Byerley v. State, 40561
| Decision Date | 26 July 1967 |
| Docket Number | No. 40561,40561 |
| Citation | 417 S.W.2d 407 |
| Parties | Marshall E. BYERLEY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Brown & Hamby, by E. L. Hamby, Big Spring, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is the use of profane language over a telephone; the punishment, two months in jail and a fine of $200.00
In order to properly appraise appellant's grounds of error contained in his brief filed in the trial court, it will be necessary only to outline the State's case. The prosecuting witness, a sixteen year old school girl whose mother was employed, received a series of telephone calls from the same person on the day charged in the information. The first call was presumably in answer to an ad she had run in the newspaper offering her services as a babysitter. It was during the course of these calls that the obscene and indecent suggestions were made by the caller. Later in the day appellant was apprehended as he approached the prosecuting witness' automobile and identified himself as being the person who had called.
His first ground of error is the failure of the court to charge on the law of entrapment. He predicates his claim that such defense should have been submitted upon the following question and answer taken from his cross examination of the prosecuting witness:
'Q. Becky, did it ever occur to you when you were talking to this fellow on the telephone that maybe you were putting ideas in his head by your conversation; that maybe you were letting him be a little bit too fresh; that maybe you ought to hang up?
A. Well, at first, I wanted to, but the police told me to go along with him.'
We quote further from her testimony in answer to questions propounded by appellant's counsel:
'Q. Up to that point, had there been anything obscene said over the telephone?
A. Well, not obscene, but it was * * *
Q. Suggestive?
A. It seemed to me suggestive.
Q. All right. Then after your mother told you to play along with him, you proceeded to do just that when he would call?
A. Yes, sir.'
At no time did Becky testify that she had talked with the police personally. After Becky reported appellant's first call to her mother, her mother contacted the police, but the police had no contact with appellant prior to his arrest.
We quote from Henderson v. United States, 5 Cir., 237 F.2d 169, 175, 61 A.L.R.2d 666:
'Well settled, of course, it is that the doctrine of entrapment does not extend...
To continue reading
Request your trial
-
Godin v. State
...available to a defendant who denies that he committed the offense charged. Reed v. State, Tex.Cr.App., 421 S.W.2d 116; Byerley v. State, Tex.Cr.App., 417 S.W.2d 407; McCarty v. United States, (5th Cir. 1967) 379 F.2d 285; see 61 A.L.R.2d Had appellant admitted possessing the heroin, the def......
-
Canales v. State, 46414
...441 S.W.2d 196. The defense of entrapment is not available to one who denies that he committed the offense charged; Byerley v. State, Tex.Cr.App., 417 S.W.2d 407; Godin v. State, supra. The issue of entrapment was not raised by the evidence. Appellant denied the existence of the entire tran......