*1
cause,
resolution, Armstrong
majority precludes
Appeals
of
regardless of its
the Court
Id,.,
considering
from
restitution
issue.
could not be retried.
refile his motion for new trial with the OVERSTREET, JJ., CAMPBELL and possibility ... exists benefit join opinion. granted, that the motion would be render- per- moot decision of this Court taining to the issue of restitution.
Majority op.,
(Empha-
n.
sis ap-
Armstrong distinguishable because
pellate point of error resolution State’s given
in that could not be effect. How- case ever, case, in the instant resolution of the Wayne REESE, Appellant, Larry grounds given could be effect if restitution v. Appeals the Court of concludes Texas, Appellee. waived counsel on his motion for new trial. STATE Consequently, opinion our would not be advi- No. 107-93. sory. Texas, Appeals of Court of Criminal
II. En Banc. The instant case arose from the same June State, transactions as Martin v. 1991). (Tex.App. And the Court - Austin Appeals opinion on its in Martin to relied
resolve restitution issues. Con (Tex.App.-
nor 1991). However,
Austin we reversed the Appeals in
Court of Martin (Tex.Cr.App.1994), holding the
S.W.2d 674 by ordering judge
trial erred restitution to just
“persons other than the victim of convicted.” [Martin]
crime for which
Id.,
the Court of
Appeals appellant waived counsel determine trial, it would be
on his motion for new
prudent to reconsider the for that Court light opinion
restitution issue of our However, limiting scope
Martin. issue,
the remand to the motion for new *3 Stevens, Galveston, appellant.
Mark W. Guarino, Atty., Dist. and B. Michael J. Goodson, Jr., Atty., Dist. Gal- Asst. Warren Austin, veston, Huttash, Atty., State’s Robert for the State. the court en banc.
Before APPELLANT’S PETITION OPINION ON REVIEW FOR DISCRETIONARY OVERSTREET, Judge.
Appellant’ for the offense of was indicted substance, delivery Tex. controlled 481.112, § al Safety Code Ann. Health & on or about leged to have been committed County. A November 1990 Galveston delivery a con jury appellant convicted cocaine, substance, namely and as trolled punishment, the use of a sessed enhanced (70) conviction, seventy years felony at prior in the Institutional Division of confinement Department of Justice. the Texas Criminal Appellant a motion for a new trial. filed same, hearing said motion was denied After Court of by the trial court. The Fourteenth State, Appeals affirmed. Reese v. (Tex.App [14th Dist.] . -Houston 1992). peti granted appellant’s This Court discretionary review.1 tion targeting contingent-fee following grounds use of informants granted for review: 1. We designated far de- specifically individuals so (1) affirming erred in "The court law, refusing that the to rule as a matter of any Facts co persuasion Pertinent used form of or induced engage in the offense. He testi- 6, 1990, On November Officer William fied that he did detect reluctance of Rankin], Rankin [hereinafter Officer with the engage Appel- in the offense. Galveston Department working Police in an trial, testify lant trial. At did not capacity purchased undercover cocaine from not to ques- claimed a answer appellant, Larry Wayne Reese. The offense tions, rights invoked his under the Fifth allegedly place alley took between two Amendment of the States Constitu- County. residences in Galveston Officer tion, testify presence in the did not informer, along police with a jury. gave Dal Bosco limited Bosco, together rode vicinity in cab to the presence jury. outside He also of the offense. Charles Officer Roe followed testified at the for a motion new trial hear- pair in an unmarked vehicle for *4 ing. surveillance. spotted appellant, Bosco exited the cab I. proceeded and toward him. Dal Bosco called to Officer Rankin to come and meet with Discussion in purchase. order make the Appellant’s ground first for review The alley. three met in the Officer Rankin urges contingent paid the use of a fee standing approximately 2-4 feet from targeted informant to make a case a appellant. Officer pur- Rankin offered to suspect process violates the due and due twenty chase Ap- dollars worth cocaine. provisions course of law of the United States pellant removed a containing ap- matchbox Constitutions, respectively. and Texas Ap proximately packets five to ten of cocaine pellant “paid concedes that informants and from pants pocket. Appellant his removed a permitted nothing themselves are and are packet and handed it to Dal Bosco. Officer Appellant asserts, new under the law ...” objected