Opinion
No. 05-09-01529-CR
Opinion Filed October 24, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 429th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-82041-08.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
A jury found appellant Russell Ryan Nelson guilty of delivery of four grams or more but less than 200 grams of cocaine. The trial court sentenced appellant to twenty-five years' confinement. Appellant contends the trial court erred by refusing to submit a jury instruction on the defense of entrapment and by allowing the prosecutor to read the statute concerning voluntary intoxication into the record before the jury. Appellant also contends he was deprived of a fair trial by the State's closing argument, which emphasized the prosecutor's statutory duty to seek justice. We affirm the trial court's judgment.
Background
Detective Joseph Lawrence testified at trial that he and his partner were following up on a lead that drugs were being sold at the Varsity Club, a sports bar in Plano. They entered the bar undercover, and appellant caught their attention. He was sitting alone at the bar, using his cell phone often, and he seemed to know many of the people inside the bar. Lawrence approached appellant and, after a very brief conversation, Lawrence asked whether appellant knew where Lawrence could get some methamphetamine. Appellant replied that he did not, but that he did know where he could get cocaine for Lawrence. Appellant asked Lawrence how much he wanted; Lawrence told him he had $200. Appellant made a phone call and told Lawrence he could deliver six grams of cocaine to him in about fifteen to thirty minutes. Lawrence obtained appellant's cell phone number and then gave him the $200. Appellant left and returned in approximately twenty minutes with the cocaine. He delivered it to Lawrence in the restaurant area of the bar where the tables were closed. But Lawrence described appellant's demeanor as quite comfortable with the transaction: [He was p]retty laid back. He was pretty loud. He wasn't scared; he wasn't nervous about talking about the cocaine. You could tell [he] knew everybody in the bar [and] that no one minded what was going on. I'm pretty certain that another bartender knew that he was selling cocaine to me.I was trying to keep a low tone of voice. I didn't want people to hear what we were doing. I mean, we were basically committing a felony, but he was loud. Didn't bother him at all to talk about cocaine.Lawrence testified that appellant told him he could call anytime to buy more cocaine. Lawrence contacted appellant a number of times after the initial transaction and attempted to arrange another purchase. But after putting Lawrence off more than once, appellant ultimately told Lawrence he could not help him. Lawrence admitted that he did not remember much of his conversation with appellant: he did not record any part of the transaction. He acknowledged that his job in this situation was to get appellant to trust him. He agreed that he engaged appellant in a manner to try and disarm his defenses. But he denied making any promises or guaranties to appellant in exchange for the transaction. Lawrence was the only witness who testified to the transaction underlying the delivery at issue in this case. The jury found appellant guilty, and the trial court sentenced him to twenty-five years' confinement. Appellant raises three issues in this Court.
Submitting the Defense of Entrapment
In his first issue, appellant contends the trial court erred in refusing to submit to the jury an instruction on the defense of entrapment. Appellant requested the instruction and tendered it in proper form at the charge conference. This was actually the second time during trial that the issue of entrapment had been raised with the court. After the State had concluded its case in chief, appellant sought to have the court take judicial notice of section 806(a) of the Texas Penal Code concerning entrapment and to read it into the record. The State objected, arguing the issue had not been raised by the evidence. The trial court agreed and denied appellant's requests to take judicial notice and to allow him to read the statute into the record. Appellant chose not to testify, and the defense did not call any other witnesses. Accordingly, the state of the evidence did not change from the time the trial court made its ruling on the judicial-notice issue until the time of the charge conference. Appellant argued-as he had for his judicial notice request-that Detective Lawrence's testimony raised the issue of entrapment. Appellant stressed that he had been drinking and that Lawrence initiated the drug transaction by approaching appellant. Lawrence admitted engaging appellant in conversation that was intended to obtain appellant's trust and to disarm appellant's defenses. Appellant stressed Lawrence's testimony concerning his inability to purchase drugs from appellant at a later date despite a number of efforts to do so. Appellant contended this later refusal was evidence that Lawrence `s persuasion was what had moved appellant to sell him the cocaine on their first encounter. The State countered that Lawrence had not brought up cocaine; appellant had. And the State argued there was simply no evidence of persuasion or inducement on the part of Lawrence. The judge announced his ruling would be the same, i.e., the defense was not raised by the evidence. He refused to give the instruction. Whether a defense is raised by the evidence is a sufficiency question reviewable on appeal as a question of law. Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007). A defense is raised by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that the element is true. Id. at 657-58. A court makes its determination relying on its own judgment, based on its own common sense and experience, in terms of what inferences may rationally be made from the evidence. Id. at 658. As a general rule, a defendant has the right to an instruction on any defensive issue raised by the evidence, whether such evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of this evidence. Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991). The evidence raising the defensive issue may come from the defendant's testimony or from other sources. Id. The Texas Penal Code provides:It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.Tex. Penal Code Ann. § 8.06(a) (West 2011). Entrapment exists if a criminal intent originates in the mind of the law enforcement agent, and the agent then induces the defendant to commit the offense. Barnes v. State, 70 S.W.3d 294, 304 (Tex. App.