Opinion
No. 01-09-00561-CR
Opinion issued October 7, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 180th District Court Harris County Texas, Trial Court Cause No. 1211100.
Panel consists of Justices JENNINGS, ALCALA, and SHARP.
MEMORANDUM OPINION
Appellant, Stanley Lanier Roberts, appeals a judgment convicting him for unlawful delivery of a controlled substance, cocaine, in an amount less than one gram. See TEX. HEALTH SAFETY CODE ANN. § 481.112(b) (Vernon 2010). Appellant pleaded not guilty. A jury found appellant guilty, and upon a plea of true to prior conviction enhancements, the judge assessed his punishment at six years in prison. In his sole issue on appeal, appellant contends that the trial court erred by not charging the jury with an entrapment instruction. We conclude that the trial court properly refused to give an entrapment instruction because the evidence failed to raise the issue of entrapment. We, therefore, affirm.
Background
One afternoon, Police Officer O'Brien, working undercover, pulled into a restaurant parking lot where appellant was standing outside. O'Brien did not know the appellant. O'Brien waved at appellant, indicating he wanted him to come up to the truck. When appellant approached, O'Brien, pretending to be a drug addict, asked him if he knew where he could "score some hard." The term "hard" is street slang for crack cocaine. O'Brien and appellant had a brief conversation where O'Brien told appellant how desperate he was. During the conversation, O'Brien, told appellant that he was "down on [his] luck," and in need of a "hit." As O'Brien placed his hand on his truck's gear shift to drive away, appellant asked if O'Brien would pay him $10 in exchange for help in finding some drugs. After O'Brien agreed, appellant entered the truck and directed O'Brien to a house a few blocks away. Once there, O'Brien gave appellant $20 to buy the drugs, and appellant went inside. Moments later, appellant returned, entered the truck, and handed O'Brien two rocks of crack cocaine. O'Brien soon gave the "bust signal" to his fellow officers, and he and appellant were stopped a short distance down the road. Appellant was arrested and searched, but no marked money or drugs were found on him.Denial of Entrapment Instruction in Jury Charge
In his sole issue on appeal, appellant contends that the trial court erred in denying his request for a jury instruction on the defensive issue of entrapment.A. Applicable Law
It is a defense to prosecution that the defendant 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. TEX. PENAL CODE ANN. § 8.06(a) (Vernon 2003). Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Id. The entrapment defense consists of two tests; the first is subjective, and the second is objective. England v. State, 887 S.W.2d 902, 910 (Tex. Crim. App. 1994). The subjective test is satisfied only if, but for the police's inducing conduct, the defendant would not have committed the crime. Id. at 912. The objective test is satisfied only if the law enforcement agent's conduct "was such as to cause an ordinarily law-abiding person of average resistance nevertheless to commit the offense." Id. at 914; Flores v. State, 84 S.W.3d 675, 682 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). The amount of persuasion used to induce an ordinary, law-abiding person of average resistance who is not pre-disposed to commit the offense will depend on the particular facts of each case. Barnes v. State, 70 S.W.3d 294, 307 (Tex. App.-Fort Worth 2002, pet. ref'd); Torres v. State, 980 S.W.2d 873, 876 (Tex. App.-San Antonio 1998, no pet.); Sebesta v. State, 783 S.W.2d 811, 814 (Tex. App.-Houston [1st Dist.] 1990, pet. ref'd). A trial court must include an entrapment instruction in the jury charge if evidence is admitted supporting each element of the defense, whether that evidence is weak, contradicted, or appears to the trial court to be lacking credibility. Denman v. State, 193 S.W.3d 129, 134 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); see TEX. PENAL CODE ANN. § 2.03(c); Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007). To be entitled to an entrapment instruction, the defendant has the burden of production to support the defense. Hernandez v. State, 161 S.W.3d 491, 497 (Tex. Crim. App. 2005); see Shaw, 243 S.W.3d at 657. The defendant, however, need not actually proffer the evidence. See Shaw, 243 S.W.3d at 657-58. So long as there is some evidence admitted, from whatever source, supporting each element of the defense, the defendant has satisfied his burden. See id. The defendant may plead "not guilty" to the offense, not take the stand, and may still be entitled to an entrapment defense. See Melton v. State, 713 S.W.2d 107, 112 (Tex. Crim. App. 1986). Where the defendant, however, presents evidence negating any element of the offense charged, including culpable mental state, he is not entitled to an instruction on the entrapment defense. Id.; see Shaw, 243 S.W.3d at 659; Ex Parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004).B. Analysis
Appellant contends that evidence of entrapment was raised by O'Brien's testimony. We conclude appellant failed to establish both the subjective and objective tests.1. Subjective Test