Rankin to the amount of cocaine however, that process his due and due packet. course appellant argued He and over rights of law were violated because Dal Bos quantity price. Finally, appellant and identity participation co’s were not time Bosco, retrieved packet the first from Dal ly disclosed, promise the officer’s that Dal took packet another from the matchbox and testify, Bosco would not have and Dal handed it to Officer Rankin. Officer Rankin bargain enforcing through Boseo’s appellant twenty then handed dollars. He Fifth of privilege. Amendment claim and Dal Bosco left scene. Neither officer mentioned Dal Bosco’s It is well settled the use of infor name or participation drug in transac- agents permissible mants and undercover reports. tion in their prosecutor The learned government investigations. Sorrells v. of Dal identity Bosco’s day involvement a States, 435, 210, 287 53 77 U.S. S.Ct. following day prosecu- before trial. The (1932). protection L.Ed. 413 The of due tor informed counsel of Dal Bos- process play only gov comes into when the co’s existence and Appellant’s location. activity question ernment violates some subpoenaed Dal Bosco who was now protected right Hampton of the defendant. jail. County in the Galveston States, 484, 1646, v. United 96 425 U.S. S.Ct. response (1976)
In question, (plurality a defense Officer 48 opinion). L.Ed.2d 113 process testified that he nor Dal brought neither Bos- Due convictions condemns (4) parts accepted from appeals finding standards as to "The render court of erred in error prosecution illegal.” harmless.” (2) appeals affirming, "The court of erred in (5) appeals "The court erred insofar as it notwithstanding permitting the trial court’s assumed, record, in the without basis that the Bosco, informant Dal agent, a witness and testimony of Dal would be consistent privilege.” to assert a amendment fifth by peace with that offered officers who were (3) refusing "The court erred in the state’s witnesses.” entrapment charge sup- rule that an ported by the evidence.” 332 749, 1026, (1988), by “a 762
about
methods
offend
sense
108 S.Ct.
98 L.Ed.2d
conscience,”
justice,”
replaced
panel
or run
“shocks
conclusions
affirmed
con-
also
counter to
“decencies of civilized
the conviction. The court
overruled
165,
California,
per
contingent
v.
se
duct.” Rochin
342 U.S.
Williamson’s
rule
fee
(1952).
incompetent
failed contingent informants. the use fee The system. Id. acquaintances of the defen- informants were Cervantes-Pacheo, supra, paid procure inform- to In dant and evidence They contingent upon buy not payment only er’s was the defendant. were instructed quality promised and performance but also included the firearms from defendant investigation successful. payment of his at trial. The case was re- panel testify informants did at trial. The manded for a new and the not however, regard- agent, government informant’s inherent- testified that the ly untrustworthy purchase. and ex- the informants’ should have been at 460. cluded. Id. did In this instant case Dal Bosco testify support appellant. testify at trial. Officer Rankin did Neither of these cases concerning pay rehearing On en banc Fifth Circuit Bosco’s involvement Cervantes-Pacheco, payment arrangement. 826 received v. States (5th Cir.1987), denied, participation U.S. for his in the transaction after F.2d 310 cert. 484 901, 225, denied, progeny interpret in U.S. 88 L.Ed.2d Williamson 474 106 S.Ct. Williamson's States, Garcia, see, See, (1985). consistently. 528 But Harris v. United 400 United States v. 226 denied, 264, (5th 580, (5th Cir.1968) Cir.1976), (contingent fee 429 F.2d 266 ar F.2d 586 cert. 262, (1976) 898, prior justified government rangement has S.Ct. L.Ed.2d 182 where U.S. 97 50 suspect (concluding knowledge targeted the use that commit that Williamson condemned prior contingent prom ting acts the institution of the fee involves the unlawful of a where it contingent specified arrangement); a fee Hill v. United payment of a sum to convict ised Onori, States, Cir.1964), denied, (5th suspect); F.2d 988 cert. specified v. 535 328 United States 851, 94, (1964) 938, (5th Cir.1976) (condemning 54 where 379 U.S. 85 S.Ct. 13 L.Ed.2d F.2d 942 incriminating (contingent arrangement justified successfully fee where de specific is for sum defendant); See, past whisky violations United States fendant had record of the indicated also. 1058, Cir.1985), Yater, (5th illegal activity). neighbors complained cert. of his F.2d 756 1067
