Hernandez v. State

• Decision Date: 25 May 2005
• Docket Number: No. PD-1222-04.,PD-1222-04.
• Citation: 161 S.W.3d 491
• Parties: Alexander HERNANDEZ, Appellant, v. The STATE of Texas.
• Court: Texas Supreme Court

161 S.W.3d 491

Alexander HERNANDEZ, Appellant, v. The STATE of Texas.

No. PD-1222-04.

Court of Criminal Appeals of Texas.

March 2, 2005.

Rehearing Denied May 25, 2005.

COPYRIGHT MATERIAL OMITTED

Kurt Corley, Marble Falls, for Appellant.

Jeffrey L. Van Horn, Asst. Atty., Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the unanimous Court.

Appellant was charged with possession of methamphetamine with intent to deliver it. After a pretrial evidentiary hearing, the trial judge denied appellant's motion to dismiss based on entrapment. Appellant then pled guilty, and was sentenced to five years' probation and a $5,000 fine. He appealed the denial of his entrapment motion to the court of appeals under Rule 25.2(a)(2)(A) of the Texas Rules of Appellate Procedure.

The court of appeals reversed appellant's conviction and ordered the case dismissed because the State "failed to meet its burden to disprove entrapment beyond a reasonable doubt."¹

We granted review to decide whether a trial judge could rationally deny an "entrapment as a matter of law" motion by concluding that the defendant's testimony was not credible.² Or, put conversely, is the defendant necessarily entitled to prevail in his "entrapment as a matter of law" motion if the State does not offer affirmative evidence that directly contradicts a defendant's testimony? We conclude that, under State v. Ross,³ a trial judge is not required to believe a defendant's version of events supporting his entrapment defense, even if it is largely uncontradicted. In this case, a rational trial judge could find against appellant's "entrapment as a matter of law" defense based upon disbelief of some or all of appellant's testimony. We therefore reverse the court of appeals and affirm the trial court's judgment.

I.

At the pretrial hearing on entrapment, appellant, who had recently been released from prison on a prior methamphetamine conviction,⁴ testified that he and his neighbor, Chris, first met Felicia Farr, a confidential informant, at his mother's house. Appellant said that Ms. Farr walked down the street from her trailer a block and a half away and started talking about how she had "been to the pen" four times. She was drinking beer and "shooting bull." A week later she came up to Chris and appellant at his mother's house and offered both of them oral sex. She drank and "carried on" and asked if they could find some drugs for her. She came over to appellant's mother's house a lot and asked appellant if he could score her some drugs "that was her number one deal." Ms. Farr asked "almost every day." She mainly wanted methamphetamine.

Appellant testified that on Valentine's Day she came over and asked appellant to light her gas heater. She was high on something, but appellant went back to her trailer with her. As soon as they reached her trailer, she began fondling appellant and asking him if he wanted to have sex. Appellant said, "No." She wanted to give appellant oral sex, and she was trying to pull appellant's "britches" down. He resisted.

According to appellant, Ms. Farr asked for some money for beer and, after appellant obliged her, she went out to buy it. Appellant went back to fixing her heater. When she returned, she said, "I've got something else," and she pulled out some "dope" and two syringes. She mixed up the methamphetamine with water in a spoon, and they shared it. She again said she wanted to give appellant sex. She took a shower and when she came out, she started "messing" with him, giving him oral sex. Her clothes were off, his clothes were off, and she was performing when somebody "come knocking—storming in the door—knocking and just storming in the door." Appellant testified:

They were out—there was no sign that there were police officers. All it was is she was giving me oral sex. The dope was sitting right there beside the bed. And when she heard the boom, boom, boom, she said, oh, God. Oh, God. She says just stay back here. She goes here, here. Do something with this. And she grabs the dope and tells me to put it up.

I said what? She goes put this in your pocket. When they leave we'll finish what we're doing. And she sits there and tries to shove it in my pocket. And I'm sitting there going why? She said let me put my pants on. Somebody is coming in. They bang on that door. All I remember is they come storming in. They're already almost in the back bedroom by the time—she didn't let them in. She didn't—no more than pulled her britches up and they were inside the door.

When his attorney asked appellant how he ended up with the two methamphetamine packets in his pants' pocket, he testified:

Well, under the circumstances her giving me oral sex and it being her house and her—you know, being right in the middle of that act whenever she heard the door getting beat on real hard and she grabs the dope and says, here, do something with this. And puts it in my pocket—I mean she puts it in my pocket.

