*1 And we still do recognize not know ultimate will confusing Court and diffi- Penry impact progeny.13 its path capi- cult constitutional it has created in jurisprudence.
tal Penry v. Furman D. opinions of Supreme When the Court inconsistent, conflicting only are our Furthermore, appellant contends that Pen- apply holdings course the most ry now jury allows the the same uncontrolled opinion recent guidance. and await further Furman. This is a discretion forbidden plurality Because the follows that I course proposition with which Justice Thomas concur in the appellant’s resolution of four- agrees. concurring In his opinion in Gra- points teenth and nineteenth of error. ham, Justice Thomas stated: comments, join I judgment With these ... rationality Whatever contribution to of the Court. Furman, consistency we made in we Penry. have taken back In pro- with
cess, upset we have the careful balance MALONEY, JJ., join OVERSTREET and through Texas had achieved use opinion. special its issues.
[*] [*] [*] [*] [*] [*] Part MILLER and I of this opinion CAMPBELL, and otherwise JJ., join join judgment of the Court. Penry very reintroduces risks that sought had through we to eliminate
simple directive that States in all events
provide capital rational standards for sen-
tencing. years, For 20 we have acknowl-
edged relationship between undirected
jury danger discretion and the of discrimi- natory sentencing danger we have held —a be inconsistent Eighth with the Amend- single
ment. holding When does so much many ENGLAND, violence to Appellant, so of this Court’s Trace Gene precedents settled area of fundamen- v. law, tal constitutional it cannot command force of stare decisis. view, my In Texas, Appellee. The STATE of Penry should be overruled. No. 762-93. Graham, at -, 911, 506 U.S. 113 S.Ct. at (Thomas, J., concurring). Texas, Court Appeals of Criminal En Banc. Penry Although agree I do not should overruled, I sympathize can with Justice 14, Sept. 1994. Thomas. I do Supreme not believe the Penry anticipated Court the broad effect capital jurisprudence
would have on or the ap-
difficulties state courts would face
plication.
can only hope
Supreme
I
-,
cases,
3027,
separate
penalty
(1993);
seven
death
113 S.Ct.
Allen C. appellant. Holmes, Jr., Harvey Dist. Atty., John B. J. Hudson, Stelter, Kimberly Aperauch and Houston, Attys., Dist. Hut- Asst. and Robert tash, Austin, Atty., for the State’s State. felony offense in Chambers probation for FOR OPINION ON STATE’S PETITION County, acting as an informant for was and DISCRETIONARY REVIEW county law enforcement several state CLINTON, Judge. amount of paid him certain agencies, who trial, jury appellant was convicted After a successfully every drug money for deal he LSD, delivery of of the offense of according to orchestrated, part at least years con punishment at five was assessed Early in their drugs involved. quantity of $10,000. In his sole finement and a fine testified, Ayala acquaintance, appeal point error on he contended money he bragged him how much “about allowing admission the trial court erred selling drugs.” They “talked making *4 offenses, os of several extraneous evidence ecstasy,” appel- and and ... ... about LSD entrapment. tensibly to his of rebut defense up could with Ayala told that he come lant and, agreed, on authori appeals The court of Ayala Understandably, interest- was these. original ty opinion on submis of this Court’s ed. (Tex. State, in Bush 428 sion S.W.2d Ayala together for Appellant and worked remanded for Cr.App.1980), reversed and employ left of several months before both State, England new trial. Appellant maintained catering business. 1993). court (Tex.App [1st] . —Houston Ayala “kept in quit part at because he least that, appeals predisposition of held because drugs bothering” obtaining for him about of is not an issue the defense chronology of followed him. The exact what 8.06, Code, § Penal evidence under V.T.C.A clear, entirely this much can be is not but extraneous misconduct is admissible admitted at trial gleaned from evidence guise of rebuttal evidence. certainty: part In latter reasonable with justice dissented, arguing that One March, Ayala telephoned appellant and case extraneous misconduct admitted this his, supply asked him to LSD a friend other, involved earlier transactions between Beaumont, college one student from K.C. appellant police agent and he contended fact, Baytown Anderson. In Anderson was him, entrapped and were admissible to show officer, working Ap- narcotics undercover. agent appellant, did not as re “induce” friend, Devine, pellant Ben who told called 8.06, quired to establish under appellant Appellant had no LSD. called he supra, merely provided opportu him an but Ayala and told him he could not accom- back nity to commit the crime. The courts Afterward, Ayala contin- modate Anderson. appeals Compare split on this issue. phone appellant to three ued two times Houston v. at 905 S.W.2d answering day, leaving messages his ma- on ref'd) 1987, pet. (Tex.App [14th] . —Houston “coming to Anderson was town chine that and at Gilliam S.W.2d something,” urging might ap- and and need pet.). (Tex.App no We . —Eastland Ayala ap- pellant to him testified call back. discretionary granted petition the State’s Ap- fact him twice. pellant did in call back question order to address review Ayala only that he talked to pellant admitted admissibility of misconduct extraneous occasions, eventually quit “a few” and on rebut defense Once, Ayala returning ap- reached his calls. (2) (5). 200(c)(1), Tex.RApp.Pro., Rule & job, appellant told him at his new but pellant Ayala call busy, and that should him
he was back, Ayala appellant would contact or that I. later. years old at the time Appellant, eighteen up May, Ayala stepped the number of offense, Ayala, years met Victor ten many ten to fifteen appellant as
older, job catering in the calls at his at a business messages appellant’s on ma- Ayala day, leaving January, on a part of was latter are in 1990. 1. All dates hereafter persuasion.
