Prudhomme v. State
495 S.W.2d 941
Tex. Crim. App.
1973
Check Treatment

*1 Harden witness to

jury but the error was harmless.

Here, there was

on which the conviction could be based.

Hicks appel- the sale and the

lant, raising defense sale,

acknowledged ade- entrap-

quately charged defense on the agent.

ment and accommodation appellant’s given protected

rights. Article Ann.

C.C.P. not, done,

I would as the has

reach out and hold that in (apparent-

ly any kind) required the accused taken the stand and admitted charged.

which constitute the crime There

is no lay down a new rule

order to affirm this conviction. stated,

For the reasons I concur in the

results reached.

Bob PRUDHOMME, STATE

Nos. 46823-46825. Appeals of Texas. 13, 1973. 1973. McGrath, (on ap- Beaumont S. James appellant in

peal only), for (on appeal Molbert, Beaumont Herbin J. 46824 and in Nos. only), R. Hanna, Atty., De- Tom Dist. John Beaumont, Witt, Atty., D. Asst. Dist. Jim Vollers, Atty., A. and Robert Hut- State’s *2 tash, Austin, refusing Atty, give Asst. State’s traneous offenses and in to for the requested charge State. testi- mony that there must be evidence other agent than that an undercover con- OPINION appellant nect the with the crime. The acquit jury DOUGLAS, Judge. entrapped had been if he had appeals These are from three convictions agent acted as an accommodation for the for the punish- marihuana. The purchaser. ment in each case was assessed at five years. Padgett, agent Curtis an undercover W. Department for the Texas of Public Safe- In Cause court, the trial ty, day question testified that on the he the-plea guilty punishment not and the purchased two matchboxes of marihuana was assessed by jury. In Causes Nos. appellant for After $10.00. 27,782, pleas Padgett testified, the State rested. punishment court assessed the years. each case at five All the sentences appellant day testified that on the were to run concurrently. Padgett question and Gloria Williams came there, to his house. While the two smoked We have concluded that the convic what like cigarette looked marihuana tions pleas of guilty cannot stand Padgett then get asked he because provisions certain “grass.” discussion, some After some Ann.C.C.P., and the decision of appellant left and bought a box of $5.00 Supreme Court of the United States in marihuana from a man called “Hustler.” Boykin Alabama, 238, 395 U.S. 89 S.Ct. Later, paid Gloria Williams him $5.00 1709, 274, 23 L.Ed.2d were not followed. Padgett box any- because did not have appellant properly admonished as thing Padgett less than a bill. then $20 punishment, to the range of but there marihuana, smelled the took it and left. showing in the pleas record that the were Appellant also that he was not a entered (cid:127) voluntarily. The court asked: marihuana, only dealer in reason got he it this get Padgett time was to “Well, you do claim that anybody has Gloria Williams out of the house and that taken advantage you you or that have he had no intent selling anything but mistreated, or anything you accommodating Padgett. He fur- consider as an improper influence ther related that he “never amade nickle you to you plead cause ?” ' out of it.” The appellant replied, “No, Sir.” The cross-examination, On he testified that court then asked counsel if un- got he sold which he marihuana also derstood the consequences of the Padgett from “Hustler” to at O’Bannions guilty and replied counsel that he did. days Drive-Inn some eleven later. The showing There is no gave selling reason he time was persuasion concerning promises made that he was afraid of Gloria Williams who voluntarily was otherwise had been on both occasions. State, Tex.Cr.App., made. Padg- at his home to Another sale made 174, proved. ett was Tex.Cr.App., 493 S.W.2d 172. appellant requested an instruction to convict you “. . . cannot In the case where you believe unless further the defendant guilty, main that the contentions are case, outside there is other evidence of ex- admitting court erred in 343 S. Tex.Cr.R. Sutton tending connect Padgett, the witness W.2d 452. the of- the commission defendant with ” . . . charged in indictment. fense on the extraneous limiting A instruction given. transactions was already instructed had The court *3 and entrapment accommodation on supporting No search warrant jurors be- the agency to effect record; ques appears affidavit in the originated the crime lieved a under of search of the home tion acquit. officer, they were mind of be reviewed. search warrant cannot charge requested, as Under The in Causes Nos. judgments in effect been denied would have reversed and remanded. are entrapment of accommoda- the defense tending to con- agency. The evidence tion 46,823 af- in is judgment Cause foregone him with crime a nect firmed. because of his admission in conclusion open court. Here the confessed in ONION, (concurring Presiding Judge constituting of the offense part dissenting part). He avoid the sought sale of marihuana. consequences by testifying of I re the two convictions effect that he would not have done so ex- sulting re from of must be cept that originated the crime in the mind versed the failure of the trial Padgett. Officer matter left comply mandatory requirements with defense, was his credibility on not on I Vernon’s Ann.C.C.P. the commissionof the offense. any infer myself would disassociate majority opinion, relying ence in the The same question instructing about on State, (Tex. 174 v. 493 S.W.2d accomplice testimony entrapment State, 493 Cr.App.1973), Espinosa v. been presented has been in (Tex.Cr.App.1973), S.W.2d 172 State, Carr Tex.Cr.App., 495 S.W.2d 936 persuasion or quiry had been made as to (This day now, decided). We hold as we promises the admonition would have Carr, did in entrapment that since and ac- plainly The statute is too word sufficient. agency commodation as a raised de- misconstrued, see ed to be fense and the accused took the stand and State, it re supra (dissenting opinion), and admitted the acts which constituted the of- guilty plea a quires to whether fense, no accomplice on testimony any “is consideration uninfluenced required.1 fear, hope any persuasion or delusive byor pardon, him to prompting confess complaint about the introduction of guilt.” supplied.) (Emphasis evidence of other sales to possession of several boxes of other mari- is point that the admonition would out found huana at his home is merit. without al in addition to reasons insufficient any in

ready failing to make observed hope pardon or any quiry as to delusive Where has been inter Heathcock v. posed defense, inquiry. similar See aas the evidence of other 1973), State, (Tex.Cr.App. marihuana, although 494 570 transactions ex State, offenses, Mayse 494 S.W.2d traneous and Ross v. is admissible on the is opin (dissenting State, (Tex.Cr.App.1973) sue supra; of intent. Carr v. Jones v. State, 616; Tex.Cr.App., ion). 427 S.W.2d re places is on on a defendant a When witness Tex.Cr.App., quired. Terry the stand be who would him, S.W.2d 870. the State witness had called The conviction on the of not unlike Carr S.W.2d 936 for in that case there

(Tex.Cr.App.1973), which predicated conviction be to charge

failure issue whether

certain witness an accomplice error, but harmless error. Carr v.

State, supra (dissenting opinion).

I concur in the result reached the in-

stant (on guilty) be-

cause I cannot find in this record where objection written basis

filed, presented to or acted

trial judge.

ROBERTS, Judge (concurring).

I agree with Presiding Judge Onion

his concurring opinion herein, insofar as it

relates to the of guilty.

However,

where an testifies he committed act, there is no charging

on accomplice well as entrap-

ment. WHITSON,

Thomas Charles STATE of

No. 46192. Appeals of Texas.