333 trial, appellant any regardless strength was arrested not for testi- of the of the mony contingent upon appellant’s or convic- or it is Id. whether controverted. evidence untimely tion. As disclosure at 500. agree appeals’
claim we with the court of disposition. We govern- conclude entrapment is found The defense case, ment conduct the instant under (Ver 8.06, Tex. Penal Ann. Section Code alleged by appellant, facts is not so outra- 1978).3 In for an non order geous or violates fundamental fairness entrapment initially claim raise a he must shocking to a justice. universal sense of prima showing establish a facie of such a Appellant does not direct Court’s atten- State, Richardson v. defense. tion to method that offends fundamental (Tex.Cr.App.1981). 852 case the instant fairness. must be at trial there some evidence adduced tending to show induced process Due in both state and fed agents law enforcement deliver eral constitutions includes means that and the cocaine means inducement were shall, case, accused in a criminal be accorded likely person to cause to commit the of necessary fundamental due fairness entrapment fense. issue of is not raised State, justice. Zepeda administration of only where the facts indicate that the crimi (Tex.App. 730 S.W.2d Antonio - San 1989, design originates nal the mind pet.) (citing no Webb v. 161 Tex. (1955)). Crim. accused and the law enforcement officials or S.W.2d We persuaded agents are not merely opportunity that the use of a contin their furnish gent investigations target fee informant in or in the aid accused commission persons ed suspected engaging illegal Lopez v. crime.
activity accepted violates standards of funda (Tex.Cr.App.1978). Appellant’s ground mental fairness. first *6 appeals The court of “[a]l- concluded that review is overruled. though repeatedly defense counsel used the Appellant’s ground third for review “entrapment” questioning word in witnesses complains appeals that the erred conferences, during and bench is sim- there refusing entrapment sup to rule that was ply no evidence in the record that itself ported by Appellant argues the evidence. entrapment.” agree. an issue of raises We that the number of Dal cases Bosco worked appellant points only The evidence to shows on, way he paid, police exerting acting in that Dal Bosco accordance with Bosco, no over Dal police target control agent instructions from a law enforcement ing appellant, and expressing hesi 8.06(b). § under Tex. Penal Code Ann. approached by tation when Officer Rankin only remotely suggesting entrap- evidence combine to demonstrate that Dal Bosco was ment was Dal at the mo- Bosco’s agent up” appellant. state and “set hearing tion that had for new trial said, initially mess with “Don’t me or some- theory Whenever a defensive thing Appellant that not to effect.” does evidence, by raised the defendant is enti evidence, otherwise, any or tend- show weak jury theory. tled to a instruction on that suggest Dal to that Bosco or Officer (Tex.Cr.App. Booth S.W.2d 498 1984). persuaded or induced him deliver determining to whether the evidence Appellant’s ground issue of charge, raises the a defensive this the cocaine. third Court must consider all the evidence raised review overruled. (b) provides: agent”
3. 8.06 Section In this section “law enforcement in- (a) personnel prosecution It is a defense to that the actor state and law en- cludes local engaged charged in the conduct because he agencies well forcement as of the by agent induced do to so a law enforcement any person acting States in accordance with using persuasion likely or other means to cause agents. instruction for such persons merely commit the offense. Conduct person affording opportunity an commit entrapment. not offense does constitute ground right. con- The Court: All Appellant’s fourth for review appeals tends that the court of erred agreed that Dal Bosco Appellant’s counsel appel- finding error harmless. We note that right his Fifth Amendment had a to exercise appeals “pur- lant asserts that the court self-incrimination, urged privilege but of an ported to find error the denial only right open could that he assert entrapment The court charge 'harmless.'” disagreed jury. The court court before the found in the first never error so do we. In Victoria ground for place, therefore fourth (Tex.Cr.App.1975), this court is over- review is without merit therefore did not have a held that defendant ruled. jury interrogate the witness before the privilege her each and have invoke when ground Appellant’s fifth for review Id. at Defense question was