Kennard v. State

• Decision Date: 30 March 1983
• Docket Number: No. 2-81-343-CR,2-81-343-CR
• Citation: Kennard v. State, 649 S.W.2d 752 (Tex. App. 1983)
• Parties: Arie KENNARD, Jr., Appellant, v. STATE of Texas, State.
• Court: Texas Court of Appeals

Page 752

649 S.W.2d 752

Arie KENNARD, Jr., Appellant, v.STATE of Texas, State.

No. 2-81-343-CR.

Court of Appeals of Texas Fort Worth.

March 30, 1983.

Rehearing Denied April 27, 1983.

Discretionary Review Refused

July 20, 1983.

Allan K. Butcher, J. Don Carter, Fort Worth, for appellant.

Tim Curry, Dist. Atty. and Michael Jergins, Asst. Dist. Atty., Fort Worth, for State.

Before FENDER, C.J., and BURDOCK and HUGHES, JJ.

OPINION

FENDER, Chief Justice.

Appellant, Arie Kennard, Jr., was convicted by a jury of engaging in organized criminal activity as prescribed in V.T.C.A. Penal Code, sec. 71.02, and with being a repeat felony offender.The jury set punishment at ninety-nine years in the Texas Department of Corrections.

We affirm.

Kennard raises twenty-six grounds of error in attacking his conviction and these will be set out as they are addressed in this opinion.As Kennard challenges the sufficiency of the evidence, a short rendition of the facts is in order.

The indictment charged that Kennard, acting with the intent to form a combination, conspired to commit the offense of delivery of a controlled substance, to-wit: heroin.The members of the conspiracy were alleged to be Kennard, Orrin Waits, Andrea Waites, Jeanette Clark, and Leon Thomas Johnson, Jr.The indictment alleged that these five persons agreed to engage in the conduct of actually delivering heroin at the house located at 1515 Avenue D, Fort Worth, Texas.

On December 16, 1980, a Fort Worth Police Department patrol officer reported observing what appeared to be narcotics traffic from the house at 1515 Avenue D, in Fort Worth.That same day narcotics officers placed the house under surveillance.The house was observed to have metal burglar bars over its windows and doors; the doors were further covered by a plastic screen which had a hole cut in it.During a forty-five minute period, officers observed sixteen people approach the house, stand at the door one and one-half to two minutes and leave.These facts led the officers to believe the house was actually a center for drug traffic.

Officer DeLaFlor went to the house on January 10, 1981, for the purpose of making an undercover "buy".DeLaFlor went to the side door where he was met by and purchased narcotics from Orrin Waits.The transaction took place through the hole that had been cut in the plastic door shield.The evidence obtained by this purchase tested out to be cocaine and heroin.That evidence was destroyed before trial.On January 15, 1981, Officer Cooper made an undercover buy from Orrin Waits.The evidence obtained from that transaction tested to be heroin.

On January 20, 1981 several Fort Worth narcotics agents in conjunction with two agents from the Drug Enforcement Agency(Chism and Brown) set up an operation to obtain further evidence of the drug traffic at 1515 Avenue D. Officers Swearingen and Cooper kept the house under surveillance; Officers DeLaFlor, Wyatt and Sergeant Whitfield were stationed away from the house.Agents Chism and Brown, supplied by DeLaFlor with money, went to the house, purchased narcotics and turned them over to DeLaFlor.Pursuant to the plan, Agent Chism went to the house and purchased narcotics from Leon Thomas Johnson, Jr. Chism took the evidence obtained from the purchase to DeLaFlor, who submitted it to the crime lab.That evidence was proved to be heroin.Forty-five minutes after Chism's buy, Agent Brown met with DeLaFlor, was given cash and proceeded to the house where he purchased narcotics from Johnson.The evidence was given to DeLaFlor.The evidence obtained from Brown's buy tested to be heroin.

The police repeated the "buys" on January 21, 1981 and January 22, 1981.The evidence obtained contained controlled substances.

On January 31, 1981, officers saw Kennard conducting a transaction at the house.Evidence was presented that Kennard rented the house from September 4, 1980 until February 6, 1981.The house's water, electric, and telephone service were all billed in Kennard's name.

Sherry Marie Lilly bought narcotics from the people at the house on a daily basis for six months.Lilly bought narcotics from appellant, Leon Thomas Johnson, Jr., Jeanette Clark, Orrin Waits, Andrea Waites and appellant's wife.On one occasion Johnson had sold her three bad pills and when she returned them, Kennard mentioned to her the possibility of going to work for him.

