NO. 07-01-0434 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C JULY 15, 2002

______________________________

ANTONE RICHI E, Appellant
v. THE STATEOF TEXAS , Appellee

_________________________________ FROM THE 180 TH DISTRICT COURT OF HARRIS COUNTY; NO. 857,643; HON. LARRY FULLER, PRESIDING

_______________________________ Before QUINN, REAVIS, and JOHNSON, J.J. Antone Richie ( appell ant) appeal s his convi ct ion for delivering a controlled substance, namely cocaine. The thr ee issues pres ented on appeal involve his claim of entrapm ent. That is, he first contends that the trial court erred in refu sing to gra nt h is mot ion to dismiss t he pro sec utio n be cau se it was established, pre-trial and as a matter of la w, that he was entrapped. Also ass erted ar e the pr opo siti onstha t th e j ury ’sim plici t finding that hewas

not ent rapped e njo yed neith er legally nor f actually s ufficient e videntiary2

support. Bec au se th e co nt en ti on s ar e i nt er twi ned , we co nsid er t hem tog eth er, ove rru le each, and affirm the judgm ent. Authori ty According to statute, it i s a defense to prosecution “that the actor engaged in the conduct cha rged because he w as induced to do so by a law enforcem ent agent using persuasion or other

m eans likely to causepersons to com m it the off

ense.” T EX . P ENAL C ODE A NN . §8.06(a) (Vernon 1 994). However, “[c]onduct m erely affording a person an opportunityto comm it an offense does not” fall within that category. Id. Fur the rm ore , th is defense, com mon ly know n as entrapm ent, can be determ ined at trial by the factfinder (assum ing evidence exists to suppo rt its subm ission), Texas Penal Code A nn. §2.03(c ),
or via a pretrial hearing. Taylor v. State , 886 S .W.2d 262, 265 (Tex. Crim. Ap p. 1994)

. And, irrespective of the setting in which it is addressed, t he State generally has the burden to disprove its existence beyond reasonable doubt. Id. Yet, the duty of the S ta te t o satisfy its burden does not ripen until the defendant produces evidence sufficient to raise the defense. Id. ; See Russel l v. State , 904 S.W.2d 191, 197 (Tex. A pp.–Am arillo 1995, pet. ref’d) (stating that becau se ent rapment is a defense to prosecution, the initial burden of prod ucing evidence to raise it is on the defendant

w hile t he b urd en of pe rsu asio n todisp rov e it remainswith the State). M oreover, the evidence m ust illustrate not only that the defendant w as induced to act as he did but also that the conduct i nducing hi m to so act “was su ch as to induc e a n o rd in ar il y l awabiding person or avera ge resistance.” England v. State , 887 S.W.2d 902, 913 (T ex . C ri m.3

App

. 1994); Freeman v. State , 998 S.W.2d 379, 382 (Tex. App. –Texarkana 1999, pet. dism’d). Finally, i f the defense is addressed via a pretrial hearing, the trial court sitting as the fact-finder is entitled to weigh the evidence and from the circum stances draw a legal conclusion as to w hether the accused w as entrapped. Taylor

v. State , 886 S.W.2d at 265. And, to the ex

tent that it m ayweigh the evidence, its resol ution of conf licts i n that eviden ce is entitled to deference. See Guz man v. State , 955 S.W.2d 85, 89 (Tex. Crim . App. 1997) (holding thatthe trial court’s general const ruction of historical fa ct is ent itled to def erence). Similarl y, if the issue is presented at trial to a jury, the latter’s i nterpretati on of the evide nce and resolution of conflicts therein is also entitled to deference. See Li ggins v . State , 979 S.W.2d 56, 63 ( Tex. Ap p.–W aco 1 998, pet. ref’d) (stating tha t the reviewing court must give “due def erence to the j ury’s assessm ent of the credibility of the witnesses a nd the weight to be given their testim ony” when a ddressing a claim of entrapm ent); Hernandez v. State , 938 S.W.2d 503, 512 (Tex. App. –W aco 1997, pet. ref’d) (stating the sam e). Applica tion of Author ity As a result of the pretrial evidentiary hearing convene d to address appel lant’s mot ion to dismiss “bas ed on entrapm ent,” the trial court had before it the following evidence. Officer Max well ap proac hed appellant (who was standing outside a convenien ce store) and asked if he (appellant) “‘had seen Charles’.” Appellant responded byasking “‘Char les who?’” “‘Black Charles,’” said Max well. Appellant then stated that he did not know “Black Charles” but nonetheless asked “‘ what do you want with’” him. A t that1 According to Maxwell, a “twe nty” was “a slang term f or $20 w orth of crack cocaine.” 4 point, the officer said that the individual “‘hooks m e up, I’mjust trying to get a twenty.’” 1 Then, appellant “told [Maxw ell] that he could go take [him ] to get 20 dollars worth of crack”
on “Broadwa y.” Max

