*1 At that time requested quite is when he that dark with the around the traffic I would him in County meet Mid airport.
receive the evidence after this case night got to 9:00 I Later that closer go down somewhere in vicin- case.” second of 6:00 is ity when it was set originally abundantly Deputy It is clear that Mat- In that up. time frame. lock’s not the truth testimony go did doing That would be other cases Vickery, matters stated him Joe night. that Deputy but was offered how only explain I agreed So meet with at the his Matlock into cus- receiving remembered County Mid office. When he came in tody the evidence used in the instant case. at about 7:15 he said we have two got “Occasionally may legitimately a witness of them. testify to statements allowed to as court, simplest I what said mean. made to him out as you do time, way place, or identifying got mother-daughter We have combi- occasion, body to which the main nation. relates, explaining or otherwise That was only mother-daughter such evidence. For this evi- purpose, combination that we made throughout obviously hearsay dence is the whole drug operation. That is the mat- prove statements are not used to mother only that sold and the only of Evi- ters stated therein.” Law Ray, daughter that in pairs. sold 1A, (1980) Volume dence I night. And remembered that When page 62. he came in at 7:15 that was the first non-hearsay. This is a textbook case time that I seen him and I had do know agrees, must Until the I dissent. that was the case Urich cause talked about it. JJ., CAMPBELL, join W.C. DAVIS At time he wanted to know in this dissent. go whether or he should further and make buys other from if Urichs was possible. words,
In other he needed okay from me was talk cause there of black being sold,
mollies biphetamine 20. We had run problems into losses of
biphetamine Biphetamine fake. being dumped were placed out caffeine aka Blanco RODRIGUEZ Roberto in it. Sanchez, Johnny Appellant, We discussed whether or not these peo- good were ple actually supplying black mollies and could. Texas, Appellee. The STATE sup- He so stated he felt she No. good That plying narcotics. she had Texas, Appeals Court of Criminal got stated that she them her doc- En Banc. tor or a doctor. I gave okay go And him the ahead Jan. make if it was buys possible. other For that I remember partic- reason I
ular date. remember this was about I 7:15 as a little bit concerned agents coming about undercover really when it wasn’t into area
OPINION
CLINTON, Judge. guilty was found of two counts Appellant a jury over theft as- $200.00 at punishment years sessed five and nine counts. years respective on error, appellant In sole ground is contends insufficient sus- tain in that the evidence his conviction a he shows as matter of law that a entrapped. To decide that contention re- necessary, view of the facts is now testimony. turn to an examination the El Paso evidence shows that Po- lice Department conducting an under- cover “sting” operation. part As operation, two officers were set up oper- a carpentry shop. put ators of Word was people oper- out on the street that the who carpentry buy shop ated the stolen property. Sergeant William Pfeil testified 26,1979, that on he received a call February him if he would appellant who asked buy like to a Ford LTD.1 Pfeil replied he would like to see the car and he would for pay approximately Thirty it. $800.00 later, the car into appellant minutes drove shop. He related to the officers how he A had stolen the car. deal was struck and for the paid appellant the officer $900.00 car. 1,1979,
Pfeil also testified that March message a appellant called left machine. message answering Pfeil’s for appellant property said that had some and he carpentry shop the owners Appellant soon would call them back. and related that he had mo- called back appellant torcycle to sell. Pfeil instructed to meet When carpentry shop. him the Paso, Dick El Stengel, appellant. he found shop, Pfeil arrived Simmons, Atty. Steve W. Dist. and James sitting in front of motorcycle 650 Yamaha Carter, Paso, T. Atty., Asst. Dist. El Robert building. the door. Pfeil it into the pushed Huttash, Austin, Atty., State’s again he ex- appellant arrived Soon State. he to the officers how had stolen plained also he motorcycle. Appellant stated the officers