asked. urges that of appeals the court erred complained ask that “he wanted to assuming that Dal Bosco’s dealings what with the Dal Bosco Appellant the officers’. be consistent with omitted, were, why his name was and what ground. has failed to Our review brief presence he saw out there.” Outside Bosco’s testi record reveals Dal jury counsel to the court allowed defense hearing mony at the for a trial motion following tran- question Bosco. was consistent with and cumulative spired: material officers who testified at in all Therefore, did Defense Counsel: aspects. appeal the court of Accordingly, appellant’s fifth err. you Q. promised police that Were ground for review is overruled. today in here wound happened what has happen, you would never never ground Appellant’s review second testify? have to permitting urges that trial court erred informer Dal to assert a Fifth Amend- A. Yes. privilege. Appellant ment claims reversible Q. you paid make this How much were to re- error because the trial court refused case? testify jury. quire Bosco to before I’m not A. sure. contends Dal Bosco a material He you gave figure of Q. I think earlier us a agent. transaction a state witness possi- maybe a hundred dollars. Is that that the trial court failed He also contends ble? *7 into the meaningful conduct a examination A. Could be. privilege claim. legitimacy of Dal Bosco’s court of held that Dal Bosco’s The you Q. Did do a contract with ever against right “constitutional self-incrimina- charge police whereby for an earlier properly tion was honored.” you give you treat- against they lighter you if cooperated? ment during a The record reveals that No, A. sir. trial, ap Dal Bosco’s bench conference Dal that pointed counsel informed that like counsel he would Defense asserted testify. Bosco did wish to Outside entrapment try and the defense to raise court, jury, deter presence of the after gave permis- through Dal The court Bosco. mining with his that Dal Bosco had conferred question further sion for defense counsel inquired rights, his understood re-urged he should he declined and that but follows: question Dal in front allowed to Bosco be sir, right Being aware of The Court: All inquired of Dal Bosco jury. The court testimony? your rights you give wish do again. No,
Dal Bosco: sir. you again. Is it Let me ask The Court: you You Why The Court: decline? any question, any of your intention still have to tell me the reason. posed you questions that’s been these or to answer Well, might me to answered them decline it incriminate Dal Bosco: them? And ... for the main reason. Norman, supra, delivery I
Dal Boseo:
decline to
them.
a conviction for
answer
case,
informant-agent
heroin
a
asserted
ground?
The Court: On what
privilege against
Fifth
self-in-
Amendment
my
Dal Boseo: Because it’s detrimental to
given
This
held that
crimination.
Court
health, number one.
right to
facts of the case the defendant had a
The
sustain that
Court: We can’t
one.
informant-agent
call the
as a defense witness
I
Okay.
Dal
feel
Bosco:
like would
testimony
jury.
his
to the
Id. at
offer
incriminate me.
sought
present
entrap-
345. Norman
I
objection.
The Court:
sustain the
He
Agent
through
ment
the informant.
defense
right.
has
Take
man out.
officer,
Braswell,
a narcotics
testified
proceed.
Let’s
transaction,
in
informant
involved
hearing,
At
the motion for a
trial
Dal
major
play
part
bringing
did
in
the actors
a
his
Bosco testified about
observance of the
together
acting
and was
accordance with
drug
transaction between
and Offi-
his
informant
a
instructions. The
asserted
although
cer Rankin
he
to assert a
continued
ques-
privilege
Fifth
claim to
Amendment
privilege.
Fifth Amendment
concerning
relationship
tions
his
to one
Braswell,
actors,
relationship Agent
his
II.
agent
delivery.
role as a state
and the heroin
privilege against
The Fifth Amendment
This
concluded that
the law is well
Court
binding
self-incrimination
upon
the states
actually
settled that
an informant is
work-
through the Fourteenth Amendment. The
conjunction
at the direction of and
with
Fifth Amendment of the United
Con-
States
acting
agent,
a
as a
state
informant is
provides
part:
stitution
...
person
“No
agent and
under
privilege
State
his claim of
compelled
any
shall be
criminal case to be
spurious.
Id. at
Fifth Amendment
himself_”
a witness
It is axio-
right against
matic that the
self-incrimination
prohibit compulsion
is to
which
strikingly
The instant case is
similar
may expose person
prosecution.
to criminal
Here, appellant sought
to raise
Norman.
