Hubbard v. State
| Decision Date | 31 March 1989 |
| Docket Number | 05-82-00718-CR and 05-82-00719-CR,Nos. 05-82-00467-C,s. 05-82-00467-C |
| Citation | 770 S.W.2d 31 |
| Parties | Bobby Lee HUBBARD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Bobby Lee Hubbard, pro se.
Donald G. Davis, Asst. Dist. Atty., John Vance, Dist. Atty., Dallas, for appellee.
Before STEWART, ROWE and BAKER, JJ.
ON REMAND FROM THE COURT OF CRIMINAL APPEALS
We consider this case on remand from the Texas Court of Criminal Appeals. Appellant Bobby Lee Hubbard appeals his conviction in one case of bribery and two cases of delivery of a controlled substance. The jury assessed punishment of eighteen years imprisonment and a $10,000.00 fine for the bribery charge and life imprisonment and a $10,000.00 fine for each of the delivery offenses.
Appellant's appointed counsel appealed his convictions to this court. During the course of that appeal, appellant became dissatisfied with his appointed counsel and moved to dismiss his appointed counsel and proceed pro se. Concluding that appellant was not entitled to hybrid representation, we overruled appellant's motion, considered the points of error raised by his appointed counsel, and affirmed his convictions in all three cases. Hubbard v. State, 668 S.W.2d 419 (Tex.App.--Dallas 1984), rev'd, 739 S.W.2d 341 (Tex.Crim.App.1987); Hubbard v. State, No. 05-82-00718-CR & No. 05-82-00467-CR (Tex.App.--Dallas Feb. 1, 1984) (not reported), rev'd, 739 S.W.2d 341 (Tex.Crim.App.1987). The Court of Criminal Appeals granted appellant's pro se petition for discretionary review. That Court concluded that, if a trial court hearing revealed that appellant's choice to proceed pro se was knowingly and intelligently made, appellant should be allowed to proceed pro se on appeal and remanded the appeal to this Court. Appellant's choice to proceed pro se was found to be knowingly made, and appellant filed his pro se brief with this Court.
Appellant asserts ten points of error in which he contends, in essence, that: (1) the evidence is insufficient to support his conviction on the bribery charge because the evidence shows entrapment as a matter of law; (2) the trial court committed fundamental error in failing to include an instruction on the defense of entrapment with regard to the offenses of delivery of a controlled substance; (3) outrageous conduct on the part of the police precludes appellant's conviction for delivery of a controlled substance; (4) appellant was rendered ineffective assistance of counsel at trial; (5) the prosecutor's statements during jury argument were so inflammatory and prejudicial as to deny appellant a fair trial; and (6) he has been denied a complete appellate record. We disagree with appellant's contentions and affirm his convictions in all three cases.
Appellant was a heroin distributor in South Dallas, and the police were arresting his heroin dealers. Appellant telephoned Investigator Jerry Wayne Foster of the Dallas Police Department and arranged to meet him in the Bryan Tower cafeteria on December 15, 1981. Foster informed other officers of this meeting and carried a small concealed tape recorder to the meeting. At the Bryan Tower Cafeteria, appellant and Foster discussed the possibility of appellant's paying Foster $2,000.00 per week. In return, Foster was to "get some heat off of [appellant's] back." Appellant and Foster reached no agreement at that meeting.
Foster met appellant and his brother at Fair Park later that day. Foster wore a concealed microphone, and Dallas Police officers recorded their meeting on audio tape. At the meeting, Foster pretended to agree to warn appellant of impending police actions which might result in the arrest of his dealers in return for $2,000.00 per week for the first two weeks and $2,500.00 per week after that. At the end of the meeting, appellant gave Foster $500.00 with a note stating that Foster would receive an additional $1,500.00 the next Tuesday, December 22, 1981. Foster subsequently met appellant at Fair Park on December 22 and December 29, 1981, and on January 5, 1982. At the meeting on December 22, appellant gave Foster $1,600.00. Foster received $2,500.00 at the two subsequent meetings. Dallas police officers recorded these meetings on both audio and video tape.
During the course of the Fair Park meetings, Foster and his supervisors decided to try to get appellant to deliver drugs instead of money to Foster. At the Fair Park meetings, Foster and appellant discussed the possibility of appellant's providing cocaine and heroin to Foster, and appellant agreed. At two meetings at appellant's apartment, Foster and another undercover officer posing as Foster's girlfriend received small quantities of cocaine and sixty balloons of heroin. 1 These meetings were audio taped.