had a CB radio to sell. When appellant shop property. 1. Pfeil testified he had met and sold Pfeil two items appellant earlier date when had come to the appellant wanted, question asked much In to the ap- property. how he answer pellant now, Gallegos asked for The officers testified paid $200.00. where Sgt. and appellant Ange- left. Pfeil testified he in Los Gallegos believed they did not to call him. les but has been unable find regarding them property, stolen nor did On crossexamination reiterated ever appellant. initiate contact with *3 the working was for Gallegos police that Furthermore, he that never testified undercover, and that he knew he was work- appellant to told steal the Ford LTD or the for he ing “getting paid them because was motorcycle. Finally, Yamaha he testified Gallegos from them.” The reason was an Danny Gallegos that individual named brought 26 when he February with police department. did not work for the in the car in was that he “couldn’t come Appellant took stand the and testified. me,” he the with split with but $910.00 It was when first early February he came Gallegos nightclub immediately a after in agents into contact with of the United receiving LTD. He money for Ford States Customs Service or undercover Gallegos further in sale implicated agents of El Department, Paso Police motorcycle. he Danny and met with a man named that he was en- Appellant testified time, Gallegos point in at which is trapped. approximately March. a Approximately charge to theft the trial court As each him, meeting week after Gallegos ap- took abstractly law of jury instructed pellant to Carpenters. Nelson’s Custom substantially in terms of V.T. entrapment testified that there was another Appellant Code, 8.06, viz: C.A. Penal § person Gallegos gave appellant with who a “You it is a defense are instructed that wallet, and badge and that this other per- a in person engaged to that agent son was a told police officer. The against him because charged the conduct appellant, just you’re “You can tell them so law enforce- he was induced to do a agent.” Appellant undercover testified for persons acting or and on agent ment kept insisting that that he take agent using persuasion thereof or other act; behalf part that Officer Pfeil and his means cause companion them a bring asked him offense; however, en- conduct law Am. Trans affords agents forcement that that Appellant Danny knows now Galle- of- opportunity commit an person an gos police, is an agent undercover entrapment.” not constitute fense does Gallegos and he that is the cause testified charge law to applied Then becoming his involved with theft. On jury if the alleged, facts to the effect 26, 1979 February Gallegos was com- appellant from the evidence that found panion of in the theft of auto- appellant he because “solely committed the offense Gallegos participated mobile. entirely to do a law enforcement was induced so complainant’s Ford the transaction steal officer, or other means by persuasion LTD and complain- theft another so, have a you do or if person According appellant, ant’s motorcycle. matter, you will to such reasonable doubt as Gallegos receiving money po- from the by your and ver- say the defendant Carpenter acquit people lice take to Nelson’s Code, Y.T.C.A. Penal money splitting guilty.”2 dict See Shop taking also 2.03.3 what was received from sale stolen § 695, emphasis throughout by See also form supplied 2. All 698-699 opinion entrapment suggested Texas unless otherwise indi- writer instructions on 8.06; 34, Charges Jury cated. CPJC Pattern Criminal McClung, Jury Charges Criminal Texas 3. This has that an instruction on found 288-289; (Rev.Ed.1983) & Morrison Practice given in the instant similar to Blackwell, An Texas Criminal Forms Willson’s “correctly jury on the law case instructed notated, 85.07, 8 179-180. Texas Practice § State, entrapment,” Rangel v. To support predisposition contention relies out reference on an defendant.” excerpt particular from the opinion original submission in v. Langford 428, Id., 346; Bush 571 S.W.2d 327 (Tex.Cr.App.1978).4 Montgom also (Tex.Cr.App.1980); see However, Langford was a revocation of ery probation case, lead opinion and the makes App.1979) supra, there, clear the entrapment as in issue 328-331;6 Moses, Defense accord: Criminal others, all “will be case by- determined on a Sourcebook 360.7 case depending upon basis particular Thus, “predisposi- without reference id., case,” being of each at 332. That the theft of- tion” of true, given the ultimate disposition fenses, the issue was whether Langford by Banc,5 En we do not engage penal induced to conduct regard it having precedential much value alleged through persuasion other means *4 in resolving a question evidentiary of suffi- of- commit the ciency. opportu- fenses or was afforded an nity testimony them. As the The responds State the evidence it conflict, ante was trial summarized the presented did rebut every material eviden- court the issue to the properly submitted tiary matter claims entrap- shows a ver- jury jury to resolve. The returned ment, the upon but decisions it which relies and appellant’s testimony dict adverse were all decided penal under the former against the position, resolving thus issue code—before the entrapment defense of him. by Still, codified 8.06. with agree § the State that the The of conviction is affirmed. judgment evidence the issue raised as a of matter fact. J., MILLER, participating. not
With
8.06,
the
Legis
enactment
the
§
McCORMICK,
lature adopted
“objec
Judge, dissenting.
what is known as the
tive entrapment
is,
test.” That
capsuled
as
Court
Although
by
the result reached
the
in Norman v.
(Tex.Cr.