This Court has
is not
through
entrapment
the issue of
Dal Bosco.
only,
confined to an accused
but extends to
revealed
Dal Boseo was
generally
case,
type
witnesses
civil
transaction, brought
involved in the
the ac
criminal,
or
proceedings
grand
or in
before a
together,
acting
request
tors
and was
at the
jury.
parte Muncy,
See Ex
72 Tex.Crim.
Officer Rankin. At
Officer
541, 163
(1914);
S.W. 29
Fleishman
paid
testified that
493 (Tex.Civ.App.
- Texarkana
informant
that he had worked with on a
writ).
Supreme
no
Court Hoff
number of cases. He testified that Dal Bos
States,
man v.
U.S.
71 S.Ct.
spotted appellant
co
over to
and called him
(1951),
transaction. Under these
privilege
under such circumstances
actually working at
the direction Offi-
is
spurious.
In this
he
immune
thus,
be
context
agent.
he
state
cer Rankin and
was a
prosecution.
that
is the
from
We believe
prem-
Norman
correct limitation because
is
III.
holding
that state
ised on a line
cases
Norman, holds
an informant
that
illegal
agents
accomplices
are not
conduct
legitimate right to claim a
does not have a
they
charged to
Nor-
of which
are
discover.
under the
privilege against self-incrimination
Turner,
parte
545
quotes
man
Ex
S.W.2d
Fifth
once the informant ac
Amendment
proposition
(Tex.Cr.App.1977)
470
for the
agent.
a
If
quires the status of
state
Nor
if
that
is well
that
an infor
the law
settled
espouses
acting
rule that
informant
man
a
an
acting
agent,
a
mant
as
state
then
is
legitimate
agent
as a state
cannot assert a
Fifth
privilege
claim of
under the
informant’s
self-incrimination,
against
then
right
In
spurious.
Id. at
Amendment
is
compel
facts of
instant ease would
us to
Turner,
turn,
upon
supra,
premised
Wood
privilege
conclude that
Bosco’s claim
State,
(Tex.Cr.App.
ward
490
850
v.
S.W.2d
spurious.
under the Fifth
Amendment
1973) (holding
agent
that
undercover
an
However,
accept
should be
a
we
reluctant
agent
accomplice
long
as
does
not an
as
right
an
broad limitation of
informant’s
crime, merely
but
obtains
bring
not
about
against
solely
self-incrimination
because the
engaged in
against
to be used
those
evidence
a
agent.
informant
is a state
Such
rule
crime).
also,
State,
Vela v.
373 S.W.2d
See
ignores precedent
that a claim
self-
(holding
offi
(Tex.Cr.App.1963)
that an
personal
right
individual
incrimination is
if he
party
cer
not become a
to a crime
does
may
abridged
not a
that
be
based
therein, solely
purpose
participates
upon
claiming
status
individual
crime);
apprehending
engaged in
Burns
one
State,
right.
v.
such
Cherb
(Tex.Cr.App.1971)
Amendment claim with
Moreno, 536
v. Melchor
United States
police
concerning his
sanctioned conduct.
(5th Cir.1976),
F.2d
however,
informant-agent,
does have a
government
informant should have been
legitimate Fifth
claim with re-
Amendment
witness stand and directed
called to the
spect
may
be related to the
other acts
testimony sought
give
part of the
at least
subject offense.
raised an en-
the defense.
defendants
Thus,
sought to
trapment
called
ques-
limited
defense
Norman’s rule is
sug-
The evidence
the infor-
informant as witness.
tions that seek evidence about
respect to the
gested
the informant with
appre-
mant’s
sanctioned conduct
*9
transfer,
though
delivery by
even
the
appeals
actual
Boyer,
court of
the
4.
In
this Court reversed a
not,
agent of law enforce-
holding
parties
could
as an
the
informant
ment,
that under
law of
neither
responsible
criminally
agent
for
the
could be
be
the informant nor
undercover
offense,
Although
the
this is not
contention
neither could the
offense.
convicted of an
then
here,
principle
drugs
that the law enforce-
the
made
the
The defendant transferred
defendant.
criminally
drugs
agent
his
cannot be
the
ment officer or
to the
who then transferred
informant
responsible
legal
apprehend-
their
conduct in
agent. Boyer
for
the
stands for the
to
undercover
applies
the Fifth
may
in the context of
proposition
be
defendant
that a confidential informant
privilege
in this
jury charge
party
case.