Leon Thomas Johnson, Jr., testified on behalf of the State.Johnson testified he worked for the defendant from August, 1980 until January, 1981.Johnson first saw drugs at the house three days after Kennard moved in, and then saw them everyday afterwards.Johnson remodeled the house by building a hidden compartment under the sink, to hide drugs in, and gun racks hidden in the closet.According to Johnson the house operated on three shifts with Jeanette Clark selling narcotics 7:00 a.m. to 2:00 p.m., Andrea Waites selling from 2:00 to 10:00 p.m. and Orrin Waits selling from 10:00 p.m. to 7:00 a.m. Kennard was at the house on a daily basis, with money.

Johnson testified he sold drugs four or five times, when the others were busy and would ask him to handle the door.Johnson saw as much as $9,000 counted out from the proceeds of one morning shift.Kennard brought in the pills of narcotics and divided them out into containers.Johnson testified he was paid in cash taken from the money paid for narcotics.

Kennard was arrested pursuant to a post-indictment warrant, on March 31, 1981.Officers approached Kennard as he was going down the stairs in an apartment complex, and he was told to go to the top of the stairs and sit down.After he sat down, officers observed him attempting to hide something between the slats of the stairway landing.He was told to hand over what he was hiding and he produced an aspirin box that contained four capsules.One of the capsules contained heroin and the other three contained cocaine.

Kennard raised the defenses of entrapment and mistake of fact at his trial.He claimed that Officer C.W. Goodwin induced him to become a drug dealer in order to infiltrate larger organizations and obtain information from them.In this regard, Kennard testified that he and his wife were arrested by Ft. Worth narcotics officers at a motel in Fort Worth on August 27, 1980--one week after he was released from prison.During the trip to jail, the officers (including Officer Goodwin) and he discussed the possibility of his becoming an informant.Kennard testified that in return for his agreement, he was released from jail, his wife's bond was reduced from $20,000.00 to $5,000.00, and the officers gave back around $1200.00 seized from his wife on arrest.Kennard testified that he told Officer Goodwin that he was buying heroin for resale, when he bought it, from whom he bought it, and how much he paid for it.

Officer Goodwin testified that he had discussed the possibility of Kennard's becoming an informant and that Kennard had kept in contact with him.He also testified that Kennard always provided old information, that he never used Kennard for a controlled undercover buy, and that he never gave Kennard permission to sell or be involved in the sale of narcotics.Officer Thetford, Goodwin's partner, testified that Kennard was specifically told that any involvement with narcotics would have to occur in a situation controlled by the police.

Kennard's first ground of error asserts that the trial court erred in failing to instruct the jury on the law of mistake of fact.The record shows that Kennard both objected to the failure to give an instruction on the defense of mistake of fact raised by the evidence and requested an instruction on mistake of fact in his requested jury charge.

It is well settled that when a defensive theory is raised by the evidence from any source and a charge is properly requested, it must be submitted to the jury.It is then the jury's duty, under proper instructions, to determine whether the evidence is credible and supports the defense.Horne v. State, 607 S.W.2d 556(Tex.Cr.App.1980).

Kennard's objection and requested instruction on the defensive theory of mistake of fact are based on his contention that the evidence raised the issue of his belief that officers of the Fort Worth Police knew and approved of his selling narcotics.

Mistake of fact is defined in V.T.C.A. Penal Code, sec. 8.02:

(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

(b) Although an actor's mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.

It is obvious from the above definition that the mistake of fact defense is based solely on the mistaken belief of the actor.It looks to the conduct of others only to the extent that such conduct contributes to the actor's mistaken belief and does not look at all to the belief or state of mind of any other person.Montgomery v. State, 588 S.W.2d 950(Tex.Cr.App.1979);Lasker v. State, 573 S.W.2d 539(Tex.Cr.App.1978).

The mistaken belief of the actor, however, must be of a kind that negates the kind of culpability required for the commission of the offense.Kennard was charged with:

Then and there intentionally and knowingly, with the intent to establish, maintain, and participate in a combination, and in the profits of a combination, conspire to commit the offense of unlawful delivery of a controlled substance, to-wit: Heroin, with Orrin Waits, Leon Thomas Johnson, Jr., Andrea Brachelle Waites, and Jeanette Clark, said conspirary commencing on or about the 17th day of December, 1980, and continuing until on or about the 31st day of January 1981 and the said Arie Kennard, Jr., Orrin Waits, Leon Thomas Johnson, Jr., Andrea Brachelle...