## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00299 - CR

KEITH D. HAMILTON APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- I. I NT RODUCTION A jury found Appellant Keith D. Hamilton guilty of theft of a vehicle valu ed at $1,500

– 2 0,000 and of unauthorized use of a vehicle

. See Tex. Penal Code Ann. §§ 31.0 3(e)(4)(A), 31.07 (West Supp. 2011). A fter Hamilton pleaded true to the enhanc ement paragraph in the indictment, the trial court sentenced him to twenty years ’ imprisonment for each count , ordering that the sentences run

1 See Tex. R. App. P. 47.4.2

concurrently

. In two points, Hamilton argues that he was entitled to a jury instruction on entrapment and that h is sentence s w ere grossly disproportional to the offense s . W e will affirm.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND T he Auto Crimes Task Force of the Fort Worth Police Department uses a

― bait car program ‖ to combat vehicle burglary and auto theft ; as part of the
program, ― bait c ars ‖ equipped with GPS trackers, cameras , and devices to remotely turn off the vehicles are used to identify and apprehend vehicle thieves

. O fficers set up a bait car in a high

- crime area o f South Fort Worth. They left the engine ru nning; left the door ajar; left the lights on ; and left clothing, cigarette wrappers, a sack containing empty beer cans, and a cardboard beer box inside the bait car as ― props ‖ to make the vehicle look like it belonged to a ― regular individual[]

. ‖ Approxi mately three minutes after officers left the vehicle, an alarm was activated, indicatin g that the vehicle was moving. Two officers followed the vehicle and shut off the engine remotely from inside their patrol unit , causing the bait car to stop

. Hamilton was the sole occupant of the bait car , and officers arrested him. A cold beer can was in the center console, but officers did not recall if they had put it there as a prop

.

III. J URY I NSTRUCTION ON E NTRAPMENT In his first point, Hamilton argues that th e trial court erred by denying his request for a jury instruction on entrapment . Hamilton argues that he was entitled to such an instruction because the officers ― went too far in providing extra3

enticements in order to overcome the average citizen ’ s resis tance to commit the offense ‖ by leaving the bait car running, with the door open and a cold beer inside of it, in a known high

- crime area. The State responds that this court has already held that the use of bait cars under similar facts do es not constitut e entrapment and that those opinions control here

. See Adams v. State , 270 S.W.3d 657 , 662 (Tex. App.

— Fort Worth 2008, pet. ref ’ d); Keeton v. State , No. 02

- 07

- 00243

- CR, 2008 WL 755294 , at *2

– 4 ( Tex. App.

— Fort Worth Mar. 20, 2008 , no pet. ) (mem. op., not d esignated for publication)

. In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. See Abdnor v. State , 871 S.W.2d 726, 731

– 32 (Tex. Crim. App. 1994); see also Sakil v. State , 287 S.W.3d 23, 2 5

– 26 (Tex. Crim. App. 2009). If error occurred, we then evaluate whether harm resulting from the error require s reversal. Abdnor , 871 S.W.2d at 731

– 32. Entrapment is a defensive theory. See Tex. Penal Code Ann. § 2.03(c), (d) (West 2011). If evidence s upporting the defense of entrapment is admitted, the issue must be submitted to the jury with the instruction that a reasonable doubt on the issue requires acquittal. Id. § 2.03(d). In determining whether evidence raises a defense, the credibility of the evidence is not at issue. Muniz v. State , 851 S.W.2d 238, 254 (Tex. Crim. App.), cert. denied , 510 U.S. 837 (1993); Barnes v. State , 70 S.W.3d 294, 304 (Tex. App.

— Fort Worth 2002, pet. ref’d). In other words, if a defendant produces evidence raising eac h element of a requested defensive instruction, that defendant is entitled to the instruction4

regardless of the source and strength of the evidence. Hamel v. State , 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Barnes , 70 S.W.3d at 304. Texas Penal Code sec tion 8.06 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 likely to cause persons to commit the offense. Conduct merely affo rding a person an opportunity to commit an offense does not constitute entrapment. Tex. Penal Co de Ann. § 8.06(a) ( West 2011 ). Entrapment exists if the criminal intent originates in the mind of the police agent and the agent then induces the accused to co mmit the offense. Barnes , 70 S.W.3d at 304; Torres v. State , 980 S.W.2d 873, 875 (Tex. App.

— San Antonio 1998, no pet.). The test for entrapment under section 8.06 is a two

- pronged test composed of sub jective and objective elements. England v. State , 887 S.W.2d 902, 910 (Tex. Crim. App. 1994); McGann v. State , 30 S.W.3d 540, 545 (Tex. App.

— Fort Worth 2000, pet. ref ’ d). For the subjective element , the accused must show that the police actually induced him into committing the charged offense. England , 887 S.W.2d at 913. For the objective element, the accused must show that the persuasion used by the police was suc h as to cause an ordinarily law

- abiding person of average resistance to nevertheless commit the offense. Id. In Adams and in Keeton , this cour t held that the entrapment defense did not apply when a bait car was left in a high

- crime area with the doors unlocked, the windows down, and the keys on the console. See Adams , 270 S.W.3d at 659, 662 ; Keeton , 2008 WL 755294, at *1, 4

. The fact s that the bait car in this5

case was left running with the door open and a cold beer in the center console does not change our analysis. In other words, the bait car

— even with the added

― enticements ‖

— still merely afford ed an opportunity to commit the offenses commi tted by Hamilton

. See Tex. Penal Code Ann. § 8.06(a); Adams , 270 S.W.3d at 662; Keeton , 2008 WL 755294, at *2

– 4. No evidence exists that the police actually induced Hamilton into committing the charged offenses or that the bait car would have cause d an o rdinarily law

- abiding person of average resistance to nevertheless commit the offense s

. See Tex. Penal Code Ann. § 8.06(a) ; England , 887 S.W.2d at 913. Accordingly, we overrule Hamilton’s first point. IV. P ROPORTIONALITY OF S ENTENCE In his second point , Hamilton claims that his twenty

- year sentence s w ere grossly disproportionate to the offenses, constituting cruel and unusual punishment in violation of the United States and Texas c onstitutions. To preserve for appellate review a complaint that a sentenc e is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Russell v. State , 341 S.W.3d 526, 528 (Tex. A pp. — Fort Worth 2011, no pet.); Laboriel

- Guity v. State , 336 S.W.3d 754, 756 (Tex. App.

— Fort Worth 2011, pet. ref ’ d) ; Kim v. State , 283 S.W.3d 473, 475 (Tex. App.

— Fort Worth 2009, pet. ref ’ d) ; see Tex. R. App. P. 33.1(a)(1); Lovill v. State , 319 S.W.3d 687, 691

– 92 (Tex. Crim. App. 2009). Further, the trial court6

must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court ’ s refusal to rule. Tex. R. App. P. 33.1(a)(2); M endez v. State , 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Wilson v. State , 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh ’ g). Here, Hamilton d id not object to his twenty

- year sentences or file a motion for new trial raising the disproportionality argument that he now asserts. Consequently, this argument is not preserve d for our review

. See Tex. R. App. P. 33.1(a)(1); Russell , 341 S.W.3d at 528 ; Laboriel

- Guity , 336 S.W.3d at 756 ; Kim , 283 S.W.3d at 475

. We overrule Hamilton ’ s second point. V. C ONCLUSION Having overruled Hamilton ’ s two points, we affirm the trial court ’ s judgment.

SUE WALKER JUSTICE PANEL: WALKER, MCCOY, and GABRIEL, JJ. D O NOT PUBLISH Tex. R. App

. P. 47.2(b ) DELIVERED: April 5, 2012