-Fort Worth 2002, pet. ref'd). It does not exist where the agent merely furnishes the opportunity for the commission of the offense. Id. A defendant relying on the defense of entrapment has the burden of producing evidence to establish every element of that defense; once the defense makes a prima facie showing of each element, the State has the burden of persuasion to disprove entrapment beyond a reasonable doubt. Hernandez v. State, 161 S.W.3d 491, 497-98 (Tex. Crim. App. 2005). Normally, a defense such as entrapment is a question for the jury to decide because it is determined largely by weighing facts and assessing credibility. Id. at 498. The entrapment defense has both subjective and objective elements. The subjective element requires evidence that the defendant himself was actually induced to commit the charged offense by the persuasiveness of the police conduct. Id. at 497 n. 11. If that subjective test is met, then we turn to the objective test. We ask whether the persuasion would have caused an ordinarily law-abiding person of average resistance to commit the offense. Id. Examples of persuasion that could amount to entrapment include pleas based on extreme need, sympathy, pity, close personal friendship, or offers of inordinate sums of money. Id. The key is that the method of persuasion must be likely to cause an otherwise unwilling person-not a "ready, willing, and anxious" person-to commit the offense. Id. In appellant's case, the subjective element requires evidence that appellant himself was induced to sell Lawrence cocaine by virtue of the detective's persuasion. Appellant relies primarily on the fact that Lawrence approached him about buying drugs; appellant did not approach Lawrence. However, when Lawrence approached appellant and asked whether he knew where the Lawrence could get some methamphetamine, Lawrence was merely affording appellant an opportunity to commit an offense, not persuading him to do so. Tex. Penal Code Ann. § 8.06(a). That was not entrapment. See id. Moreover, when appellant was presented with that opportunity by Lawrence, he did not simply reply that he did not know where Lawrence could buy methamphetamine; instead, appellant volunteered to provide Lawrence with cocaine. Appellant asked how much Lawrence wanted to buy, took $200 in payment, went to his "primary source" down the street to pick up the cocaine, returned to the bar, and delivered it with no apparent concern for the public nature of the delivery. After the transaction was completed, appellant told Lawrence he could get Lawrence whatever cocaine he wanted in the future and to call him anytime. We discern no evidence that Lawrence somehow persuaded an unwilling appellant to sell him cocaine. On the contrary, the record indicates appellant was ready and willing to do so. Appellant has not met the subjective element of the defense of entrapment. Accordingly, the defense was not raised so as to require its submission to the jury. See Shaw, 243 S.W.3d at 657-58. We overrule appellant's first issue.
Taking Judicial Notice of a Statute
In his second issue, appellant complains that the trial court allowed the prosecutor to read a statute into the record before the jury, ostensibly for the purpose of having the court take judicial notice of the statute. The statute was section 8.04(a) of the Texas Penal Code, which states: "Voluntary intoxication does not constitute a defense to the commission of crime." Appellant argues that reading the statute was improper because there was no evidence in the record at that time that could have allowed a jury to conclude appellant's intoxication excused his actions. In the absence of such evidence, appellant contends, reading the statute was a comment on the weight of the evidence. And because the trial court permitted the reading, appellant further contends, the jury could have attributed the comment to the trial court. We need not address either the existence of evidence of intoxication or appellant's proposed attribution of the prosecutor's action to the trial court. Appellant acknowledges he did not object to the reading of the statute to the jury. A defendant's right not to have the trial judge comment on the weight of the evidence or convey his opinion of the case is waived by the failure to object at trial. In re A.B., 133 S.W.3d 869, 876 (Tex. App.-Dallas 2004, no pet.). Likewise, any complaints about the propriety of a trial court's taking judicial notice are waived if raised for the first time on appeal. Broussard v. State, 598 S.W.2d 873, 874 (Tex. Crim. App. 1980). Appellant contends an objection would have been useless because a curative instruction would not have rendered the reading harmless. We disagree. If appellant had objected and asked for an instruction, the trial court could have informed the jury that the mere reading of the statute was not to be considered as an expression of the court's opinion concerning the evidence. We may presume the jury would have followed the trial court's instruction in the manner presented. See Bell v. State, 326 S.W.3d 716, 723 (Tex. App.-Dallas 2010, pet. dism'd). We overrule appellant's second issue.Arguing the Prosecutor's Statutory Duty
In his third issue, appellant argues he was deprived of a fair trial by this statement the prosecutor made during closing argument: But I will tell you, and if you recall, the very first thing that I did before I called my first witness in this case was have the Judge to take judicial notice of another Section, 2.01, in the Code of Criminal Procedure, duties of a district attorney where it says the duty of a district attorney is to seek justice, not to convict, but to seek justice.There is no other place within the Code of Criminal Procedure, within the Penal Code, or anyone other than a district attorney held to a standard like that.Appellant acknowledges that he did not object to the statement at trial. He contends, however, that his failure to object was excused because no remedial instruction from the trial court could have cured the harm caused by the prosecutor's statement. We disagree. The Court of Criminal Appeals has made clear that a defendant may not complain on appeal about an erroneous jury argument-or argue that an instruction to disregard could not have cured the erroneous jury argument-unless he can show he objected and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010) ("[W]e will not review the propriety of the prosecutor's arguments, as appellant failed to object to those arguments at trial. He has failed to preserve any issue for appeal."). Appellant has failed to preserve this issue for our review. We overrule his third issue.