chine. This continued for two or three During undue final summa- weeks, Ayala’s appellant but returned guilt phase never prosecutor tion of trial the any- calls because then he “didn’t want argued: [Ayala] thing Finally, to do all.” with opportunity “What about the defendant’s May according appellant, Ayala called slogan? say to—what’s the Just no. Did again appellant phone answered the be- No, just say he ever no one even time? he picked up. fore the He did machine not want didn’t. Not even time. one Not Ayala, to talk because he “knew gave first transaction approxi- where he [Ayala] why calling.” Ayala appel- told LSD, mately ten hits of sold them to offi- getting “very upset” lant that Anderson was Anderson, cer the second transac- “irritated,” pro- and asked LSD, maybe tion for two hundred hits of trip vide “hits” of LSD to make her from not in third [June transaction where 1] Appellant Beaumont worthwhile. De- called he one delivered thousand hits of did LSD
vine, agreed supply who the needed LSD. no, say Look, say: he ever did ever he back, Appellant telephoned Ayala me, Ayala, you’re bugging leave me alone. Anderson, Ayala time had talked to had who He didn’t.” instructed him to insist on least a thou- *5 Appellant sand “hits.” called Devine once object Appellant argument. did not to this “hesitant,” again, agreed who was but the to only point In his on appeal appel- of error greater quantity. Appellant Ayala and then that of lant contended admission the extrane- arranged meeting Ayala for June 1. ous transactions was error because the State opined appellant had not seemed “reluc- failed to establish that “the evidence was up appellant tant” to set the When deal. purposes relevant for than other character sold the LSD to Anderson on June he was State, conformity.” England supra, at arrested. reversed, appeals holding 545.2 The court of that, because Penal The trial court Code embodies an allowed the State to adduce evidence, objection, entrapment, appellant’s over of least test at two other predisposition to commit the not appellant transactions in which sold offense is at smaller issue, quantities of to and therefore the trial court indeed Ayala’s LSD Anderson at did to unspecified behest on err admit evidence of the extraneous dates between Febru- ary early- and to of transactions. For this court proposition, mid-March 1990. The the portion appeals opinion original State devoted a upon substantial of its case of relied our on up sales, in proving chief to supra.3 these earlier submission in Bush v. Justice Ayala subject appellant any that, in did none argued to Wilson dissented. He while evi- trial, case, opponent appellant posture 2. As of the at addressed. of the we Given request any inquire not did articulation of the will whether the extraneous State’s transactions theory aspect of of were relevant to rebut material of relevance the extraneous transac- appellant's defense. Montgomery tions. See (Tex.Cr.App.1991) (Opinion rehearing at 387 on motion). original Court’s did 3. On in the Court rea- on own Nor the trial court submission Bush soned: the cause record reflect its reasons for admit- ting appellant’s objections. them over We note correctly points during “The out State that the trial did court include instruction to appellant pre-trial testimony, admitted jury jury charge in it the the that was to consider making drug [the four least other sales to “only evidence of the extraneous transactions ... in undercover officer the case for which Bush motive, intent, determining opportunity, in the trial]. was then on It contends that this admis- preparation, plan, knowledge, identity, ab- or sion constitutes rebuttal evidence which the defendant, or the sence mistake accident of if determining trial court could consider offense, any, any, in connection with the if al- unlawfully whether the informants actions in- leged against him the indictment and no appellant engage in duced the conduct instruction, Despite purpose.” other the charged, merely opportuni- him an afforded parties But, appeals framed issue in the court of ty previously commit offense. noted, engage in terms of whether extraneous were appellant's predisposition offenses entrapment, longer admissible to rebut the defense of is no offense consideration Therefore, question appeals and that is the court of the test of evidence of practical purposes, it had law. all irrele- mon For dence of extraneous transactions were States, theory predisposition genesis vant on a that it shows United Sorrells (1932). entrapment, may rebuts it therefore 77 L.Ed. U.S. S.Ct. Here, purposes. be- admissible for Supreme Court held the United States There cause the extraneous transactions occurred statutory that a construction as a matter of appellant between and Anderson could be read autho- penal provision trial, they to in- offense on were admissible “the for an that was prosecution rize offense [Ayala’s] acts question form “whether activity of’ en- creative law product did, fact, induce commit Id., 53 S.Ct. forcement itself. charged.” England, at 546 supra, crime as corollary of this 422. As a 77 L.Ed. at (Wilson, J., dissenting). upon Reliance Bush prosecu- holding the observed that Court continued, be- misplaced, Justice Wilson remedy acquit- escape the harsh tion could upon by majority language cause relied had if could that the accused been tal it show disposition dicta was rendered the Court’s offense, such that commit the predisposed to rehearing.4 might on We add cause could