England v. State

• Decision Date: 14 September 1994
• Docket Number: No. 762-93,762-93
• Citation: 887 S.W.2d 902
• Parties: Trace Gene ENGLAND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 902

887 S.W.2d 902

Trace Gene ENGLAND, Appellant, v. The STATE of Texas, Appellee.

No. 762-93.

Court of Criminal Appeals of Texas En Banc.

Sept. 14, 1994.

Allen C. Isbell, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., J. Harvey Hudson, and Kimberly Aperauch Stelter, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

After a jury trial, appellant was convicted of the offense of delivery of LSD, and his punishment was assessed at five years confinement and a fine of $10,000. In his sole point of error on appeal he contended that the trial court erred in allowing admission of evidence of several extraneous offenses, ostensibly to rebut his defense of entrapment. The court of appeals agreed, and, on authority of this Court's opinion on original submission in Bush v. State, 611 S.W.2d 428 (Tex.Cr.App.1980), reversed and remanded for new trial. England v. State, 856 S.W.2d 544 (Tex.App.--Houston [1st] 1993). The court of appeals held that, because predisposition is not an issue in the defense of entrapment under V.T.C.A. Penal Code, § 8.06, evidence of extraneous misconduct is not admissible in the guise of rebuttal evidence.

One justice dissented, arguing that the extraneous misconduct admitted in this case involved other, earlier transactions between appellant and the police agent he contended entrapped him, and were admissible to show the agent did not "induce" appellant, as required to establish entrapment under § 8.06, supra, but merely provided him an opportunity to commit the crime. The courts of appeals have split on this issue. Compare Houston v. State, 735 S.W.2d 903, at 905 (Tex.App.--Houston [14th] 1987, pet. ref'd) and Gilliam v. State, 749 S.W.2d 582, at 583 (Tex.App.--Eastland 1988, no pet.). We granted the State's petition for discretionary review in order to address the question of the admissibility of extraneous misconduct evidence to rebut the defense of entrapment. Tex.R.App.Pro., Rule 200(c)(1), (2) & (5).

I.

Appellant, eighteen years old at the time of the offense, met Victor Ayala, ten years older, at his job at a catering business in the latter part of January, 1990. ¹ Ayala was on probation for a felony offense in Chambers County, and was acting as an informant for several state and county law enforcement agencies, who paid him a certain amount of money for every drug deal he successfully orchestrated, at least in part according to the quantity of drugs involved. Early in their acquaintance, Ayala testified, appellant bragged to him "about how much money he was making selling drugs." They "talked ... about LSD and ... ecstasy," and appellant told Ayala that he could come up with these. Understandably, Ayala was interested.

Appellant and Ayala worked together for several months before both left the employ of the catering business. Appellant maintained he quit at least in part because Ayala "kept bothering" him about obtaining drugs for him. The exact chronology of what followed is not entirely clear, but this much can be gleaned from the evidence admitted at trial with reasonable certainty: In the latter part of March, Ayala telephoned appellant and asked him to supply LSD for a friend of his, a college student from Beaumont, one K.C. Anderson. In fact, Anderson was a Baytown narcotics officer, working undercover. Appellant called a friend, Ben Devine, who told appellant he had no LSD. Appellant called Ayala back and told him he could not accommodate Anderson. Afterward, Ayala continued to phone appellant two to three times a day, leaving messages on his answering machine that Anderson was "coming to town and might need something," and urging appellant to call him back. Ayala testified appellant did in fact call him back twice. Appellant admitted only that he talked to Ayala on "a few" occasions, and eventually quit returning his calls. Once, Ayala reached appellant at his new job, but appellant told him he was busy, and that Ayala should call him back, or that appellant would contact Ayala later.

