Owens v. State, 37280
| Decision Date | 25 November 1964 |
| Docket Number | No. 37280,37280 |
| Citation | 385 S.W.2d 246 |
| Parties | Jesse L. OWENS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Chappell & McFall, by John R. McFall, Lubbock, for appellant.
Fred E. West, County Atty., Wm. Quinn Brackett, Asst. County Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is procuring; the punishment, 3 months in jail and a fine of $200.
We find it necessary to set aside the conviction because the appellant was deprived of a fair and impartial trial by the overruling of appellant's exception to the court's charge. The error was properly preserved but was not raised in the brief or in oral argument.
The evidence shows that Billy Gabriel, the male person named in the information, went to the motel room described in the information, where he met the named prostitute and paid her $10 for an act of intercourse.
Gabriel was in fact a traffic officer of the Lubbock Police Department who was working under the directions of Sergeant Bill Bessent of the detective division. Officer Bessent came to the room and arrested the prostitute after she had prepared herself for the act of intercourse.
The state relied upon Officer Gabriel's testimony to prove the allegation of the information that the appellant procured the prostitute charged in the information.
Appellant's exceptions to the charge complain of the failure of the court to instruct the jury with reference to accomplice witnesses and the law of entrapment, and to submit the issue of whether or not Officer Gabriel was an accomplice.
Upon examination by the District Attorney, Gabriel testified that he went to the motel to see if a crime was being committed, not to trick someone.
On cross-examination he testified:
There was no testimony showing or tending to show that the officers had information that the appellant was engaged in procuring or had previously procured.
The issue of entrapment of a procurer was raised by the testimony quoted and the trial court erred in failing to charge the jury on the law of entrapment and in failing to submit to the jury the question of whether Officer Gabriel was an accomplice witness whose testimony required corroboration. See Art. 718, Vernon's Ann.C.C.P.; Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452.
The omission in the charge was error calculated to injure the rights of the appellant.
The judgment is reversed and the cause remanded.
Had these questions been propounded to Sergeant Bessent, I might agree that the defense of entrapment was raised. I do not agree that the issue of Gabriel being an accomplice witness is in this case. When carefully examined, this...
To continue reading
Request your trial
-
Hernandez v. State
...Ross , 487 S.W.2d at 745 ); see also Mendoza v. State , 577 S.W.2d 240, 241 (Tex. Crim. App. [Panel Op.] 1979) ; Owens v. State , 385 S.W.2d 246, 247 (Tex. Crim. App. 1964) ; Blake v. State , 379 S.W.2d 899, 900 (Tex. Crim. App. 1964) ; compare Fundamental Error , Black's Law Dictionary (11......
-
Carr v. State
...was entitled to a charge under the facts on entrapment, not that he was entitled to a charge on accomplice testimony. Owens v. State, Tex.Cr.App., 385 S.W.2d 246, is relied upon by the appellant. Owens was convicted for procuring and officers testified that before he went out there he had m......
-
McKelva v. State
...mind of the accused or in the officer's mind. Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762; Sutton v. State, supra; Owens v. State, Tex.Cr.App., 385 S.W.2d 246. Where, however, the evidence does not raise such an issue it is not error to refuse a charge on entrapment. Ivy v. State, 16......