properly
Amendment
asserted
in the
listed
charged
acting
ground
in cooperation
disposing
appellant’s
offense
In
second
review,
government agents.
majority opinion
with
for
The court
the
addresses
found
question
the
whether Dal Bosco had a
explain why
that the informant failed to
his
right
privi
to assert
the Fifth Amendment
negotiations with the defendants over the
However,
lege.
appears
major
it
appellant’s
heroin sale —the
most critical to
complaint
the trial court and the Court of
the
entrapment
defendant’s
contention—
Appeals
only
is that Dal Bosco could
assert
expose
would
him to
prosecution.
risk of
Id.
open
jury.1
privilege
court
the
before
at 1049. There the informant failed to estab-
(Tex.
State,
See Reese v.
846 S.W.2d
lish
privi-
entitlement to a Fifth Amendment
1992) (trial
App.-Houston
judge
[14th Dist.]
lege
subject
pro-
to the entire
of his
matter
request
appellant’s
require
refused
spective testimony.
privilege
open
Bosco to assert
court
jury);
majority opinion
before
see also
IV.
(appellant claims reversible error because
case,
In the
instant
in
require
the trial court refused to
Dal Bosco
formed the court
he
that wanted to raise the
testify
jury).
majori
Even
before the
entrapment
through
issue of
Dal Bosco.
ty opinion acknowledges that:
During the examination at trial Dal Bosco
“Appellant’s
agreed
that Dal Bosco
why
failed to establish
with
right
urged
had a
to claim
5th’
‘the
but
respect to
delivery
subject
the cocaine
only
right
open
that he could
assert that
prosecution.
him
may
to criminal
A witness
jury.”
court before the
not withhold
all
the evidence demanded of Therefore,
apparently
conceded the
merely
him
may
pro
because
some
it
be
validity of Dal Bosco’s Fifth Amendment
tected from disclosure
the Fifth Amend
claim,
appears
majority
and it
reverses
Moreno, supra.
ment. Melchor
We hold
on
adequately pre-
an issue that never was
case,
that under
facts
of this
Dal Bosco’s
sented to either the trial
or
court
the Court
privilege
claim of
under the Fifth Amend
52(a).
Appeals.
Tex.R.App.Proc.
See
ment was too broad and therefore we find
addition,
majority
In
on
relies Norman
spurious. Thus,
that it was
the trial court
(Tex.Cr.App.1979),
Court of analysis that Dal when it determined
harm at adduced trial
Bosco’s
hearing was reflective and cumulative oth- to raise an
er evidence which was insufficient
entrapment defense.
“Also, upon examining Boseo’s testi-
mony hearing the motion for new
trial, we find no new or different evidence testimony, from his
would have resulted fairly and
it was reflective cumulative Rankin’s earlier statements.”
Officer
Reese, 440. at S.W.2d analysis
Remanding case a harm this for judicial futility
an exercise in and waste petition for Appellant’s discre-
resources.
tionary dismissed as review should either be granted judgment or the
improvidently Appeals be affirmed. Be-
Court should occur, I neither of these events dissent. cause Mason, Dallas, appellant. Edgar A. for WHITE, JJ., join this CAMPBELL Dallas, Batjer, appellee. Sharon dissent. LAGARDE, OVARD and
Before BURNETT, JJ. REMAND
OPINION ON OVARD, Justice. Court, original submission this Cas-
On appealed her convic- sandra Yolanda Hooks HOOKS, Appellant, Cassandra Yolanda aggravated tion assault. court, guilty in a appellant pleaded had guilty her Texas, bench trial. The trial court found Appellee. STATE years’ con- punishment assessed ten No. 05-91-00730-CR. finement, years. appeal probated for ten On Court, brought one before Texas, Appeals of Court of point complaining that of error her waiver Dallas. involuntary jury unintention- trial was Dec. al. opinion, original In our this Court judgment void be that the trial court’s was finding guilty neces cause the trial court’s finding sarily an affirmative involved used, deadly weapon so as ineligible probated for the sentence judgment we held the sessed. Because void, not ad held that we need we further complaint. jury-waiver Hooks Hook’s dress (Tex.App. - Dallas rev’d, 1992), (Tex.Crim.App.