well agreed to appellant’s proposal and the two entered Max well’s car and drove to an apartm ent com plex as per appellant’s directions. When they ar r ived, appellant told the officer that m oney was needed, and Max

well gave him $20. Appellant then “wa lk ed be twe en two buildings,” returned “a few m inutes later” and handed the officer “a ro ck o f co ca in e. ” T he two departed the scen e in the car, at which time the officer “ga ve a bust signal” which resulted in the arrest of app ellant. Appellant did not deny purchasing the crack cocaine f or the officer. Instead, he claimed he did so in exchange f or paym ent and a ride to a local hospital because he had hurt his hand ear lier in theday and w as in pain. That was the supposed reason appellant
wasat the con ven ie nce store; he w as purportedly waiting for a ride froma friend to the hos pita l. Furtherm ore, Max well’s advances regar ding t he acquisition of a controlled substance were initi ally r ebuffed, accord ing to appe llan t. Alleged ly, appe llant did not acquiesce until he was offered mo ney and a ride to the hospital. Furtherm ore, according to appellant, Officer Maxw ell, as opposed to appellant, suggested the location at which the contraband could be acquired. Needless to say, Max

well denied that appellant informed himhe wasinjured or that
a ride to the hospital would be provided if appellan t bo ugh t himcocaine . S o to o did Ma xw ell de ny the statem ent that he, M axw ell, suggested the location at which the contraband could be bought.5

As fact-finde r at the pretri al heari ng, the tria l court was entitl ed to cr e dit the testimony

of Max well. Taylor v. State , supra . Furthermore, Max well indicated thatw hile he a pproa ched appellant, inquired into the whereabouts of “B lack Charles,” and m entioned thathe was “trying to get a twenty,” it was appellant who volunteered toacquired it for hi m. In other words , Max

well effectively testified that appellant volunteered to acq uire the substance even though Max well had not asked himto do so. To the ex tentthat an officer ’s sim ply ask ing a n ind ividu al tobuy a c ertain quantity of drugs does not cons titute entrapm ent, see Hernandez v. State , 938 S.W.2d at 512 (wherein the officer testified that “he did no more t han ask Hernandez to sell him specified am ounts of m arijuana and

. . . cocaine” and the court held th at the “evid ence presented at trial [was] consistent w ith the State’s theory that

Officer Led esm a m ere ly af

for ded Her nan dez

an o ppo rtu nity

to com m it the offense” which was not entrapm ent), volunteering to buy drugs for a law enforcem ent officer be fo re be i ng as ke d t o d o s o c er ta i nl y c an no t b e e nt ra pme nt. Simply put, ment ioning to another one’s desi r e to purchase contraband is not inducement sufficient to ove rco m e th e w ill of an o rdin ary

la w -ab id ing perso n with average resi stance. Thus, because the trial court had before it som e evidence negating the contention that appellant was entrapped, it di d not err in denying hi s motion to dismiss. Similarl y, we do not

find that the jury rendered an im pro per ver dict since it ultim ate ly convicted appellant. This is so because evidence virtually identical to th at des cribed above was

offered and adm itted at trial. Thus, it too was f aced with resolving credibility issues and confli cts in the testi mony. Nothing requir ed it to bel ieve appel lant’s version of the facts . Being the fac t-finder, it wa s well within itsprerogat ive to cre dit the of ficer. And,6

if it decided to belie ve t he officer, ithad som e evidence upon w hich to rationally conclude, beyond reasonable doubt, that appellant was not induced to act by conduc t sufficientto
ov er co me the will of an ordinar y l a w-abiding person of average resistence . Thus, the verdict did not lack the support of legally sufficient evidence. Nor did the verdict lack the support of fac tually suff icient e vidence. Th is is so because while t here is evide nce to contradict Max well’s testim ony, that evidence w as not so overwh elming as to render the verdict clearly wrong or manifestly unjust , as required by Clewis v. State , 922 S.W.2d 126 (Tex. Crim . App. 1996) and its progeny . To reiterate, the jury was free not only to resolve credibility issues but also to do so as it did. Accordingly, the j udgme nt of the trial court is affirmed.

Brian Quinn Justice Do not publish.