Johnson v. State

• Decision Date: 16 March 1983
• Docket Number: No. 63887,63887
• Parties: Gerald JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 784

650 S.W.2d 784

Gerald JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 63887.

Court of Criminal Appeals of Texas En Banc.

March 16, 1983.

Rehearing Denied May 11, 1983.

George H. Tyson, Jr., Michael Ramsey, Houston, for appellant.

Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an appeal from a conviction for criminal solicitation, V.T.C.A., Penal Code Sec. 15.03. The jury assessed punishment at 15 years.

Appellant states in his first and second grounds of error that the trial court erred in overruling his motion for an instructed verdict and his request for an instruction on V.T.C.A., Penal Code Sec. 15.05.

Appellant was convicted under the second paragraph of the indictment, which states in relevant part:

"with intent that a capital felony, to-wit: capital murder, be committed, the said Gerald Johnson requested and attempted to induce Roger Bryant to employ another to intentionally and knowingly cause the death of an individual, namely, John R. Lee, for remuneration and the promise of remuneration, ..."

Sec. 15.03, supra, states in part:

"A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission."

Appellant urges that the indictment does not state an offense since the language of the indictment that charges appellant with a request or attempt to induce another to employ another is a solicitation of a solicitation and specifically prohibited by Sec. 15.05, supra, which provides:

"Attempt or conspiracy to commit, or solicitation of, a preparatory offense defined in this chapter is not an offense."

The "request and attempt" allegations of the indictment constitute solicitation, but "to employ" does not. "To employ" goes beyond mere solicitation and is a completed act. Therefore, the solicited employing person would become a party to the commission of capital murder under V.T.C.A., Penal Code Sec. 19.03(a)(3). As a result, the act allegedly solicited, that "Gerald Johnson requested and attempted to induce Roger Bryant to employ another to intentionally and knowingly cause the death of an individual" would make Roger Bryant a party to the commission of the felony solicited under Sec. 15.03, supra. (Emphasis added.)

The Practice Commentary after Section 15.03 summarizes the problem adequately:

"... criminal solicitation applies to a narrow area of conduct very close to the beginning of a criminal enterprise and may be thought of as an 'attempted' conspiracy.

"The nature and scope of Section 15.03 may be illustrated by a case in which A solicits B to kill C. ... If, however, B refuses to undertake the homicidal project, the conduct of A was not criminal under prior law, but A is guilty of criminal solicitation under Section 15.03.

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"... The last phrase of subsection (a), 'or make the other a party to its commission,' ensures that a person who requests another to engage in complicitous conduct rather than perpetrate the offense, can be convicted of criminal solicitation."

The trial court's refusal of a requested instruction under Sec. 15.05, supra, was proper. Appellant's grounds of error one and two are overruled.

Appellant's third, fourth and fifth grounds of error assert that it was error to allow prejudicial evidence of conversations that constituted separate offenses occurring on August 18 and 19, 1976, over 2 months after June 17, 1976, the date alleged in the indictment. Further, appellant urges that without the evidence of the conversations on August 18 and 19 there would be insufficient evidence to prove appellant's guilt of criminal solicitation on June 17, 1976, as charged in the indictment.

"Evidence of extraneous offenses committed by the accused has been held admissible: (1) to show the context in which the criminal act occurred--what has been termed the 'res gestae'--under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act, so that they may realistically evaluate the evidence; (2) to circumstantially prove identity where the state lacks direct evidence on this issue; (3) to prove scienter, where intent or guilty knowledge is an essential element of the state's case and cannot be inferred from the act itself; (4) to prove malice or state of mind, when malice is an essential element of the state's case and cannot be inferred from the criminal act; (5) to show the accused's motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part; (6) to refute a defensive theory raised by the accused." Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972) and cases cited therein; McCann v. State, 606 S.W.2d 897 (Tex.Cr.App.1980).

These exceptions are not mutually exclusive. Numbers one and five apply to the present case best. The record reflects that the solicitation negotiations by the appellant for the murder of Lee continued from mid June 1976 through August 19, 1976. The negotiations were part of a continuing plan or scheme that reflects appellant's intent and the context of the criminal solicitation. The date alleged in the indictment of June 17, 1976, is a reflection of the first date appellant solicited Bryant. ¹ The subsequent negotiations, also offenses, reflect the continuing course and scheme of appellant starting from the initial solicitation on June 17. The trial court did not err by overruling appellant's objection that the conversations occurring in August should be excluded as extraneous offenses. The evidence presented at trial of the series of conversations is sufficient to support appellant's conviction of criminal solicitation as charged in the indictment.

In appellant's sixth ground of error he asserts that it was error for the trial judge not to respond to his objection that the court's charge should include instructions on circumstantial evidence. Such a charge is no longer required under Texas law. Hankins v. State, 650 S.W.2d 784 (Tex.Cr.App.1983). The ground of error is overruled.

Appellant asserts in his seventh and eighth grounds of error that the trial court erred in overruling his motion for an instruction on the defense of entrapment raised by the evidence.

V.T.C.A., Penal Code Sec. 8.06, states:

"(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

"(b) In this section 'law enforcement agent' includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents." (Emphasis added.)

Sec. 8.06 adopts the "objective" test for entrapment, and once the court determines there was an inducement, the only consideration is of the nature of the police activity involved, without reference to the predisposition of the particular defendant. Langford v. State, 571 S.W.2d 326 (Tex.Cr.App.1978) (on rehearing 578 S.W.2d 737); Norman v. State, 588 S.W.2d 340 (Tex.Cr.App.1979); Ranson v. State, 630 S.W.2d 904 (Tex.App.1982).

Appellant's assertion that Bryant went to appellant's home with the intent to draw appellant into an act which would amount to criminal solicitation is not founded in the record. The record reveals that Bryant acted voluntarily in cooperation with law enforcement officers. He was instructed by the officers that in order to "make the case" and corroborate the already solicited murder, they needed the appellant to mention to Bryant, while he was wired with a hidden microphone, the intended victim's name, and give Bryant an amount of money. The records show that the appellant stated that he had already obtained the money for Lee's murder.

The entrapment defense is available if the officer specifically instructed his agent or informant to use an improper procedure to "make a case" against a particular defendant. Rangel v. State, 585 S.W.2d 695, 699 (Tex.Cr.App.1979).

The evidence does not reveal and appellant has failed to point out any specific improper procedure law officers used to "make a case" against the appellant. The record shows that the appellant actively pursued the arrangements for Lee's murder without inducement from Bryant. The record indicates further that appellant voluntarily made references to the intended victim and offered money for his murder. As a result, only an opportunity was afforded to the appellant to commit the criminal solicitation. Maddox v. State, 635 S.W.2d 456 (Tex.App.1982). The evidence failed to show an inducement. The defense of entrapment was not raised. Accordingly, the trial court properly overruled appellant's request for an instruction on the defense of entrapment.

Appellant asserts in his ninth ground of error that the court's charge was fundamentally defective since the jury could find appellant either intentionally or knowingly committed criminal solicitation. This instruction, it is argued, would allow a finding of guilt upon a lesser degree of culpability than that authorized by the statute.

V.T.C.A., Penal Code Sec. 15.03(a) states in part:

"A person commits an offense if, with intent that a capital felony or felony ..." (Emphasis added.)

The practice commentary to Sec. 15.03, supra, states in part:

"... The acts prohibited by the subsection (9)...