not be conduct of law enforcement preceded Bush the effec- the decision impulse criminal implanted to have said tive date of the Texas Rules of Criminal In a in the mind of the accused. Id. concur- Evidence. grounded the ring opinion, Roberts Justice argument makes much the same statutory principles con- doctrine petition as Justice Wilson in its for discre- struction, perceived to be upon what he tionary notwithstanding, we review. Bush preserve authority of inherent a court will issue in this as a treat the raised cause temple” denying a purity its own “the question impression, of first viz: Were product police mis- prosecute forum *6 appellant extraneous transactions between 457, Id., 218, at 77 at 53 S.Ct. conduct. and Anderson this cause admissible as opined: He L.Ed. at 425. aspect of appellant’s relevant to rebut some entrapment principle is that courts applicable defense? The State echoes Jus- “The they tice rele- Wilson’s contention that were of a must be to the trial crime closed appellant vant to show was not “in fact” instigated by government’s own induced to commit the offense. The State issue, comparison agents. no of No other they argues place further were admissible equities guilty official and as between the persuasive police allegedly conduct defendant, any guilty place in the has gestae kind of context —a res notion. We overruling principle of of this enforcement general en- turn first to discussion of the policy.” public doctrine, trapment ad- after which we will 459, Id, 219, at 77 L.Ed. at at 53 S.Ct. dress the State’s contentions seriatim. views en- competing of Thus were bom come to be de- trapment since
II. “objective” “subjective” and scribed tests, respectively. Entrapment A 369, States, 356 U.S. In Sherman v. United uniquely is entrapment The doctrine (1958), 819, 2 L.Ed.2d the Su- phenomenon, unknown to the com- 78 American S.Ct. rehearing by Court held en banc that Bush had does not other criminal acts entrapment. production claim rebut the of burden of to raise not met initial instance, Id. at 431. first and overturned in the so, Id., doing panel's disposition. at 432. In the however, panel original Bush a of the 4. On submission in no occasion to the en banc Court had entrap- had Court held that defendant raised panel’s holding sales revisit ment, meet of and the State failed to its burden to show "whether infor- were irrelevant persuasion entrapped beyond to show he was unlawfully to en- [Bush] induced mant's actions 8.06, supra, § See and a reasonable doubt. charged.” n. gage See ante. in the conduct Code, Thus, was 2.03. Bush V.T.C.A. Penal acquit- equivalent to the functional of an entitled tal, of 431. On as a matter law. 611 S.W.2d at preme subjec- Court to the earlier adhered B. Section 8.06 tive test of Justice Sorrells. Frankfurter 8.06, supra, Section reads: result, concurred called for a re- “(a) prosecution It defense underlying principle examination of the be- engaged the actor in the doctrine, embracing hind the because he was induced to do so lawa Justice Roberts’ view Sorrells that agent using persuasion enforcement or unjustifiably test shifts the focus likely persons other means to cause inquiry away scrutiny from an of merely commit the offense. Conduct af- agents, the conduct of law enforcement ask- fording opportunity of- ing commit an target instead whether the of their con- entrapment. fense does not constitute was predisposed duct nevertheless to commit Moreover, the crime. “(b) section, In this ‘law enforcement agent’ personnel of and includes the state proof “in predisposition of such a agencies local law enforcement as well as has often been admitted to show the defen- acting the United and States activities, reputation, dant’s criminal in accordance with instructions from such prior disposition. danger prejudice agents.”5 situation, in such a if particularly the issue of entrapment must submitted to the We have said a number of occasions that jury general disposed verdict Legislature adopted with an “ob guilty innocent, or is evident. The de- jective” say, test for That is to forego fendant must either the claim of once it is determined entrapment or run the substantial risk “induced,” issue left to be resolved that, instructions, spite jury will involved, police activity “the nature of the reputation allow a criminal record bad predisposition without reference to the of the weigh guilt determination State, particular Rodriguez defendant.” specific offense of which he stands (Tex.Cr.App.1984); 662 S.W.2d at 355 charged.” Johnson v. (Tex.Cr.App.1983); Norman v. 356 U.S. S.Ct. L.Ed.2d at (Tex.Cr.App.1979). S.W.2d at 346 Russell, 857. See also United States *7 hallmark purely of a test for en 443-44, U.S. 93 S.Ct. trapment hypothetical person. is the Once (1973) (Stewart, J., L.Ed.2d at 380 dis- show he defendant can has been senting). target conduct, persuasive police regard possible It is policy argu- to rational make persuaded less of whether was in fact to he support subjective ments of either a or an offense, commit an the focus to is directed indeed, entrapment; test for it can question itself. conduct The be rationally argued subjec- be that mixed persuasion comes whether the used best, tive/objective or that test is the doctrine law was agent enforcement such as to cause altogether. should be abandoned See R. ordinarily hypothetical person lawabid- —an Park, Entrapment Controversy, The 60 ing person average resistance —to commit (1976). Minn.L.Rev. When this Court