Opinion
Nos. 05-04-01702-CR, 05-04-01703-CR, 05-04-01704-CR, 05-04-01705-CR, 05-04-01706-CR
Opinion issued April 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-34333-JM, F04-34334-JM, F04-34335-JM, F04-34336-JM, and F04-34337-JM. Affirmed.
Before Justices MORRIS, FITZGERALD, and RICHTER.
OPINION
Anton Cordell Ervin was convicted of three counts of delivery of one to four grams of cocaine, one count of possession with intent to deliver four to twenty grams of cocaine, and one count of possession of a firearm by a felon. The jury assessed his punishment at twenty-five years' confinement for each of the delivery counts, forty years for the possession with intent to deliver count, and ten years for the firearm possession count. On appeal, Ervin complains that the trial court erroneously refused to instruct the jury on the defense of entrapment in the four drug cases. Ervin also complains that he received ineffective assistance of counsel and that the State engaged in improper jury argument. For the reasons that follow, we affirm the trial court's judgment.
The delivery counts are numbered:
F04-34333-JM in the trial court and 05-04-01702-CR in this Court;
F04-34334-JM in the trial court and 05-04-01703-CR in this Court; and
F04-34335-JM in the trial court and 05-04-01704-CR in this Court.
The possession with intent to distribute count is numbered F04-34336-JM in the trial court and 05-04-01705-CR in this Court. Finally, the unlawful possession of a firearm count is numbered F04-34337-JM in the trial court and 05-04-01706-CR in this Court.
Jury Charge on Entrapment
In his first issue, Ervin argues that the trial court erroneously refused to submit the defense of entrapment to the jury in the four drug-related cases. Officer Kevin Dingledine of the Irving Police Department provided the key testimony at trial concerning the events leading up to Ervin's arrest. Dingledine worked as an undercover officer in the department's narcotics division. During the relevant investigations, he was posing as a warehouse worker who wanted to buy crack cocaine. In that guise, through a confidential informant, Dingledine met Ervin face-to-face. Ervin gave Dingledine his telephone number so that Dingledine could call him in the future and purchase cocaine. On January 6, 2004, Dingledine used that telephone number to contact Ervin and to arrange a cocaine purchase. Dingledine, equipped with a transmitting device, met with Ervin that day at a location Ervin suggested. At Ervin's request, Dingledine advanced him forty dollars because Ervin had run out of cocaine. Then Ervin's wife stayed with Dingledine until Ervin returned. Dingledine paid Ervin $120, and Ervin delivered crack cocaine in exchange for that money. Dingledine testified that he did not arrest Ervin at that time because he wanted to do further investigation to see if the contact with Ervin could lead the police "up the food chain" to other dealers. Dingledine telephoned Ervin again on January 7, 2004. Dingledine "ordered" two hundred dollars' worth of powder cocaine. The men arranged another meeting, again at a location suggested by Ervin. This time a man Ervin referred to as "the main guy" was in the car and spoke to Dingledine. Then, following Ervin's instructions, Dingledine put the money he brought in the trunk of the car and removed two bags containing cocaine. Once again, he transmitted the conversations to colleagues who recorded them. On January 30, 2004, Dingledine telephoned Ervin once again and arranged to purchase a "smaller" amount of cocaine. Dingledine arrived first at the agreed-upon meeting place (the same parking lot where the men had exchanged money and drugs on January 6); he was again equipped to transmit the exchange. Ervin arrived and got into Dingledine's car. In the course of their conversation, Dingledine told Ervin he was going to have $2500 on the following Monday, February 2. He asked Ervin what he could buy for that amount. According to Dingledine's testimony:He gave me a quantity that I could get for 2500. I don't remember what it was. I can't quite tell, but he said I can get that all powder, half powder, half hard in crack cocaine. It's up to me however I wanted it split up. He could bring both.The men then completed their planned sixty-dollar crack-cocaine deal in the car. On February 2, Ervin called Dingledine. Ervin asked whether Dingledine was interested in purchasing a large quantity of cocaine; Dingledine said he was, and they discussed a purchase of some five thousand dollars' worth, or half a pound of cocaine. Because Dingledine was not ready to do this large deal yet, he told Ervin he would have to get back with him the next day. Dingledine spoke with his colleagues in the narcotics division, and they decided to go ahead with the deal and to have Ervin arrested. On the afternoon of February 3, Dingledine telephoned Ervin and spoke to both Ervin and Ervin's supplier. Together they arranged for the deal to take place a couple of hours later, at the same location they had used twice before. Dingledine met with the tactical officers and narcotics officers who would be present; he was, as always, equipped to transmit the exchange. When Ervin arrived, he motioned for Dingledine to approach his vehicle. Dingledine got into the back seat and closed the door; another man Dingledine did not know was in the front seat of the car with Ervin. At Ervin's direction, the third man exited, walked to the trunk of the car and returned with two bags of what appeared to be crack cocaine. When the man attempted to pass the bags to Dingledine in the back seat, Ervin intercepted the bags and held them. Dingledine asked Ervin to weigh the drugs, which seemed to be approximately half the weight Dingledine had ordered. Ervin used Dingledine's scales and blamed the reading on the scales. Dingledine had arranged with Ervin for another individual to bring the money once he had seen the drugs in order to avoid the possibility of a "rip-off." Dingledine feigned an inability to make a cellular connection with that individual and announced he would step outside the car to make the call. At that point, Dingledine saw Ervin retrieve a Glock semiautomatic handgun and hand it to the third man with instructions to watch Dingledine. When Dingledine left the car he signaled the other officers, and Ervin was arrested. Ervin argues the first three drug transactions outlined above were initiated by Dingledine and that the officer "aggressively pursued" Ervin, inducing him to deliver the cocaine. As to the final transaction, Ervin argues the officer escalated his pursuit by increasing the amount of money involved in the transaction. Dingledine's "pursuit," Ervin assets without elaboration or support, would have induced an ordinarily law-abiding person to act similarly. The defense of entrapment is available when:
