Langford v. State
| Decision Date | 27 September 1978 |
| Docket Number | No. 3,No. 56977,56977,3 |
| Citation | 571 S.W.2d 326 |
| Court | Texas Court of Criminal Appeals |
| Parties | Michael Wayne LANGFORD, Appellant, v. The STATE of Texas, Appellee |
M. Bruce Fort, Texas City, for appellant.
James F. Hury, Jr., Dist. Atty., Michael P. Heiskell, Asst. Dist. Atty., Galveston, for the State.
Before ROBERTS, PHILLIPS and VOLLERS, JJ.
This is an appeal from an order revoking probation. On November 24, 1975, the appellant was convicted of the offense of burglary of a building upon his plea of guilty. V.T.C.A., Penal Code, § 30.02(a)(3). Punishment was assessed at five years, probated.
On May 10, 1976, the State filed its motion to revoke probation alleging that appellant:
". . . . on or about the 19th day of January, 1976, in Brazoria County, Texas, did then and there intentionally and knowingly without the effective consent of Eddie Forbes, enter a building owned by the said Eddie Forbes and did then and there commit theft, to-wit: did then and there unlawfully appropriate property from Eddie Forbes, the owner thereof without the effective consent of the said Eddie Forbes, and with intent to deprive said owner of said property."
On February 25, 1977, a hearing was conducted on the State's motion to revoke, and the trial court revoked appellant's probation. Appellant alleges in his one ground of error that the trial court abused its discretion in revoking probation when the evidence established that the appellant was induced to commit the crime by a law enforcement officer.
The evidence adduced at the revocation hearing reveals that on January 19, 1976, between 9:00 and 9:30 p. m., a drug store was burglarized in Angleton. Officer Larry Hatthorn testified that he was dispatched to the Mediciman drug store in response to a burglar alarm. Upon his arrival, a vehicle left the drug store parking lot. Officer Hatthorn stopped the vehicle and placed two suspects, later identified as Debbie Kelsey and Larry Graugnard, under arrest. After investigation, a warrant was issued for the arrest of the appellant and Joseph Kelsey. After the appellant was arrested, Officer Hatthorn transferred the appellant from the Texas City Police Department to Angleton. Hatthorn then stated he took appellant before a magistrate who read appellant his rights. Later, appellant was taken to Hatthorn's office and, after again being advised of his rights, gave a confession to the burglary. At that time, appellant did not make reference to an Officer Fleming or request to call any police officer. On cross-examination, Hatthorn admitted that another officer could have taken appellant to the magistrate and his previous testimony on that point could be in error.
Detective Frank Fleming of the Texas City Police Department testified for the defense that appellant had worked for him in an undercover capacity. After appellant had been convicted of the burglary charge, and prior to the court's grant of probation, the appellant had been approached by and later agreed to work with Officer Fleming. Fleming told appellant that he wanted appellant to get close to several people suspected in a series of burglaries, including Charlie Delgado, Joseph Kelsey, and Larry Graugnard. Fleming had instructed appellant to work with these people but he wanted to be contacted about the time and place of the burglaries before they occurred. As a result of this arrangement, appellant provided Fleming with information on several occasions, not only in Galveston County.
When Fleming executed the arrest warrant for appellant in January of 1976, the appellant had told Fleming that he had been unable to reach a phone prior to the burglary. Fleming stated that it was highly possible that a person acting in an undercover capacity could be in such a situation. In commenting on the importance of this telephone call, Fleming testified:
"Q. And the big foul-up on this thing was that there was no phone call to you?
A. Yes, sir.
Q. Had there been a phone call to you, then he wouldn't be in trouble today?
A. No, sir, he sure wouldn't.
Q. As far as you know, Mr. Langford could have been a person who was trying to do what you told him to do and just got in a situation that he couldn't get out of?
A. Would you repeat that question?
Q. Well, let me rephrase it and you answer the question for me: If he had got in touch with you by phone, then there would have been no problems afterwards and you could have bailed him out?
A. No, sir.
Q. Sir?
A. There wouldn't have been any problems, sir."
On cross-examination, the State sought to show that appellant may have taken advantage of the relationship in order to commit a crime.
