Liggins v. State

• Decision Date: 28 October 1998
• Docket Number: No. 10-97-247-CR,10-97-247-CR
• Citation: 979 S.W.2d 56
• Parties: Raymond Dale LIGGINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 56

979 S.W.2d 56

Raymond Dale LIGGINS, Appellant, v. The STATE of Texas, Appellee.

No. 10-97-247-CR.

Court of Appeals of Texas,

Waco.

Oct. 28, 1998.

Thomas D. Whitworth, Law Offices of Thomas D. Whitworth, Rita K. Papajohn, Cleburne, for appellant.

Dale S. Hanna, District Attorney, David W. Vernon, Asst. District Attorney, Cleburne, for appellee.

Before Chief Justice DAVIS, Justice CUMMINGS and Justice VANCE.

OPINION

DAVIS, Chief Justice.

A jury convicted Raymond Dale Liggins of delivery of cocaine in the amount of one gram or more but less than four grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (Vernon Supp.1998). The jury found that Liggins had been previously convicted of forgery and sentenced him to twenty years' imprisonment and no fine.

Liggins presents twelve points of error on appeal. His points relate to the jury's implied finding that he was not entrapped; the alleged outrageousness of the undercover officers' conduct in persuading him to sell them cocaine; the court's admission of allegedly "speculative and prejudicial opinion testimony"; the jury's viewing of a videotape during deliberations; the admissibility of certain prior misdemeanor convictions offered in the punishment stage of his trial; and the State's argument concerning those prior misdemeanor convictions. We will affirm the judgment.

FACTUAL BACKGROUND

Liggins' indictment originally alleged three counts of delivery of cocaine on or about April 8, April 9, and April 15, 1996 respectively. The State elected to proceed to trial on only the April 9 allegation. The record reflects that Alan Cartwright, an investigator with the S.T.O.P. Narcotics Task Force, enlisted Liggins' cousin Johnny Shipman as a confidential informant to aid in locating drug dealers and arranging sales to undercover officers. ¹ Cartwright testified that he had targeted a suspected dealer for an undercover purchase on April 8, but the suspect would not deal with him. ² When this deal did not materialize, Shipman directed Cartwright to Liggins' residence.

Cartwright testified that Liggins appeared to be engaged in a drug transaction as they approached. Cartwright told Liggins he wanted to purchase five rocks of crack cocaine. Liggins went and talked with a man sitting on the front porch of his home. He then took Cartwright's money to the man on the porch and obtained the cocaine in return. He delivered the cocaine to Cartwright.

Cartwright returned on April 9 with another undercover officer. He asked Liggins for sixteen rocks on this occasion. Liggins got in Cartwright's truck and directed him to a neighborhood park. Liggins approached a man in the park about the proposed deal. He then returned to the truck for Cartwright's money. He took the money, exchanged it for fifteen rocks, and delivered the cocaine to Cartwright. Cartwright noted the shortage, and Liggins went back to question the man in the park about it. He shortly returned to report that the man had no more rocks to sell. The officers returned Liggins to his home.

Two or three days later, the officers returned to Liggins' home in an attempt to allay any concerns that they were actually law enforcement officials. They brought beer and applications for employment with a purported fencing company in Fort Worth for which they claimed to work. They stayed for a brief social visit and encouraged Liggins to give applications to any of his friends or acquaintances who might be looking for work. They did not seek to purchase any cocaine during this visit.

On April 15 the officers returned for another purchase. According to the officers, Liggins introduced them to a man from whom they could purchase cocaine. According to Liggins, this man just happened to drive by at the time the officers arrived, and the officers dealt directly with him. Liggins rode with the other man, and the parties met at the park. The officers negotiated directly with the other man for the purchase of cocaine. After the transaction was consummated, the seller left. The officers gave Liggins a ride back to his house.

According to Liggins, Shipman told him about Cartwright several weeks before they actually met. Liggins testified that Shipman told him Cartwright would offer him a job with a fencing company. He recalled that on April 8 Shipman approached him and introduced Cartwright to him as the man he had previously told him about who could give him a job. Liggins told the jury that he only arranged the drug transactions because he understood that the officers would give him a good-paying job with their fencing company if he could provide the cocaine they needed. This formed the basis of Liggins' entrapment defense. Shipman's and the officers' versions of these conversations varied significantly from Liggins.' The jury rejected the entrapment defense; found Liggins guilty; and sentenced him as indicated above.

