Opinion
No. 05-02-00313-CR
Opinion issued October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F99-00847-RK. AFFIRMED
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
OPINION
Frank William Sullivan, Jr., appeals his conviction of delivery of a controlled substance. A jury convicted appellant, and the trial court assessed punishment at five years' confinement and a $4000 fine. In a single point of error, appellant argues the evidence is factually insufficient to prove he was not entrapped. We affirm the trial court's judgment. Dallas police detective Paul Ellzey testified he was introduced to appellant by Rebecca Brady, a confidential informant. The record contains appellant's testimony that Brady called him fifteen times wanting "dope," and she offered appellant sex if he would help her "do this deal." In a face-to-face conversation in December 1997, Ellzey and appellant negotiated the purchase of one ounce of amphetamine or methamphetamine for $1200. On December 10, 1997, Ellzey purchased twenty-nine grams of methamphetamine from appellant. Brady was present at the sale. In the days that followed, Ellzey called appellant four times and successfully conversed with appellant three times. Appellant asked for Ellzey's pager number "at least six times." Appellant agreed to deliver one ounce of cocaine and one ounce of methamphetamine to Ellzey for $2200. On January 12, 1998, Ellzey and appellant met again. This time, Ellzey did not bring Brady with him because he "didn't need her anymore." Appellant brought a full ounce of methamphetamine but only a half ounce of cocaine with him. Ellzey paid $1200 for the methamphetamine but refused to purchase the cocaine. Ellzey and appellant had an extended conversation regarding future drug transactions, prices, additional products, and additional quantities of products. Appellant gave Ellzey a quantity of cocaine "to give to the guy that [Ellzey] had told [appellant] was waiting on it as a sample to see if he liked the product." Appellant was subsequently charged with two counts of delivery of a controlled substance in connection with the December 10, 1997 and January 12, 1998 sales. A jury found appellant not guilty of the December 10, 1997 sale but convicted appellant of delivery of methamphetamine in an amount less than 200 grams in the January 12, 1998 sale. This appeal followed. In a single issue, appellant argues the evidence is factually insufficient to prove beyond a reasonable doubt that he was not entrapped. Defenses such as entrapment are subject to a factual sufficiency challenge in the event the defense has been submitted to a jury. Flores v. State, 84 S.W.3d 675, 681 n. 4 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); see Liggins v. State 979 S.W.2d 56, 60 (Tex.App.-Waco 1998, pet. ref'd). A factual sufficiency review focuses on whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). When, as here, a defendant presents a general defense at trial and is convicted, we must also apply the Johnson test to the jury's implicit rejection of the defense. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). We may not substitute our determination for that of the jury. See Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). The resolution of conflicts in the evidence and the credibility of witnesses lies within the exclusive province of the jury. See Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). To obtain a conviction in this case, the State had to prove appellant intentionally and knowingly delivered methamphetamine, a controlled substance, to P.V. Ellzey in an amount by aggregate weight including any adulterants or dilutants of 4 grams or more but less than 200 grams. See Tex. Health Safety Code Ann. §§ 481.102(6), 481.112(a) (Vernon 2003). It is a general defense to prosecution that the defendant committed the crime because he was induced to do so by a law enforcement officer using means likely to cause persons to commit the offense. Tex. Pen. Code Ann. § 8.06 (Vernon 2003); Flores, 84 S.W.3d at 682. The court submitted appellant's entrapment defense to the jury, but they implicitly rejected the defense by virtue of their guilty verdict. See Tucker v. State, 15 S.W.3d 229, 235 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Here, there is no dispute that appellant delivered an ounce of methamphetamine to Ellzey. Appellant admitted this on the witness stand. The only area of dispute is whether Ellzey coerced appellant into conducting the transaction. In support of his entrapment defense, appellant testified Ellzey called him "about five times" between the December drug sale and January 1998. Appellant testified the "biker" image Ellzey portrayed made him nervous and scared him. Appellant was also scared because Ellzey knew where appellant lived. Appellant testified he would not have made the January 12 drug transaction with Ellzey if Ellzey "hadn't done what he did prior to the dope deal." Regarding his contacts with Ellzey, appellant testified Ellzey said the drugs were sold already to a "new guy," and Ellzey didn't know what was going to happen if appellant did not "do this deal with him." Ellzey testified that he told appellant there was a "new guy" who wanted the drugs, and the drugs were sold. Ellzey testified he told appellant the "new guy" might think they were "trying to rip him" if the deal did not go through. Ellzey also testified that he and appellant had an extended conversation regarding future drug transactions, prices, additional products, and additional quantities of products. According to Ellzey's testimony, he only talked to appellant three times between the December drug sale and the January twelfth drug sale, and appellant asked for Ellzey's pager number "at least six times." The jury was free to disbelieve appellant's testimony that he would not have made the drug sale if Ellzey had not behaved as he did and believe the State's evidence that appellant willingly engaged in the drug sale on January 12, 1998. See Obigbo, 6 S.W.3d at 305. After reviewing the evidence, we conclude that the jury's guilty verdict and implicit rejection of appellant's entrapment defense is not greatly outweighed by contrary proof, and the proof supporting the jury's decision is not so obviously weak as to undermine confidence in the verdict. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's single issue. We affirm the trial court's judgment.