover and stay undercover. Their main job requirement is to be good at lying; to be good at deception; to fit in with people who are very skeptical of them. Being a vice cop can be a dangerous job, but someone has to do it, and the ones that do it have a pretty sweet life.
Vice cops get to go out drinking, dancing, sell drugs, go to strip clubs, spas, massage parlors, talk to prostitutes, stay up late hours and party hard. Do you think that vice cops pay for all their fun times out of their own pockets? No Way! They use money from the police department. Do you think vice cops enjoy the perks of their line of work? Even though they claim they don’t ever get massages or drink the booze, you bet they do!
“Are you wearing a wire?” We have all heard that line in a movie or crime drama TV show before. That line refers to that used to be a wire to record conversations. Now-a-days, cops have access to way better technology. If you have seen it on a spy move, it probably exists and the police have it. Or, at least, they ought to have it. And if they don’t this is a great place for cross examination and jury selection: an incomplete investigation and lack of the best surveillance tools. Cops have body cams, camera in hats, camera in buttons, camera in tie clips, cameras that can go into a dome light, cameras that can go into an air vent. The same applies for audio recording, in addition to cell phone voice recorders, digital voice recorders, tape recorders, ear pieces, and watch voice recorders.
In the rare case where that juicy evidence does not exist, not only is there something to work with, but something is up. This is a case that is primed to take to trial.
A FELONY PROSTITUTION CLIENT
Several of my mentors always advise that defense lawyers need to look at the charging instrument, because they are sometimes wrong. This practice may seem like a waste of time, that is, until your client’s indictment alleges facts that cannot be proven. In one particular case of mine, this was true. The state alleged in the indictment that officer A was the solicited undercover vice cop, when according to the offense report, the mobile data terminal transmissions, and my clients account, it was officer B that was solicited. So we sat on this. There wasn’t much evidence in this case and I had a great theme: This case is about Suspicions, Assumptions, and Arrogance. Up came the states trial notices and motions, and the prosecutor did not catch the flaw. Next came the first trial setting, and the prosecutor did not catch the flaw. We were ready to go to trial, but another more important trial was going. So the judge decided it would be a nice idea to put my client on bond supervisions, which meant she had to pass a drug test. Of course, you know, she would FAIL this drug test and off to jail she would go.
We come back for the second trial setting and the state still doesn’t notice it. We are ready to go to trial, and then I learn that the officer that was allegedly solicited, according the the indictment was in a bad wreck and would not be able to testify for two weeks. The judge then set the case for trial in two fucking months. Faced with sitting in jail for two months or just one month following a misdemeanor plea deal, my client took the misdemeanor jail.
I have a few final points to make: While you are on bond, DON’T BREAK THE FUCKING LAW. If you do, be honest with your damn lawyer about it. Second, I FUCKING hate when courts force my clients to plea. That is exactly what the judge in this case did by setting the case two months out. This is total bullshit and should not happen, but if you just FOLLOW THE LAW WHILE ON BOND, you got nothing to worry about.