“The entrapment man- “objective” test today adopting Court is fact, dates that the having trier of once is, solely entrapment, looking determined that there was induce- the nature of the inducement. The ment, need now consider only the nature erroneously predisposi- fails examine involved, of the agent activity State with- tion of the and asserts that such an accused case, Lang 4. original panel opinion “On the facts of this could not State was overruled. burglary However, State, supra, and as ford v. at 738-739. probation then seek revoke his with State, supra, pointed we also out in Bush v. Having offense. failed to rebut or contradict by principles espoused Judge “the Phil of law entrapment, the defensive we hold lips’ panel opinion, unquestioned were prima case establish a facie by opinion delivered motion for rehear on entrapment.” case of id., law,” ing, n. 2. The remain viable original panel opinion same is of the on true Bush, itself, again submission in App.1979). of the concluded: “The facts of this case rehearing It is true that on motion for require judgment regard be affirmed” that the majority noted that “the Court as a will whole Id., applied. less of at 432. the test by holding judge not be bound one result;” judge concurring one and statutory 7.The definition opinion original since the “did submission “places objective emphasis on the nature contradictory testimony not set out as well subjective than state’s inducement rather agreed testimony,” “undisputed testi predisposition break of the defendant and is a mony entrapped shows was not with the federal defense.” law,” as a of fact matter in order “that trial misled,” judges attorneys not will inquiry en- Y.T.C.A., is not mandated Penal an offense does not constitute by added) Code, (Emphasis trapment.” Section 8.06. of the Practice Unfortunately, the writers This assertion is the language based on neglected to Commentary comment on Sec- Y.T.C.A., Commentary Practice Pe- by Legislature. tion adopted 8.06 Code, nal 8.06. is interesting Section It commentary Their is taken almost verbatim note language that the of the Practice Com- from the written for the 1970 commentary mentary 8.06, supra, to Section was written Thus, the Legislature draft. initially accompany the entrapment pro- of their focus scope chose to broaden vision of the 1970 of the proposed draft (a ready to commit from “one otherwise revision of the Penal This Code. 1970 draft Practice simply “persons." crime]’ Legislature 62nd wrong says is it Commentary clearly when thus never enacted law. The proposed into 8.06 focuses whether entrapment provision focused specifically to induce inducement method used inducement offered the law en- one innocent intentions. That is with agents ignored forcement completely the law. predisposition the accused: inter- statutory “The cardinal rule of “Section 8.05. Entrapment pretation legislative is to ascertain the a statute. Minton enacting intent “(a) It is a defense that a (Tex.1976). Frank, 545 Such peace officer, or person directed the mean- and a determination of intent *5 officer, a peace induced commis- upon the of a statute is to be based ing offense, sion of an in order to obtain v. of itself. Faulk language the statute evidence of the pros- commission for 625, State, 608 at 631. S.W.2d ecution, by creating methods a sub- proposed entrapment comparing In stantial risk the offense provision adopted eventually with the one be committed one not otherwise by Legisla- that the by Legislature, we see However, ready commit it. there an totally ture exclude did not want is no defense under this section if predisposition. examination the accused’s officer, the peace person directed him, an afforded actor cites four cases majority opinion The However, it seems opportunity argument.1 commit offense.” its support opinions were also (Emphasis added) that the writers of these misleading commentary on the relying In Legislature adopted the 63rd 8.06, Indeed, opin supra. panel Section Penal as we today. Code know it The en- (Tex. State, v. 428 ion in Bush 611 S.W.2d trapment provision by the adopted Legisla- enunciating the standard Cr.App.1980), ture considerably differed that of the used, Legis which the applies 1970 draft: proposed Penal in the 1970 lature Entrapment “Section 8.06 Code: “(a) It is a defense to 8.06, once under the test Section “So the actor engaged conduct is established the inducement element charged he was because induced only whether trial need consider court do so a law enforcement agent used are persuasion methods of using persuasion or other means willing persons ready the con- engage crime merely affording State, offense. Conduct v. 611 charged.” Bush duct added) a person (Emphasis to commit at 430 opportunity State, cases, State, cases, Langford 588 S.W.2d In Norman v. two of these v. 571 other two 1979), Montgomery 1978), (Tex.Cr.App. (Tex.Cr.App. Bush v. 340 (Tex.Cr.App.1980), (Tex.Cr.App.1979), are 611 S.W.2d 588 S.W.2d 8.06, panel opinions opinions adopted objective construe which Section rehearing. supra, in dicta. standard were overruled above, As noted this is not what the enacted 8.06,
version supra, and we says, TURNER, Appellant, Bobbie Gene not hold should intended drafters objective such an test to be used. Texas, Appellee. The STATE Court, en banc majority of this al- 927-82. No. issue, never though directly to this speaking has its acts previously denounced the Texas, Appeals Court of Criminal objective test for entrapment which the En Banc. majority now espouses. In State, Jan. (Tex.Cr.App.1978), S.W.2d 326 panel, concurring with one judge one judge dissenting, applied
test for and held under the the case a prima facie case of However, entrapment was established. rehearing, the en banc held that Langford not en- as a
trapped matter of law and fact or overruled the entire panel How- opinion.
ever, because the motion rehearing had filed, timely been left reversing
order Langford’s revocation of intact. Langford v. probation In Bush v. App.1980), panel Court, with one judge dissenting once again, applied
objective test for entrapment and found
evidence sufficient to raise of en the issue
trapment and reversed Bush’s conviction. rehearing,
On banc af majority en conviction, firmed Bush’s that re holding gardless of the standard used the evidence clearly insufficient to issue of raise the
entrapment. I
Because believe the the cur- drafters of rent Penal Code presented prior
revision law because case enactment of the Penal used Code subjective test,2 I only concur reached. result Houston, Burney, appel- Zinetta A.
lant. III, Bryan, Atty. Dist.
Travis B. Kuboviak, Atty., Asst. Dist. James M. Huttash, Aus- Atty., Robert State’s Bryan, tin, for the State. op See, example: (Tex.Cr.App.1973); Redman Co (Tex.Cr.App.1976); Poe v. Tex.Cr.R. er 1974); Kilburn (Tex.Cr.App.