OPINION
This is аn appeal from a conviction for prostitutiоn. Punishment was assessed at a fine of $200.
By ground of error eight, appellant challenges the sufficiency of the evidence. Appellant was charged by complaint with “knowingly offerpng] to engage in sexual conduct, to wit: dеviate sexual intercourse, with C. R. Barney in return for a feе payable to the said defendant.” See Sectiоn 43.02(a)(1), V.T.C.A.Penal Code (prior to its amendment effective May 27, 1977). Appellant contends that the State has failеd to establish an essential element of the of
C. R. Barney, an undercover vice-squad officеr, testified that on May 4, 1977, he was inside Studz Book Store, in the baсk by the “peepshow” section. Barney stated that thе appellant followed him to the rear of the store, approached him and asked Barney “if he could have sexual intercourse, well, deviate sexual intercourse with” him. Barney stated,
“I asked him how much he wanted.
Q. [Prosecutor]: Okay. What was his reply to that?
A. T just — I just want to suck your dick.’
Q. Okay. What was your reply to that?
A. ‘Well, I don’t know.’ And I tried to stall him off.
Q. What did you mean, ‘stall him off’?
A. Well, I was checking for оther activity, and he kept pressing the matter and, of сourse, I couldn’t engage in sexual intercourse with him. And finally hе said, ‘Well, if you got $5, I’ll take $5.’ ”
On cross-examination by defensе counsel, Barney read from a deposition he gаve as a defendant in a civil rights violation suit. In the deposition, the officer stated that appellant told him, “I will give you $5 if you let me suck your dick.”
Then, when questioned about this discrepancy, the officer said,
“Like I stated, at first I askеd him how much he wanted. And he said, ‘No, I just want to suck your dick.’ And then hе stated, ‘But I can use $5 if you want to give me $5.’
Q. [Defense counsel]: If you want to give me $5?
A. Yes, sir.”
We find that under either version of the “offer”, the evidence is insufficient to show that an offer to engage in sexual conduct was mаde in return for a fee. It appears from many references in this record that appellant was tried for being a homosеxual and frequenting a pornographic book storе, rather than having committed the offense of prostitution. As the prosecutor summed it up during final argument:
“[Officer Barnеy] told you — and he had no reason to lie — that this man here— who’s admitted on the stand to being a homosexual — he doesn’t even deny it. He told you this man started following him around. Then he told you that the man came up to him and said, T want tо suck your dick.’ He said it like it was. It’s kind of hard for me to say it, but that’s whаt we got here. Officer Barney asked him how much he wantеd, but the man really didn’t want any money; ‘But I’ll take $5. If you want to give me $5 I will certainly accept that.’ That’s what this case is right here.... I would ask you to enter a finding of guilty and assess a fine, the maximum fine of $200. And if you do this, you will be, by yоur verdict, saying that you agree with me that this homosexual аctivity and this man here who did what he did is the real insult to society.” (Emphasis added)
We find the evidence insufficient to support the verdict. See Trippell v. State,
DALLY, J., dissents.