Opinion
NO. 01-16-00688-CR
07-10-2018
ROBERT BRIAN REAGAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court Galveston County, Texas
Trial Court Case No. 15CR1535
MEMORANDUM OPINION
Appellant Robert Brian Reagan was indicted for online solicitation of a minor. TEX. PENAL CODE § 33.021(c). He moved for dismissal of the case based on a defense of entrapment as a matter of law. After a hearing, the trial court denied the motion to dismiss, and Reagan pleaded guilty. As a condition of his plea, he maintained the right to appeal the denial of his pretrial motion. The trial court deferred adjudication and placed him on community supervision for eight years. On appeal, Reagan argues that the trial court erred by failing to find he was entrapped as a matter of law.
Because Reagan denied having the requisite intent to commit the offense of online solicitation, the trial court did not err by denying his motion to dismiss. We affirm.
Background
Appellant Robert Brian Reagan placed an advertisement on Craigslist which read: "Any young girls want their clean shaved p*ssy ate? I'm a 35-year-old male, want to eat some p*ssy bad." Det. Arnold of the Pearland Police Department responded to the ad, and the two then began communicating over a phone messaging application. Det. Arnold identified himself as a fifteen-year-old girl, and Reagan responded: "If u r that young all we can do is talk."
Reagan suggested that they "[m]eet and see where it goes," and he attempted several times to confirm that the person with whom he was communicating was not "a cop." Det. Arnold denied being a police officer and asked Reagan if he wanted anything in return for oral sex. Reagan said no, but he insisted they discuss the details in person. The two agreed to meet, and Det. Arnold provided Reagan the address to an apartment. When Reagan arrived, he was arrested and charged with online solicitation of a minor.
After a grand jury indicted him for the offense, Reagan requested a hearing on his motion to dismiss the case based on entrapment as a matter of law. At the hearing, he admitted that he had posted the sexually explicit Craigslist ad. He claimed that he was looking for someone in her thirties, not a minor, when he referenced "young girls." He also stated that he did not believe the person with whom he communicated was a minor, even though the person identified herself as a fifteen-year-old. He testified that he never planned to have sex with the person if she was really fifteen.
The following exchange took place during the State's cross-examination:
State: So are you saying then that you never did have the intent to ever go through with anything sexual with anyone under age?
Reagan: No, sir.
State: Okay. So you're basically denying the offense entirely then?
Reagan: I would never do anything with a minor.
State: Okay. You don't dispute that there was an agreement to meet in person, correct?
Reagan: Yes, sir.
State: You're just saying that there was no intent, that it was never going to happen, you were never going to have sex if it turned out that that person really was only 15?
Reagan: Yes.After hearing additional testimony from Det. Arnold, the court denied the motion to dismiss. Reagan then pleaded guilty to online solicitation of a minor, preserving his right to appeal the denial of the pretrial motion to dismiss.
Analysis
In his sole issue, Reagan asserts that the trial court erred by denying his motion to dismiss based on the defense of entrapment. We review such a ruling to determine whether "any rational trier of fact could conclude that the undisputed facts failed to establish all of the elements of entrapment." Hernandez v. State, 161 S.W.3d 491, 500 (Tex. Crim. App. 2005).
"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." TEX. PENAL CODE § 8.06(a). "Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment." Id. "Normally, a defense such as entrapment is a question for the jury to decide because it is determined largely by weighing facts and assessing credibility." Hernandez, 161 S.W.3d at 498. To raise the defense of entrapment, the defendant bears the burden of producing evidence to establish each element of the defense, which requires a prima facie demonstration that:
1) he engaged in the conduct charged;
2) because he was induced to do so by a law enforcement agent;Id. at 497; see also TEX. PENAL CODE § 8.06(a).
3) who used persuasion or other means; and
4) those means were likely to cause persons to commit the offense.
A defendant may raise the legal issue of entrapment before trial. TEX. CODE CRIM. PROC. art. 28.01, § 1(9). Pretrial adjudication of an entrapment defense is appropriate when the underlying facts of the defense are undisputed, and the sole issue is whether there was entrapment as a matter of law based on the application of the law to those undisputed facts. Hernandez, 161 S.W.3d at 499. In a pretrial hearing, the defendant has the burden to prove the elements of entrapment beyond a reasonable doubt. Id. When a defendant establishes entrapment as a matter of law "with conflict-free, uncontradicted, uncontested or undisputed evidence," he is entitled to pretrial dismissal of the charges. Id. (emphasis in original). The State has no burden of proof, and it is only required to raise an issue of conflicting fact to defeat a pretrial motion.
A defendant who denies he committed the offense is not entitled to the defense of entrapment. Melton v. State, 713 S.W.2d 107, 112 (Tex. Crim. App. 1986); Norman v. State, 588 S.W.2d 340, 345 (Tex. Crim. App. 1979). "This is because a denial of the commission of the offense is inconsistent with entrapment, as this defense assumes that the offense was committed." Norman, 588 S.W.2d at 345 (citing Stephens v. State, 522 S.W.2d 924, 926 (Tex. Crim. App. 1975)); see also TEX. PENAL CODE § 8.06(a); Hernandez, 161 S.W.3d at 497.
During the pretrial hearing, Reagan denied that he believed the person he was communicating with was a minor, or that he ever intended to engage in sexual activity with a minor. The record thus demonstrates that Reagan denied having the requisite intent to commit the offense, see TEX. PENAL CODE § 33.021(c), and therefore he was not entitled to a pretrial adjudication that he was entrapped as a matter of law. See Abad v. State, No. 01-00-01204-CR, 2002 WL 1227195, at *4 (Tex. App.—Houston [1st Dist.] June 6, 2002, pet. ref'd) (mem. op., not designated for publication) (holding that trial court did not err in denying pretrial motion to dismiss drug possession case for entrapment when defendant testified that he did not know he possessed cocaine); see also Zamora v. State, 508 S.W.2d 819, 822 (Tex. Crim. App. 1974) (holding defendant who denied requisite knowledge of offense was not entitled to entrapment defense). Accordingly, we overrule the sole issue raised in this appeal.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice Panel consists of Justices Higley, Massengale, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).