offense, it to not was such as whether judicially recognized first the doctrine of en- himself, given proclivi cause the accused se, trapment per adopted it test. ties, to commit it. Cooper v. Tex.Cr. S.W.2d (1956). advent of the With the C. Relevance Code, was codified Penal the doctrine for the Legislature designates entrapment first time Texas. The The Penal Code was upon policy is “[t]he called to make a decision. a “defense.” This means issue ... jury Whether that trial court in this cause instructed the as a matter of law. was a correct Ayala acting "person of this that was a in accordance instruction on the facts case is not before agent law us. with instructions from” a enforcement proceed, majority this cause. We must jury to the unless evidence not submitted however, the extraneous decide whether to supporting the defense.” V.T.C.A. admitted 2.03(c). Code, in this cause were admissible has offenses § Once the accused Penal they entrapment in were relevant rebut production evi- met this initial burden “inducement,” as Justice Wil- dence, persuasion either show burden believed, persuasion,” of the son or “context falls on “the court shall then urges. as the also charge that on the issue State a reasonable doubt acquitted.” requires be the defendant 2.03(d),
§ supra. III. Subject exceptions applicable A Inducement here, in a all evidence is admissible relevant argues extraneous Tex.R.Cr.Evid., prosecution. Rule criminal appellant and Anderson transactions between any 402. Evidence is relevant if it has ten to show were relevant dency any fact that make the existence of “induced, by Ayala’s conduct to deliv fact” consequence of the determination er LSD to on June 1. Absent Anderson probable probable action more or than it less transactions, the State evidence be Tex.R.Cr. would without evidence. maintains, jury’s appel decision whether Evid., Rule 401. Where is an by Ayala’s actually persis lant was induced defense, accused available whether the “en fully informed. In order tence not be would gaged charged in the conduct because he was contention, we must decide examine induced do so” a law enforcement 8.06(a) requires it § what means when “persua agent, agent used whether “engaged in the to show that he persons likely sion or other means to cause offense[,]” 8.06(a), he was induced to supra, commit because are agent. he consequence by” facts of do so a law enforcement Must the determination of action, Any supra. present under Ride that he was “induced” evi so, he tending any dence to make either “inducement” fact? If then evidence to show “persuasion” likely surely or more less than it in fact would be was not induced Moreover, would without evidence is therefore relevant to rebut the defense. 402, supra. admissible Rule under to this extraneous transactions relevant
question be admissible under Rule 404(b). Moreover, crimes, while “other
wrongs, or acts” are not admissible to the essence, advocates, thus What the State they extent are tendered for their value 8.06(a) actually Legislature is that in conformity evidence, they may as character subjective/objective a mixed test enacted *8 be admissible either establish or rebut the entrapment. Requiring an accused to show entrapment they defense of to the extent can re-inject he was induced»in fact would indeed said to of “in be be relevant to the issues into the test. To be element “persuasion.” ducement” Mont See and/or sure, required to an accused would still be (Tex.Cr. gomery v. S.W.2d 8.06(a) § prove that the conduct of under App.1991) (Opinion rehearing on on Court’s hypothetical as police such to induce motion). Thus, reject we the cate own must ordinary lawabiding to com- nature gorical opinion original conclusion our provision To mit crime. this extent the State, supra, submission in Bush that be case, every In partly “objective.” remains § looks to conduct of the cause 8.06 to re- the State would be allowed accused, police than that of the evi rather spond the accused was with evidence that can dence extraneous misconduct never be crime, rebut predisposed to commit the admissible to rebut police used the inference because rejection might persuade law- in Bush an otherwise
Our of the dicta under- tactics that abiding hypothetical person to commit appeals cuts the rationale of court of crime, the accused was in fact gage so induced. constituting conduct [an] offense just This construction would allow not ... employing persuasion evi- methods of dence of extraneous transactions between the or inducement that create a substantial accused and agents the law enforcement in- risk that such an offense will be committed offense, volved in the persons as Justice other than those ready who are contend, Wilson and the State both also commit it.” evidence of similar extraneous miscon- The word “induces” in this context is some- duct that was relevant to show the accused ambiguous. what ordinary English we persuasion needed no to commit such an usually meaning, think of e.g., “induce” as “to offense, and actually therefore was not in- on; by persuasion lead move or influence”. way duced to do so. In major goals two (1979), Collegiate Dictionary Webster’s New purely objective of a test would be frustrated object at 583. If the of the intended induce- First, police once. persua- misconduct — actually “moved,” ment is not “led” or we sion of such a ordinarily nature as to cause ordinarily say would not he has “in- been lawabiding persons to commit a crime— hand, duced.” On the other that