Haywood v. State, 45166

• Decision Date: 12 July 1972
• Docket Number: No. 45166,45166
• Parties: J. D. HAYWOOD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 855

482 S.W.2d 855

J. D. HAYWOOD, Appellant, v. The STATE of Texas, Appellee.

No. 45166.

Court of Criminal Appeals of Texas.

July 12, 1972.

San A. Westergren, Jr., Corpus Christi, for appellant.

Wm. B. Mobley, Jr., Dist. Atty., Thomas D. McDowell, Asst. Dist. Atty., Corpus Christi, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of unlawful sale of a narcotic drug, to-wit: heroin. Punishment was assessed by the jury at 75 years.

Initially, appellant complains of the court's failure to charge the jury on the defense of entrapment. A timely special requested charge was presented.

In 16 Tex.Jur.2d, Criminal Law, Sec. 102, Entrapment, at page 234, it is written:

'Where one is induced to do an act and the inducement prevents the act from being criminal, the fact of inducement constitutes a defense. However, the mere fact that one person affords another an opportunity to commit a crime, with a view to prosecuting the other person, is no defense.'

In Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452, this court stated:

'It is the general rule that where the criminal intent originates in the mind of an accused, the fact that the officers furnish the opportunity for or aid the accused in the commission of a crime constitutes no defense to such a prosecution. However, if the criminal design originates in the mind of the officer, and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, such is entrapment and, in law, may constitute a defense.'

In McKelva v. State, Tex.Cr.App., 453 S.W.2d 298, this court held that:

'Unless an accused has established as a matter of law that he was entrapped, the factual issue is a question for the jury when the evidence raises an issue as to whether the intent to commit the crime originated in the mind of the accused or in the officer's mind. (Citations omitted) Where, however, the evidence does not raise such an issue it is not error to refuse a charge on entrapment. (Citations omitted.)'

In the case at bar the evidence shows that two deputy sheriffs with the Nueces County Sheriff's Department entered the Blue Note Lounge in Corpus Christi and purchased a 'paper' of heroin from the appellant. One of the officers stated that he was 'dressed like a merchant seaman with a knit stocking cap, a black turtleneck sweater, bell bottom blue denim pants and boots,' and that his partner 'had on slacks, a long sleeved yellow shirt, sport coat, no tie, and shoulder length hair.' After they entered the lounge they ordered beer from the appellant, who was apparently the manager of the premises. One of the officers testified that after he was served the beer the appellant 'asked if I was looking for a lady. I said yes, and he said, 'Well, she ain't here, but I got the stuff.' I said, 'All right,' and he went over to the cigarette machine, pushed it back, shook it two or three times, and four or five packages fell out. He picked them up, however, then we went to the bar. He asked if I had the money. I said, 'Yes'. I took the matchbox out with a ten dollar bill in it, and handed it to him. He looked at it and gave me two packages of heroin. I said, 'No, I just have money for one.' I took one, he had the money, and we left.' The officer was asked: 'As between you and the defendant, J. D. Haywood, who initiated this sale? A. The defendant.'

On cross-examination the officer was asked:

'Q. You all didn't make any statements at all you needed some drugs, would like to buy some drugs there?

'A. No, sir.

'Q. That is a fact?

'A. That is a fact.'

We conclude that the trial court did not err in refusing to charge the jury on the defense of entrapment. While the officers furnished the opportunity for the appellant to participate in the commission of the offense, the evidence shows that the criminal design originated in the mind of the appellant. See Shott v. State, Tex.Cr.App., 475 S.W.2d 791, and cases cited therein.

Next, appellant complains of improper jury argument, contending that the state's attorney 'committed reversible error by commenting to the jury on the fact that the appellant did not testify on his own behalf on the issue of guilt or innocence.'

The complained of argument is as follows:

'The only evidence you heard, and if there was anything to the contrary, if there was anything that would dispute--

'MR. WESTERGREN: I object to his reference, referring to the defendant not testifying, Your Honor, which is an improper argument.

'THE COURT: Sustained.

'It is entirely uncontradicted evidence. If there had been any witnesses on behalf of the defendant--

'MR. WESTERGREN: Again I object, Your Honor, to his referring to the defendant not testifying.

'THE COURT: Sustained.

'MR. WESTERGREN: I request the Court to instruct the jury not to consider that portion of the State's argument.

'THE COURT: The jury is so instructed.'

In the recent case of Hawk v. State, Tex.Cr.App., 482 S.W.2d 183 (1972) this court reversed the conviction where the prosecutor argued: '. . . There was silence out there that night of that arrest because nobody denied . . ..' However, in Hawk, the trial court overruled the objection to the argument. In the case at bar, the court sustained the objection and instucted the jury to disregard such argument. ¹ No motion for mistrial was made. Appellant received all the relief he requested. We conclude that, under the facts of this case, the error in the argument, if any, was cured by the court's instruction. ² See Alvarez v. State, Tex.Cr.App., 478 S.W.2d 450; Ellis v. State, Tex.Cr.App., 468 S.W.2d 406.

Appellant's contention that 'there was an unexplained break in the chain of custody of certain evidence' is not supported by the record. Instead, the record reflects that: heroin was purchased from appellant by two deputy sheriffs; preliminary examination of the substance purchased by these officers revealed that it was heroin; one of the officers marked...