In May, Ayala stepped up the number of calls to appellant to as many as ten to fifteen a day, leaving messages on appellant's machine. This continued for two or three weeks, but appellant never returned Ayala's calls because by then he "didn't want anything to do with [Ayala] at all." Finally, on May 30, according to appellant, Ayala called again and appellant answered the phone before the machine picked up. He did not want to talk to Ayala, however, because he "knew why [Ayala] was calling." Ayala told appellant that Anderson was getting "very upset" and "irritated," and asked appellant to provide 500 "hits" of LSD to make her trip from Beaumont worthwhile. Appellant called Devine, who agreed to supply the needed LSD. Appellant telephoned Ayala back, but by this time Ayala had talked to Anderson, who had instructed him to insist on at least a thousand "hits." Appellant called Devine once again, who was "hesitant," but agreed to the greater quantity. Appellant and Ayala then arranged a meeting for June 1. Ayala opined that appellant had not seemed "reluctant" to set up the deal. When appellant sold the LSD to Anderson on June 1, he was arrested.

The trial court allowed the State to adduce evidence, over objection, of at least two other transactions in which appellant sold smaller quantities of LSD to Anderson at Ayala's behest on unspecified dates between February and early- to mid-March of 1990. The State devoted a substantial portion of its case in chief to proving up these earlier sales, and in none did Ayala subject appellant to any undue persuasion. During his final summation at the guilt phase of trial the prosecutor argued:

"What about the defendant's opportunity to--what's the slogan? Just say no. Did he ever just say no even one time? No, he didn't. Not even one time. Not in the first transaction where he gave approximately ten hits of LSD, sold them to officer Anderson, not in the second transaction for maybe two hundred hits of LSD, not in the third [June 1] transaction where he delivered one thousand hits of LSD did he ever say no, did he ever say: Look, Ayala, you're bugging me, leave me alone. He didn't."

Appellant did not object to this argument.

In his only point of error on appeal appellant contended that admission of the extraneous transactions was error because the State failed to establish that "the evidence was relevant for purposes other than character conformity." England v. State, supra, at 545. ² The court of appeals reversed, holding that, because Penal Code § 8.06 embodies an objective test for entrapment, appellant's predisposition to commit the offense is not at issue, and therefore the trial court did indeed err to admit evidence of the extraneous transactions. For this proposition, the court of appeals relied upon our opinion on original submission in Bush v. State, supra. ³ Justice Wilson dissented. He argued that, while evidence of extraneous transactions were irrelevant on a theory that it shows predisposition and therefore rebuts entrapment, it may be admissible for other purposes. Here, because the extraneous transactions occurred between appellant and Anderson prior to the offense on trial, they were admissible to inform the question "whether [Ayala's] acts did, in fact, induce appellant to commit the crime as charged." England, supra, at 546 (Wilson, J., dissenting). Reliance upon Bush is misplaced, Justice Wilson continued, because language relied upon by the majority was rendered dicta by the Court's disposition of the cause on rehearing. ⁴ We might add that the decision in Bush preceded the effective date of the Texas Rules of Criminal Evidence.

The State makes much the same argument as Justice Wilson in its petition for discretionary review. Bush notwithstanding, we will treat the issue raised in this cause as a question of first impression, viz: Were the extraneous transactions between appellant and Anderson in this cause admissible as relevant to rebut some aspect of appellant's entrapment defense? The State echoes Justice Wilson's contention that they were relevant to show appellant was not "in fact" induced to commit the offense. The State further argues they were admissible to place the allegedly persuasive police conduct in context--a kind of res gestae notion. We turn first to a general discussion of the entrapment doctrine, after which we will address the State's contentions seriatim.

II.

A. Entrapment

The entrapment doctrine is a uniquely American phenomenon, unknown to the common law. For all practical purposes, it had its genesis in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). There the United States Supreme Court held as a matter of statutory construction that a penal provision could not be read to authorize prosecution for an offense that was "the product of the creative activity of" law enforcement itself. Id., at 451, 53 S.Ct. at 216, 77 L.Ed. at 422. As a corollary of this holding the Court observed that the prosecution could escape the harsh remedy of acquittal if it could show that the accused had been predisposed to commit the offense, such that the conduct of law enforcement could not be said to have implanted the criminal impulse in the mind of the accused. Id. In a concurring opinion, Justice Roberts grounded the doctrine not on principles of statutory construction, but upon what he perceived to be the inherent authority of a court to preserve "the purity of its own temple" by denying a forum to prosecute the product of police misconduct. Id., at 457, 53 S.Ct. at 218, 77 L.Ed. at 425. He opined:

"The applicable principle is that courts must be closed to the trial of a crime instigated by the government's own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has...