one “in- go particular unchecked because in the might duces” another in limited contexts inferred, might instance it because subjects mean he persuasion another to predisposition accused, im- influence, conduct meant to whether he proper persuasion impetus was not the real ultimately successful at it or not. The Second, for the offense. potentially confus- pairing “encourages” of “induces” with ing prejudicial evidence of extraneous § suggests object of the con- misconduct pre- would be admissible to show actually duct need not persuaded have been disposition, something that advocates of an indeed, entrapment for to lie. And Ex- objective test for have decried planatory § Note to 2.13 makes it evident States, from the start. Sherman v. United that the drafters of the Model Penal Code (Frankfurter, supra J., concurring); United latter, intended this more inchoate notion of Russell, (Stewart, supra J., States v. dissent- Thus, inducement. a defendant who has ing). subjected police been conduct that is in- persuade entrapped, tended to has been Because steadfastly heretofore we have contemplation 2.13, §of long per- as the construed adopt 8.06 to test suasive conduct was of a kind that “creates a entrapment, initially skeptical we were substantial risk that ... an offense will be State’s and Justice Wilson’s contention in by persons committed However, other than those who following this cause. careful scru- ready are to commit it.” It need not be tiny 8.06, of the text of and a re-examina- shown, purely under this under- it, tion of the construing caselaw we now standing entrapment, per- that but codify conclude that it does subjec- a mixed suasiveness of the tive/objective test for after all. would not have committed the offense. He
Anticipating that this conclusion will come as object persuasive need have been the surprise bar, no small to the bench and we conduct; if that conduct was such as to pains explain. take persuade hypothetical person not otherwise offense, “ready” to commit an he has been *9 Entrapment i entrapped, whether he was “induced” in fact beyond peradventure It is that or not. the drafters opted of the Model objec- Penal Code for an In 1970 the Bar Committee Revi- 2.13,
tive test for Section A.L.I. sion of the Penal Code submitted a similar (1985) provides, Model Penal perti- Code in provision Legislature. to the Section 8.05 part, nent agent: that a law enforcement Code, Revision, Proposed the Texas Penal A “perpetrates an entrapment if ... in- he State Bar Committee on Revision of the Pe- (Final encourages Code, 1970), 71-72, duces or pro- another to en- nal Draft at
9H
objective test
thoroughly
vides,
unquestionably a
part,
it is a
to
in relevant
that
defense
ambigu-
notwithstanding the
entrapment,
prosecution
agent:
that a
for
law enforcement
ity inhering in the word “induced.”
an offense ...
“induced the commission of
by
creating a substantial risk that
methods
ii. Section 8.06
by
offense would be committed
one
the
However,
ready
commit it.
otherwise
in
Legislature
from
emerged
the
What
if
no
this section the
there is
defense under
however,
demonstrably a
not so
agent] merely
the actor an
[police
afforded
changes to
objective standard. Two
purely
offense.”
opportunity
commit the
entrapment were
test for
the substantive
First,
proposed
version.
made from the
agent
That a law enforcement
“induced” an
the
change
made to
articulation
commit
the
was
accused to
an offense carries
clearly objective
hypothetical
the
ambiguity
person,
as did the word “in-
same
here
§
§
component
in
2.13 of
Model Penal
test.
8.05
duces”
Code.
Whereas
Code, however,
inquired
with the Model Penal
whether
proposed
As
the 1970
code had
§ 8.05 makes it clear
Committee Comment to
police
creating
“methods
a substantial
used
was not intend-
by
that the inducement element
risk that
committed
the offense
be
subjective component
into
it[,]”
ed to introduce
ready
one not
to commit
otherwise
objective
an
what was otherwise meant
police
§
to now
8.06
revised
ask whether
was
suggests
the “in-
test.
Comment
likely to
“persuasion or other
used
means
requirement
simply
was
meant to
ducement”
persons to commit
We
cause
the offense.”
actually subject-
was
ensure
accused
change
this
to have affected
do not construe
conduct,
overtly persuasive
opposed
as
ed to
component of the test
having
merely
opportuni-
an
been
afforded
way
present inquiry.6 More
relevant to our
“First,
ty
to commit the
as in
offense.
Legisla-
important
present purposes, the
law,
police
conduct must
‘induce’
setting out the
language
ture also
altered
crime;
of a
commission
second sen-
Rejecting
“inducement” element.
threshold
(a) emphasizes,
tence of Subsection
one who
requirement
entrap-
§
8.05 that for
merely
opportunity
advantage
takes
of an
lie,
agent
must
ment
a law enforcement
provided by
entrapped.”
is not
offense,”
have
the commission of an
“induced
Comment,
By
73.
understanding,
at
this
an
showing
Legislature
required
instead
was
commit an
“induced” to
offense
engaged
“that
in the conduct
the actor
object
rising
if he was the
tactics
was
to do so
because he
induced
persuasion,
the level of active and overt
more
agent.”
a law enforcement
temptation.
purely
than mere
This is a
ob-
pro-
§ 8.06
This
conclusion that
jective
Court’s
construction of
“inducement” re-
mulgated
test for
focusing
quirement,
not on whether the ac-
original
rather,
panel opinion on
persuaded,
derives from the
cused was
fact
sim-
State,
Langford
ply
him submission
whether
conduct directed at
Thus,
persuasion.