Appellant testified in his own behalf that he had been asked by Fleming to work undercover in order to gain information on Charlie Delgado, Joseph Kelsey, and others. Appellant was instructed to find out when, where, and what time the others would commit a burglary and call Fleming to give him that information. Appellant was then to accompany the others to the place to be burglarized. On January 19, the day of the present burglary, appellant called Officer Fleming who instructed appellant to obtain information on a burglary which had occurred the previous Sunday. In response to this request, appellant went to the home of Joseph Kelsey, where they were later joined by Charlie Delgado. Kelsey and Delgado were suspicious that appellant was working with the police. Upon their suggestion, appellant took a narcotic drug in order to prove he had no connection with the authorities. They next decided to burglarize the drug store and appellant had no opportunity to contact Officer Fleming prior to the actual burglary. He did contact Fleming January 21, after having made his way back to Texas City.
Appellant now contends that the evidence showed entrapment by the State as a matter of law and, on that basis, the revocation order cannot stand.
There are two general tests for entrapment recognized throughout the United States: one "subjective" and the other "objective." Under the generally accepted "subjective" test, the Court will make two inquiries: first, whether there was inducement on the part of the State and, second, whether the defendant showed any predisposition to commit the offense. Under the "objective" test, which has been adopted by a small but growing minority of states, 1 the Court considers only the nature of the police activity involved without regard to the criminal tendencies of the defendant.
In this State, the defense of entrapment was first recognized in 1956 in the case of Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762. In Cooper, this Court adopted what is now known as the "subjective" test and stated the rule as follows:
(citations omitted)
This subjective test has been consistently followed up until the enactment of our present statute, V.T.C.A., Penal Code, § 8.06. See Redman v. State, Tex.Cr.App., 533 S.W.2d 29; Poe v. State, Tex.Cr.App., 513 S.W.2d 545; Kilburn v. State, Tex.Cr.App., 490 S.W.2d 551; Caudillo v. State, Tex.Cr.App., 462 S.W.2d 576; Gomez v. State, Tex.Cr.App., 461 S.W.2d 422; McKelva v. State, Tex.Cr.App., 453 S.W.2d 298; Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452.
Our present statute has now codified the defense of entrapment under V.T.C.A., Penal Code, § 8.06, which statute provides:
This section was derived from the New York Statute, McKinney's Penal Code, § 40.05. 2 As construed by the New York courts, that statute follows the "subjective" test for entrapment. As noted in People v. Isaacson, 56 A.D.2d 220, 392 N.Y.S.2d 157 (1977):
3
When our statute is compared to the New York provision, it is readily apparent that the drafters of our present penal code intentionally omitted the provision that "the offense would be committed by a person not otherwise disposed to commit it." Since this provision is the one upon which the "subjective" test is founded, it can only be concluded that the legislative intent was to adopt the "objective" test for entrapment. 4 This same conclusion is reached in the practice commentary to Section 8.06:
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Ex parte Williams
...in which a majority of this Court disagreed with the original panel opinion that was filed in that cause, see Langford v. State, 571 S.W.2d 326 (Tex.Cr.App.1978), but could not at that time do anything about the panel opinion because the term of this Court had expired and the judgment had b......
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Soto v. State
...accepted the Rangel test because it emphasized "the degree of police involvement," and the precedential worth of Langford v. State, 571 S.W.2d 326 (Tex.Cr.App.1978) was not high at the time. See Langford v. State, 578 S.W.2d 737 (Tex.Cr.App.1979). However, I did urge that a factfinder shoul......
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England v. State
...that § 8.06 promulgated an objective test for entrapment derives from the panel opinion on original submission in Langford v. State, 571 S.W.2d 326 (Tex.Cr.App.1978). 7 In that opinion, and in every other opinion construing § since, the Court has failed to take note of the change in languag......
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Richardson v. State
...not even come close to raising the defense of entrapment. See also Lopez v. State, 574 S.W.2d 563 (1978). Compare, however, Langford v. State, 571 S.W.2d 326 (1978). We observe from (a) colloquy between counsel and the trial court that appellant's counsel was, at that time, attempting to ha......