ENTRAPMENT

Liggins' first point asserts that the evidence establishes entrapment as a matter of law. His second and third points respectively challenge the legal and factual sufficiency of the evidence to support the jury's rejection of his entrapment defense.

The State responds that defenses such as entrapment are not subject to a factual sufficiency challenge. However, this Court has already determined that the entrapment defense is subject to a factual sufficiency challenge. See Hernandez v. State, 938 S.W.2d 503, 509-10 & n. 11 (Tex.App.--Waco 1997, pet. ref'd). Other courts have considered factual sufficiency challenges in cases where juries rejected self-defense, which carries the same procedural consequences as entrapment under section 2.03 of the Penal Code. ³ See Juarez v. State, 961 S.W.2d 378, 385 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd); Jones v. State, 951 S.W.2d 522, 526-27 (Tex.App.--Beaumont 1997, pet. ref'd); Ojeda v. State, 945 S.W.2d 197, 200-01 (Tex.App.--San Antonio 1997, no pet.). We will follow these authorities and analyze the factual sufficiency of the evidence to support the verdict.

APPLICABLE LAW

To raise entrapment, an accused must produce evidence that: (1) he was actually induced to commit the offense; and (2) the inducement "was such as to cause an ordinarily lawabiding person of average resistance nevertheless to commit the offense." England v. State, 887 S.W.2d 902, 913-14 (Tex.Crim.App.1994). Once the accused has presented such evidence, the State must disprove the defense beyond a reasonable doubt. Hernandez, 938 S.W.2d at 510; accord Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App.1991).

Matter of Law

Entrapment is generally a question for the jury unless the accused establishes the defense as a matter of law. Melton v. State, 713 S.W.2d 107, 113 (Tex.Crim.App.1986); Redman v. State, 533 S.W.2d 29, 31 (Tex.Crim.App.1976). This is nothing more than a recognition that the accused is entitled to an instructed verdict of acquittal if the State fails to disprove his defense beyond a reasonable doubt. See Riley v. State, 953 S.W.2d 354, 357-59 (Tex.App.--Austin 1997, pet. ref'd) (holding promiscuity defense not established as a matter of law); cf. Harris v. State, 790 S.W.2d 778, 779-80 (Tex.App.--Houston [14th Dist.] 1990, pet. ref'd) (reversing judgment and directing entry of acquittal order where State failed to introduce any evidence to prove an element of offense).

We treat a motion for an instructed verdict as a challenge to the legal sufficiency of the evidence. Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App.1993). Thus, we will consider Liggins' first point concerning his assertion that he established entrapment as a matter of law together with his second point challenging the legal sufficiency of the evidence to support the jury's rejection of his entrapment defense.

Legal Sufficiency

A challenge to the legal sufficiency of the evidence supporting a verdict which has implicitly rejected a defense requires us to view the evidence in the light most favorable to the implicit rejection of the defense. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). We resolve any inconsistencies in the evidence in favor of the verdict. Id. at 423; Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991).

Factual Sufficiency

When presented with a factual insufficiency claim, we discard the prism of the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). We reverse "only if [the implicit rejection of the defense] is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Id.; Hernandez, 938 S.W.2d at 512.

We consider all the evidence in the record related to the contested issue, "not just the evidence which supports the verdict." Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). We review the evidence tending to prove the issue, "and compare[ ] it to the evidence which tends to disprove that [issue]." Id. We give appropriate deference to the jury's decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135; Hernandez, 938 S.W.2d at 512. We do not set aside the "verdict merely because [we] feel that a different result is more reasonable." Clewis, 922 S.W.2d at 135 (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986)).

PERTINENT FACTS

Cartwright testified that Shipman directed him to Liggins' home on April 8 because the initially targeted suspect would not deal with him. Shipman told Cartwright he could probably get some cocaine from Liggins. As they approached, Cartwright observed Liggins apparently selling drugs to another person. He told Liggins he needed five rocks of crack cocaine. Liggins took Cartwright's money, exchanged it with another man sitting on the front porch of his house for the requested cocaine, and delivered the rocks to Cartwright. He asked Cartwright for one of the rocks which he had just delivered. Cartwright explained that this is a typical manner in which "middlemen" collect a "brokerage fee." Cartwright would...