(Tex.Cr.App.1978).7
opinion,
In that
what
amounted
§
every
opinion construing
Legislature
submitted to
1970 was
rejected
argument
entrapment was said
cases to have
in later
6. We have
2;
effectively
any objective
supra,
429 & n.
change
Bush v.
at
abolished
com-
survived.
State, supra,
Rodriguez
We
altogether
entrap-
& n. 6.
ponent
the defense of
from
regarded
gospel
Rodriguez
supra,
§
ever since.
that conclusion as
ment under
8.06.
(McCormick, J., dissenting). The Court’s
panel
story
conclusion
of how the
drew its
holdings
objec-
past
embraces an
the statute
is,
comedy
errors.
Langford
tortuously,
component, although
arrived
tive
announced,
attribution,
Judge Phillips
without
undoubtedly
post, are
correct.
see n.
"derived” from a New York
8.06 was
statute.
true that
New York
It is
8.06,
notably
in its
most
Langford
Court
banc
statute is similar
was "overruled”
en
*10
State,
"engaged
requirement
he
rehearing. Langford
that the accused show
v.
that conduct is not to be viewed in a B. Context the Persuasion vacuum; judged by it should also be normally it would have effect law- shown, Once inducement the issue be- abiding person in the circum- situated persuasion comes whether the was such as Among stances of the case at hand. ordinarily lawabiding person cause an of av- may circumstances that be relevant erage resistance to commit nevertheless purpose, example, this are the transac- objective component offense. This is the offense, preceding suspect’s tions hypothetical person 8.06. Whether officer, response to the inducements of the posited by objective component crime, gravity difficulty and the persuasion particu- succumb to the in a used commission, detecting instances of its purely lar case is function the evidence reiterate, [citing ]. Grossman We howev- persuasive shows the facts of the con- er, that under this test such matters as the itself, jury’s duct and the judg- normative suspect, predisposition character ordinarily lawabiding ment about how an offense, to commit the and his average respond resistance would intent are irrelevant.” crimes, to that conduct. Evidence of “other Barraza, 675, wrongs, People or acts” would not seem to have a 23 Cal.3d 153 Cal. 467-68, 947, logical bearing 459, process. Rptr. on this P.2d at 955-56 (1979). also, e.g., Taylor, See however, argues, The State that extrane- (Utah 496, 1979); P.2d at 503 White may ous transactions be admissible neverthe- (1989); 298 Ark. at 951 S.W.2d place purported less to Agent, State v. 443 N.W.2d unduly persuasive be in context. The State (Iowa 1989); Jamieson, People v. 436 Mich. jurisdictions, cites cases from other and we (1990). 61, 461 N.W.2d more, have found that observe that even Thus, purely objective entrapment, jurisdictions under a test for have tak gestae approach evidence of other “transactions” between a kind res to admission en parties leading up alleged same en- of to show the circumstances under evidence trapment may alleged police persuasion be admissible as “context” which occurred. Boykin.
strange
disregarding
we
should
accused of
those
Texas,
on other
Even
admissibility of extraneous
the accused
occasions.
allow
of other
offenses,
jurisdictions that
in the
evi-
guise
even
of “context”
ac-
police and the
404(b),
transactions between the
dence,
governed by
now
Rule
su-
emphasize
as “context” evidence
cused
of “other
pra.
have held that evidence
We
*13
is not a
state of mind
the accused’s
crimes,
objectionable un-
wrongs, or acts” is
objective
consideration under an
material
404(b)
only
con-
proffered
when
as
der Rule
Barraza,
People
supra.
E.g.,
test.
Mayes v.
“background”
textual
evidence.
Ayala attempted to
specific
which
conduct
(Tex.Cr.App.1991).
