Opinion
No. 06-02-00163-CR
Date Submitted: September 26, 2003.
Date Decided: September 30, 2003. DO NOT PUBLISH.
On Appeal from the 102nd Judicial District Court, Red River County, Texas, Trial Court No. 002-CR-00146.
Before Morriss, C.J., Ross and Carter, JJ.
MEMORANDUM OPINION
On the tape recording of the May 6, 2002, conversation between Daniel Garza, III, and undercover officer Terry Bee, Garza asks Bee to kill Bob Pyaett, a local businessman, and Val Varley, the District Attorney of Red River County, Texas. Based on this conversation, Garza was convicted for solicitation of murder, and a jury assessed his punishment at five years' imprisonment and an $8,000.00 fine, recommending that Garza be placed on community supervision. Garza contends on appeal that the trial court erred by refusing to dismiss the indictment in the face of what Garza contends is entrapment by law enforcement officials. The evidence shows that local law enforcement officials listened in on a telephone conversation between Garza and his mother, Rosa, who was in jail at the time. Garza told Rosa in that conversation that his grandmother had told him about an uncle in Houston with Mafia connections who could come "help us on Bob . . . and Val Varley," and that "nobody would ever find out because . . . the Mafia . . . get away with anything they do." The officials thought Garza and Rosa were talking about getting someone from Houston to kill Pyaett and Varley. The local officials recruited Bee to talk to Garza and give him the opportunity, if he had made that telephone call, to hire Bee to kill Pyaett and Varley. The background situation is that Rosa had worked in Pyeatt's convenience store for eighteen years before Pyeatt fired her, alleging that she had stolen over $40,000.00 from the store. She was evidently convicted on a guilty plea and placed on community supervision. Then Garza and Rosa, who were operating a tobacco store, imported cigarettes from Oklahoma for Texas resale, evidently without paying Texas taxes. Varley was taking steps to revoke her community supervision at the time of the conversation.
Analysis
Section 8.06 of the Texas Penal Code provides the definition and elements of entrapment. It reads:(a) It is a defense to prosecution that 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 (Vernon 2003). Procedurally, an accused is entitled to a pretrial determination of a claim of entrapment. Tex. Code Crim. Proc. Ann. art. 28.01, § 1(9) (Vernon 1989). When making its determination, the trial court must follow the provisions of Section 2.03 of the Texas Penal Code. Tex. Pen. Code Ann. § 2.03 (Vernon 2003); see Taylor v. State, 886 S.W.2d 262, 265 (Tex.Crim.App. 1994). At the pretrial hearing, the defendant has the burden of producing evidence raising the defense, after which the burden of persuasion falls on the State to disprove entrapment beyond a reasonable doubt. Tex. Pen. Code Ann. § 2.03(d); England v. State, 887 S.W.2d 902, 908-09 (Tex.Crim.App. 1994); Taylor, 886 S.W.2d at 265. When entrapment is in issue, the trial court, as the trier of fact, must weigh the evidence and determine whether the defendant was entrapped. Soto v. State, 681 S.W.2d 602, 604 (Tex.Crim.App. 1984); Bush v. State, 611 S.W.2d 428, 431 (Tex.Crim.App. 1980). When the evidence on entrapment is in conflict, the trial court does not err in overruling a motion to dismiss. Cook v. State, 646 S.W.2d 952 (Tex.Crim.App. 1983). Therefore, on appeal, we look to see if the evidence was legally sufficient to support the trial court's determination. Flores v. State, 84 S.W.3d 675, 681 (Tex.App. Houston [1st Dist.] 2002, pet. ref'd); Torres v. State, 980 S.W.2d 873, 875 (Tex.App. San Antonio 1998, no pet.). In this case, there is no evidence that the police persuaded Garza to solicit murder. The evidence shows that Bee, the undercover officer, approached Garza, allowed Garza to conclude Bee had come from Houston at a family request, and asked Garza to specify what he wanted from Bee. The conversation provides evidence that Garza sought to have Varley and Pyeatt killed. Entrapment exists if the criminal intent originates in the mind of the police agent and the agent then induces the accused to commit the offense. Torres, 980 S.W.2d at 875. Entrapment does not exist where the police agent merely furnishes the opportunity for the commission of the offense. Rodriguez v. State, 662 S.W.2d 352, 355 (Tex.Crim.App. 1984); Barnes v. State, 70 S.W.3d 294, 304 (Tex.App. Fort Worth 2002, pet. ref'd); Torres, 980 S.W.2d at 875-76. In this case, there is evidence that Bee merely furnished an opportunity for Garza to explain that he wanted to have two individuals killed. The fact that they discussed the transaction in circuitous terms does not show that Garza was not seeking the act, but instead that he was at least to some degree circumspect in asking blatantly to have a person killed. There is some evidence to support the court's ruling. The point of error is therefore overruled. We affirm the judgment.