Appellant suggests that O'Brien's story, that he was a drug addict in need of a hit, could have appealed to appellant's altruistic desire to help someone down on his luck. Appellant, however, points to no evidence in the record that he was actually induced by that desire. See England, 887 S.W.2d at 913-14. Moreover, the record demonstrates that O'Brien's story did not actually induce appellant to agree to deliver the drugs. Rather than showing that appellant helped O'Brien for an altruistic motive, the record shows that appellant helped O'Brien only after O'Brien agreed to pay him $10. The record contains no evidence tending to show that the appellant was particularly susceptible to being induced by the police conduct. See id. at 909. There is nothing to suggest that he would not have delivered crack cocaine had it been any other consumer that day, rather than O'Brien. See id. at 912 (defendant actually induced only if but for police's inducing conduct, defendant would not have otherwise committed crime).2. Objective Test
The record contains no evidence of the objective test necessary to raise the issue of entrapment. The kind of deception used by O'Brien was not persuasive or coercive. Rather, the deception, imitating the purchasing behavior of a drug addict, was incident to providing an opportunity to commit the offense charged. See Estrada v. State, 810 S.W.2d 447, 448 (Tex. App.-San Antonio 1991, pet. ref'd) (evidence of offer to sell marihuana did not establish prima facie case of entrapment necessary to entitle defendant to entrapment instruction); Ramos v. State, 632 S.W.2d 688, 691 (Tex. App.-Amarillo 1982, no pet.) (undercover request for marihuana from defendant, not then in possession, is mere provision of opportunity to commit charged offense, not entrapment). The legislature has declared that merely being provided an opportunity to commit an offense is not entrapment. See TEX. PENAL CODE ANN. § 8.06(a). O'Brien's use of ordinary deception fails to establish entrapment. See id.; Estrada, 810 S.W.2d at 448. "With respect to the objective [test], prohibited police conduct usually includes, but is not limited to, matters such as extreme pleas of desperate illness in drug cases, appeals based primarily on sympathy, pity, or close personal friendship, offers of inordinate sums of money; and other methods of persuasion which are likely to cause the otherwise unwilling person — rather than the ready, willing and anxious person — to commit an offense." Flores, 84 S.W.3d at 682; Sebesta, 783 S.W.2d at 814 (quoting Ramos, 632 S.W.2d at 691 (Tex. App.-Amarillo 1982, no pet.)). The record shows that during cross-examination, O'Brien testified as follows:[Appellant's attorney]: And when he got in your car, you were comfortable that he believed that you were a drug addict, didn't you?
[O'Brien]: Yes, sir.
[Appellant's attorney]: In that short conversation do you recall talking to him about how down on your luck you were?
[O'Brien]: Yes, probably so.
[Appellant's attorney]: And how desperate you were?
[O'Brien]: Yes, sir.
[Appellant's attorney]: Okay. So you were trying to convince him that he ought to help you. Didn't you try to do that?
[O'Brien]: No.
[Appellant's attorney]: But you did tell him you were down on your luck?
[O'Brien]: Yes, sir.
[Appellant's attorney]: And that you needed some drugs?
[O'Brien]: Yes, sir.
. . . .
[Appellant's attorney]: You told him this is what I'm looking for?
[O'Brien]: Yes, sir.
[Appellant's attorney]: And then you convinced him to take you to get some, didn't you?
[O'Brien]: I did not convince him.The record shows that O'Brien did not use persuasion or other means likely to cause persons to commit the offense and his conduct merely afforded appellant an opportunity to commit the offense. See TEX. PENAL CODE ANN. § 8.06(a). O'Brien expressly testified that he did not convince appellant to take him to get the cocaine. Rather, the evidence undisputedly shows that, as O'Brien was placing his hand on the gear shift to leave the location, appellant asked O'Brien for money in exchange for help to acquire the cocaine. Although the record does show that O'Brien led appellant to believe he was a desperate drug addict down on his luck and in need of a hit, O'Brien's conduct did not objectively rise to the level of constituting an extreme plea of desperate illness or persuasion likely to cause the otherwise unwilling person — rather than the ready, willing and anxious person — to commit an offense. See Flores, 84 S.W.3d at 682. The $10 sum of money offered to appellant would not have induced an ordinary law abiding citizen to commit a felony. Cf. January v. State, 720 S.W.2d 207, 210 (Tex. App.-Houston [14th Dist.] 1986, no pet.) (potential $50,000 profit by manufacturing methamphetamines did not meet objective test, it constituted mere opportunity to commit offense). The conversation was brief, with little pressure, and O'Brien was preparing to leave when appellant agreed to help. Cf. Sebesta, 783 S.W.2d at 814 (repeated, annoying telephone calls not sufficient to establish entrapment). The record contains no evidence of persuasive or otherwise improper police conduct that a jury could rationally find to be capable of causing an ordinarily law-abiding person of average resistance nevertheless to commit the offense. See England, 887 S.W.2d at 914; Flores, 84 S.W.3d at 682. We hold that appellant was not entitled to a jury instruction on entrapment as the record contains no evidence as to either the subjective or objective tests of the entrapment defense. See England, 887 S.W.2d at 913-14. Accordingly, we overrule appellant's sole issue.