to Anderson between and mid- IV. question not March is relevant of (if persuasion any) Ayala whether Though the transac extraneous brought on March bear him from late “persua tions were not relevant to rebut the through May hypo was such as to cause a appellant’s entrapment of de sion” element person of com average thetical resistance to fense, “in they were relevant rebut element, mit the sale of LSD on 1. The charac June reads on ducement” that element degree persuasiveness face, today.12 of ter or used does it and as we construed Therefore, depend upon willingness of to hold apparent appeals not of the court erred cases, one, accused under the instant where evidence 12. An these circumstances such as crimes, wrongs, limiting be entitled to a under Tex. or acts” is not relevant instruction “other R.Cr.Evid, 105(a). persuasion Rule with this or other means Consistent the issue whether "likely persons provision, request he could to cause to commit an instruction used was crimes, law-abiding say, ordinarily jury limit its of "other is to consideration offense”—that average could wrongs, persons acts” to he in the issue of whether resistance—the "engaged request specifically trial instruct fact in the because he court jury to do to consider the evidence for was induced so a law enforcement Furthermore, agent.” majority purpose. Finally, instruct the trial court should in the vast Eng the extraneous transactions inadmissible. denee of the two sales LSD. land, ruling disposes appellant’s Because S.W.2d at 546. The court reasoned point appeal, sole of error on we reverse the defense set forth judgment appeals of the court of and affirm section 8.06 the Texas Penal Code was judgment trial court. predicated upon based standard conduct, nature of the predisposition to commit the accused’s
DISSENTING OPINION ON STATE’S However, justice crime. Id. at 545. one PETITION FOR DISCRETIONARY stated extraneous transactions between REVIEW the accused and the same informant were MALONEY, dissenting. Judge, *14 admissible to show the context which the jury appellant delivery A convicted (Wilson, J., offense occurred. Id. at 546 coworker, police to his a informant. LSD dissenting). The at trial established that evidence the granted petition This the State’s for Court police paid money every the informant discretionary drug review to determine whether successful deal. The evidence further crimes, ap- wrongs, informant or acts” are admissi- established the harassed “other pellant obtaining drugs him entrapment about so ble to rebut an defense. See job. 404(b). appellant quit much that his Today, majori- Tex.R.Crim.Evid. continued, however, harassment for over two ty entrapment holds for the first time that culminating in months the instant offense. subjective/objective stan- involves a mixed During preceding the three this of- weeks dard, 910, 913, maj. op. at and that evidence fense, repeatedly appel- the informant called crimes, wrongs, or of “other acts” admissi- leaving many messages lant as fifteen a subjective part entrap- ble to rebut the day answering Although on his machine. defense, objective part. ment Id. calls, appellant telephone did not return the legislature intended 915. Because because, ultimately agreed drug he to a deal entrapment of a that our defense consist according testimony, to his he was afraid the standard, purely objective respectfully I dis- mother, notify informant would with sent. lived, whom he and because he wanted the informant to leave him alone. The evidence I. appellant eighteen
also established that years old at the time of the instant offense In the seminal cases of Sorrells1 and Sher- twenty-eight. and the informant was Evi- man2, Supreme five members of the Court dence that the offense occurred on the first subjective perceived that a standard should of June 1990 was admitted. The trial court utilized, predisposition that a defendant’s admitted of two sales LSD defense, was relevant to an occurring February or March 1990 could introduce evi- Government to the same informant to rebut that a had committed other dence defendant appellant’s entrapment Maj. defense. See implying did not fact crimes 905-906; op. England 856 S.W.2d him commit the crime. induce 544, (Tex.App. [1st Dist.] 544-45 — Houston Roberts in Sor- The concurrences of Justice 1993). Frankfurter Sherman rells and Justice reversed, entrap- holding espoused an standard appeals
The court of
solely
focusing
upon
conduct.
the trial court erred when it admitted evi- ment
jury upon request
defense. See n. 2
that it is not to consider
an element of the
crimes, wrongs,
ante.
the evidence of "other
or acts"
primary question
in its deliberations
435,
States, 287
53 S.Ct.
whether the accused
fact
the al-
1. Sorrells v. United
U.S.
committed
210,
(1932).
leged
Whereas the
standard focuses
reason
defense of en-
propensities,
trapment.
upon the accused’s criminal
No matter what
the defen-
solely
past
present
standard is
concerned with
dant’s
record and
inclinations
criminality,
propriety
police
depths
As
or the
to which
conduct.
Chief
he
majority
society,
for the
has sunk in the estimation of
Justice Warren wrote
cer-
police
tain
Sherman:
conduct to ensnare him into
further crime is
to be tolerated
The function of law enforcement
is the
society.
advanced
prevention
apprehension
of crime and the
Manifestly,
of criminals.
function
manufacturing
does not
include the
police activity
vary
Permissible
does not
crime.
according
particular
defendant con-
Sherman,
When act in such a manner as to cause solicited at the same time the same crime, an accused to commit a are manner, go jail simply one should not longer acting in no accordance with their because he has been convicted before and duty; ironically, they guilty themselves are disposition. is said to have a criminal they of the offense for which the ac- arrest police entrapped cused.6 The fact that the committing
citizen into
a crime
possibility
that no matter what his
any
past
general
does not make him
more innocent or
crimes
disposition
predisposed
might
if
less
than he would be
not have committed the
defendant
induced, provoked,
tempted
particular
had
he
been
crime unless
with
confronted
inducements,
course,
ig-
private person which,
inordinate
must not be
—
*16
nored. Past crimes do not
outlaw
cry “entrapment.”
would not entitle him to
forever
open
police prac-
criminal and
him to
only
Since
between these
difference
tices,
securing
repeated
aimed at
con-
identity
temptor
situations is the
of
viction,
ordinary
[sic],
which the
citizen is
significant
it
that the
from
follows
focus
protected.
hopes
The whole ameliorative
government
must be on the conduct
penology
prison
modem
and
adminis-
agents,
predisposition
and not on the
strongly
against
tration
such a
counsel
the defendant.
view.
Russell,
411
(Stewart, J.,
U.S.
dissenting) (emphasis
(Frankfurter, J.,
(emphasis
concurring)
add-
Justice Frankfurter observed in his con-
ed).
of a defendant’s other
Evidence
crimes
curring opinion in Sherman:
sales)
(here prior drug
not relevant. Evi-
is
only
a test
looks to the character and
dence of other crimes shows
character
predisposition
conformity
prohibited
rather than
is
Tex.
the defendant
which
404(b)
Montgomery
police
sight
the conduct of the
loses
of the R.Crim.Evid.
and
Sorrells,
Hughes
Rehnquist
5.