On the basis of these events, appellant was indicted in three cases for bribery and in two cases for delivery of heroin. The five cases were tried concurrently before a jury upon appellant's pleas of not guilty. The jury found appellant guilty of the two delivery offenses and of one of the bribery offenses, committed on December 15, 1982. He was acquitted in the other two bribery cases.
In his second point of error, appellant contends that the evidence is insufficient to support his conviction for bribery. In support of this contention, appellant points out that his testimony conflicts with Foster's testimony regarding the Bryan Tower meeting. Appellant characterizes the Bryan Tower meeting as one in which he did not offer to pay Foster $2,000.00 per week until Foster had made it plain to appellant that he wanted money. Appellant contends that the tape recording of the conversation supports his testimony regarding the Bryan Tower meeting. Appellant further contends that, because Foster rejected his offer of $2,000.00 at the Bryan Tower meeting, no offense occurred until he and Foster struck an agreement later at the Fair Park meeting. At that meeting, appellant asserts, Foster was the first to mention money, soliciting his own deal for $2,500.00. On the basis of these contentions, appellant argues that Foster solicited a bribe from appellant. Appellant urges that Foster's solicitation represents entrapment precluding appellant's conviction for bribery. 2
At trial, Foster testified that appellant telephoned him on December 14, 1981, and requested to meet him. Foster testified that he was surprised to receive appellant's call and that appellant did not say what he wanted to talk about. Appellant called him again the next day, and they agreed to the Bryan Tower meeting. According to Foster, he did not know what appellant wanted when he agreed to the meeting. At Bryan Tower, after some initial discussion, appellant complained that the police were arresting his dealers and setting high bonds on them. Appellant had to get the dealers out of jail before they started talking, and arranging the bonds was breaking him financially. Appellant then said that there was enough money out there for everyone. At this point, Foster testified, he realized what appellant wanted. According to Foster, he played along with appellant, and eventually appellant said "How about two [thousand dollars] a week?" Foster asked if anyone else knew of their meeting. Upon being told that appellant's brother knew of the meeting, Foster refused to agree to a deal at that meeting. He told appellant that he needed to speak to appellant's brother personally.
Insofar as is relevant to appellant's argument, appellant's testimony as to the Bryan Tower meeting differed from Foster's only in certain particulars. Appellant testified that, before he first talked to Foster, he got a message from Foster by way of some "non-snitches" stating, "Tell [Appellant] to get in touch with me; if not, I'm going to bust him or put him in jail." Appellant stated that he called Foster, Foster asked him if he was going to "snitch," and appellant refused. Because of Foster's message and the pressure that Foster was putting on appellant's dealers by arresting them and securing high bonds for their release, appellant concluded that he had no alternative but to become an informer or to bribe Foster. As a result, appellant called Foster and arranged the Bryan Tower meeting to "talk to Officer Foster and see what [Foster] could work out." Appellant testified that, at the Bryan Tower meeting, Foster pressed him to make an offer. In response to Foster's question "How much," appellant held up two fingers, indicating an offer of $2,000.00 per week. Foster refused appellant's offer, stating that he first had to talk to appellant's brother. During the conversation about appellant's brother, Foster stated that he "knew everything" about appellant.
Both appellant and Foster testified that Foster met appellant and his brother later at Fair Park and that, after some discussion, Foster stated that he would agree to the deal for $2,500.00 per week. Appellant proposed $2,000.00 per week for the first two weeks and $2,500.00 per week after that. Foster agreed, and appellant gave him $500.00 with a note reading "Other fifteen Tuesday."
In addition to hearing Foster's and appellant's testimony, the jury also heard audio tapes of the Bryan Tower meeting and the Fair Park meeting. The jury charge in the bribery case included an instruction on the defense of entrapment. The jury was instructed to acquit appellant if they had a reasonable doubt as to the existence of that defense. The jury returned a verdict of guilty.
Appellant relies on O'Brien v. State, 6 Tex.Ct.App. 665 (1879), as authority for his argument that Foster's alleged conduct of soliciting a bribe precludes appellant's conviction. In O'Brien v. State, O'Brien was convicted of offering a bribe to a deputy sheriff in order to secure the release of a prisoner from jail. In reversing the conviction, the court of appeals stated:
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