She knew what she was doing. I mean she put it in my pocket to make me have it on me. She says wait right here. As soon as I get back behind her—I didn't have my pants on all the way up when she was putting it in my pocket. I'm sitting here trying to pull my pants up at the same time. I wouldn't have let her put it in here. It wasn't my—it wasn't my dope. It was her dope. I should have never even let her attempt it but I—under the circumstances, I wasn't thinking.

Appellant said that he considered himself an ordinary and law-abiding person of average resistance to this type of sexual invitation because:

I had just gotten out of the penitentiary. I had made a promise to myself that I would stay away from them kind of things, and I was attending church. I was riding with my mom to Goldthwaite and back every day to work. And I was doing my darndest to really try to live a good life because I had just gotten contact visits with my—supervised contact visits with my kids.

When his attorney asked appellant to explain all the reasons why he had the methamphetamine in his pocket that day, he said:

It was just poor judgment on my half [sic] because I was under the influence of narcotics and I was in—I was teased by someone offering sexual favors ... By her fondling me and begging me to let her give me head—giving me a blow job and telling me that she wanted someone to be with her....

And that's-it was just my not thinking, being messed up and also wanting her to finish what she told me she would do.

After this testimony, the trial judge agreed with appellant's attorney that "I think you've met your burden."

The State then called Sgt. Simler who testified to a somewhat different scenario. He said that Felicia Fox was indeed a police confidential informant who had a written contract with the Narcotics Enforcement Team ("NET") to purchase illegal narcotics "under supervised buys." She had been working undercover in San Saba for about a month before this event.⁵

On the day of appellant's arrest, Sgt. Simler and Sgt. Byler were at a gas station when they received a call from Ms. Fox. This was not a "scheduled or a documented controlled purchase," so Ms. Fox had not been searched or "wired" before the meeting. She simply called the officers and asked them to come over. Based upon the information she gave them, they drove to her trailer, which was five minutes away. Sgt. Simler knocked on the front door, and Sgt. Byler covered the back door. Ms. Fox opened the door, and, when Sgt. Simler asked where the person was, Ms. Fox said, "[H]e's in the back room." Sgt. Simler went to the back bedroom, but saw no one there. He returned and again asked Ms. Fox where the person was, and she again told him that he was in the back bedroom. When Sgt. Simler returned, he saw appellant walk out of the closet. He was fully dressed, and Ms. Fox was fully dressed. Neither looked out of breath or sweaty; neither had hair in disarray. Sgt. Simler patted down appellant, found two packets of methamphetamine in his pants' pocket, and arrested him without incident.

On rebuttal, the defense called Sgt. Byler who testified that the officers did not target appellant. Neither he nor Sgt. Simler knew if Ms. Fox had been in prison. She was "probably" paid $100 for this "bust" and left San Saba a few days later. Neither the State nor defense had subpoenaed Ms. Fox, and she did not appear to testify.

At the conclusion of the testimony, the defense argued that it had raised the defense of entrapment by offering some evidence, and the State had failed to contradict appellant's testimony with evidence to disprove the defense beyond a reasonable doubt. The State argued that: 1) appellant denied committing the offense; 2) he testified that someone else put the drugs in his pocket; 3) he never testified to any inducement or quid pro quo; 4) the trial court need not, and ought not, believe appellant's testimony; 5) some of appellant's testimony was directly contradicted by the officers; and 6) this is not the type of inducement that "the Court or society should recognize as justifying a ordinary, law-abiding person of average resistance in violating the law." The trial judge denied appellant's entrapment motion without comment, and appellant pleaded guilty to five years' probation in accordance with a pre-arranged plea bargain.

The Third Court of Appeals reversed appellant's conviction and ordered the prosecution dismissed. It concluded that "the State offered no evidence to contradict the assertions that the methamphetamine discovered in this case belonged to a law enforcement agent and that the agent directly placed it in appellant's pants pocket when their sexual encounter was interrupted, as arranged by that agent.... [W]e rest our decision on the fact that the State failed to meet its burden to disprove entrapment beyond a reasonable doubt."⁶

II.

Some types of criminal conduct, such as the illicit drug trade, present difficult issues of...