Chief
acknowl-
6. Justice
has stated that:
Justice
edged:
police
illegal activity
engage
in con-
[i]f
the officers of the law are to
The first duties of
beyond
scope
defendant
cert with a
of their
prevent,
punish
not to
crime.
It is not their
remedy
prosecuting the
duties the
lies ...
duty to incite to
and create crime for the
[sic]
applicable provisions
under the
of state
punishing
purpose
prosecuting
sole
and
it.
or federal law.
Sorrells,
(quoting
ute when is police lie if conduct is ment defense will the language to “inducement” in the 1970 the hypothetical person a to com- likely to cause proposed The penal code. Id. at 910-912. The is not concerned mit a crime. statute majority jurisdictions reviews then actually himself was whether plain reading that a of our en determines Thus, it “induced” as is induced. word trapment that it is a mixed statute indicates 8.06(a) ambiguous. in is not used section majority’s rea standard. Id. at 913. The however, Nevertheless, does this Court’s soning, majority not follow looks to “extra- 8.06(a) statutory recognized regarding compares rules inter section textual” sources State, Id. at OH- pretation. Boykin proposed penal code. See 818 S.W.2d to the 1970 majority significant it that The finds (Tex.Crim.App.1991). 912. 785-86 entrapment. Maj. majority eating interesting a mixed standard for 7. of the It is author author, opinion, Montgomery’s is also op. who 910. interpret permit such would section 8.06 to result. (Tex.Crim. Rogers 853 S.W.2d 9. See App.1993). majority incorrectly 8. characterizes The argument as advo- and the dissent below State's standard, provided proposed penal entrap- majority acknowledges, code an as the does police permit ment if com- not evidence of other defense induced the crimes to rebut offense; entrapment Maj. whereas, op. an defense. mission of the section at 913-915. However, 8.06(a) majority provides entrapment “[i]n if maintains an defense every permitted case” the should actor committed the he was offense because introduce of a evidence defendant’s- other police. Arguably, Id. at induced 911. crimes rebut the element of his change language the reason for the in entrapment Id. at If defense. this language penal proposed because true, what difference does it make whether provide object not police code did an police would hypo- induce the conduct.10 person? thetical This so-called mixed stan- majority, suggests legis- essentially objective dard renders the ele- lature chose to meaningless. particularly ment This is vexa- majority since permit, tious not ambiguity resolve the the word “induce” only evidence of other crimes between the definitively understanding, favor of defendant and the same law enforcement keeping preferred usage with its in ordi- agent, argued by as the State and the dissent nary English, actually it means to below, but involving crimes influence, persuade or simply not to en- defendant and as others well. Id. at 909. gage in purpose conduct that has as majority cites several cases from other persuade or ... influence interpreting their respective entrap- states previously, Id. at 912. As literal stated However, ment statutes. Id. at 912-913. 8.06(a), reading of section as well as the legislature explicitly provid- because our has practice section, commentary provide to that purely objective ed that Texas has a stan- Entrapment otherwise. occurs when entrapment, per- dard those cases are cause,” likely use “means but not neces- suasive. sarily causing, person, hypothetical not nec- Regardless of whether one thinks the ma- defendant, essarily the to commit the offense. jority’s proposed is, perhaps, mixed standard 8.06(a). legis- Tex. Penal Code Ann. If the palatable purely objective more than stan- provide majority lature had wanted to as the dard, legislature the fact remains the intend- suggests, it explicitly provided would have ed the defense be an occurs when the use job change standard. It is our that. actually means cause the defendant (“our Boykin, See at 785 S.W.2d state commit the crime. assigns lawmaking constitution function ...”) Legislature (emphasis origi- practice commentary Because the to sec- nal); Alvarado v. 8.06(a) cf. explicitly tion states that it is an J., (Tex.Crim.App.1993) (Maloney, dissent- standard, change language (only ing) legislature exceptions can create nothing should be construed than a more *18 38.23). art. Tex.Code Crim.Proc.Ann. change writing style legislature’s on the part. judgment I affirm court See Texas Law Review Manual on (7th (use ed.1992) not, Style appeals; majority 2:6 because the does I active voice voice); respectfully preferred passive over dissent. see also Reed Dickerson, Drafting Legal Fundamentals of MILLER, OVERSTREET, BAIRD and (2d ed.1986); Henry Weihofen, Legal JJ., join opinion. (West Style 97-99, Writing 111-12 2d ed.1980). majority’s proposed mixed standard is
really standard. An 8.05(a) 8.05(a) (Fi- proposed penal Tex.Prop. 10. Section code Penal Code fense-’’ 1970). provided: prosecution reading “It is a that a defense nal Draft section, a literal of that Under officer, peace peace peace or a directed officer did not have to induce officer, anyone induced the commission of of- crime. commit a