the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.Tex. Pen. Code Ann. § 8.06(a) (Vernon 2003) (emphasis added). To be entitled to submission, Ervin was required to produce evidence that: (1) Dingledine's conduct, viewed from the Ervin's subjective standpoint, induced him to commit the crime; and (2) the inducement was such that, viewed objectively, it would have caused an ordinarily law-abiding citizen of average resistance to commit the offense. See England v. State, 887 S.W.2d 902, 913-14 (Tex.Crim.App. 1994). We find no evidence in the record satisfying either prong of this test. It is true that the officer telephoned Ervin to make the first three contacts. However the record is clear that Ervin offered Dingledine his telephone number with the understanding that Dingledine could call Ervin if he wanted to purchase drugs. Indeed, when Dingledine arrived for the first transaction, Ervin announced he had run out of cocaine and needed to go get more. Had Ervin not wanted to go through with the transaction, he certainly had an excuse not to do so. But the record indicates — on his own initiative — Ervin took a payment from Dingledine and left his wife behind with the officer in order to assure the completion of the deal. Ervin then agreed to deliver drugs to Dingledine each time Dingledine called him with a request. The record contains absolutely no evidence indicating any of those calls — or the meetings that ensued — involved anything more than affording Ervin the opportunity to sell cocaine to an apparently willing buyer. See Tex. Pen. Code § 8.06(a). Ervin also points to the large amount of money involved in the final transaction. Dingledine did raise the possibility of a large-scale purchase during the January 30 meeting. However, the possibility was left open, and no arrangements were made except that Dingledine would call Ervin after the weekend or "[w]e'll talk about that later." Once again, had Ervin chosen to withdraw from the proposed large-scale transaction, he could have done so. But when the weekend had passed, it was Ervin who pursued the connection, calling and asking Dingledine whether he was interested in making a large purchase. The record lacks any evidence indicating Ervin could have subjectively believed he was induced to sell cocaine to Dingledine. The record also lacks evidence that any of the contacts between the men could, viewed objectively, have induced an ordinarily law-abiding citizen to sell cocaine to the officer. In the absence of such evidence, the trial court did not err in refusing to instruct the jury on the defense of entrapment. We decide Ervin's first issue against him.
Ineffective Assistance of Counsel
In his second issue, Ervin contends he received ineffective assistance of counsel. Appellant asserts his trial counsel was ineffective for failing to object to statements by Dingledine that Ervin had "two drug houses in South Dallas" where Ervin had "a lot of dope." To prevail on an ineffective assistance of counsel claim, appellant must prove by a preponderance of the evidence that: (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In most cases, a silent record will not overcome the strong presumption of reasonable assistance. Id. at 813-814. Ervin did not raise ineffective assistance of counsel in a motion for new trial. The record before us contains no discernible explanation from counsel of any reasons for not objecting, and counsel may have had legitimate, strategic reasons for not objecting to the relevant remarks. Consequently, we conclude the record is insufficient to support Ervin's complaint on direct appeal. We overrule his second issue.Improper Jury Argument
In his third issue, Ervin complains that the State engaged in improper jury argument during the punishment stage of the trial. Specifically, the prosecutor argued that some individuals "refuse to operate in lawful society" and that those individuals "need to be removed from society and put some place where they cannot hurt other people." The prosecutor stated:Now, the legislature has said that someone who has been convicted two times, two separate occasions for felony offenses and sentenced to the penitentiary, the minimum is 25 years up to life or 99 years. This man comes to you with four prior felony convictions. And you have to decide what is the appropriate sentence for that.
You know that since these four connected four drug offenses — pardon me, the five offenses including the UPF felon, any sentences he receive[s] will be running together, they won't be stacked.Ervin objected to the remarks, calling them "improper argument as to how the sentences will run." The trial court overruled the objection, stating "I think you-all covered that on voir dire." The discussion to which the judge referred occurred during the State's voir dire. A prospective juror asked whether the sentences for the five cases would "compound on top of each other." The prosecutor replied in relevant part:
[S]hould we get to punishment whatever cases go that far they will run concurrently, which means all sentences will run together. It's not going to be five years, plus five years, plus five years, whatever. If you say five years on all of them and — or five years on four of them and seven years on one, then the time would run together, it's not like it would be twelve years.Ervin raised no objection to this exchange at the time, nor does he complain of the exchange in this Court. Proper jury argument must address one or more of the following topics: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, or (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). However, we need not decide whether the State's argument in this case fell within one of these categories. Improper argument is not prejudicial if it merely informs the jury of something it already knows. Austin v. Shampine, 948 S.W.2d 900, 910 (Tex.App.-Texarkana 1997, pet. withdrawn). In this case, jury members were informed during voir dire that if multiple sentences were assessed for the multiple charges faced by Ervin, those sentences would run concurrently. Thus, even if the State's argument were improper, any error was harmless. See id. We conclude Ervin's third issue is without merit.