Ramos v. State
| Decision Date | 23 April 1982 |
| Docket Number | No. 07-81-0021-CR,07-81-0021-CR |
| Citation | 632 S.W.2d 688 |
| Parties | Ernest Paul RAMOS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
White, Self, Davenport & Bass, Ed Self, Plainview, for appellant.
Marvin Marshall, Dist. Atty., Plainview, for appellee.
Before REYNOLDS, C. J., and DODSON and COUNTISS, JJ.
Ernest Ramos, the appellant, was indicted for the offense of delivery of a usable quantity of marihuana of more than one-fourth ounce. The jury convicted the appellant of the charged offense and assessed his punishment at four (4) years confinement in the Texas Department of Corrections. On appeal, the appellant maintains that the trial court erred: (1) in refusing his requested charge on corroboration of accomplice testimony; (2) in overruling his motion to dismiss grounded on entrapment as a matter of law; (3) by overruling his objection to the court charge grounded on the court's failure to submit the objective test of entrapment; (4) by refusing to permit him to invoke the Rule after testimony had begun; and (5) by refusing to permit him "to testify concerning the circumstances of a prior offense admitted into evidence during the guilt phase of the trial." Concluding that the appellant's grounds of error do not present cause for disturbing the judgment, we affirm.
On the occasion in question, Walter C. Eeds and J. W. Cunningham were employed by the Texas Department of Public Safety as narcotic agents working undercover in the Plainview area. On 5 October 1978, at approximately 4:30 p. m., the agents went to the appellant's residence in Plainview. On arriving at the front door of the residence, they were directed to the backyard where the appellant was working on a pickup. Eeds greeted the appellant and introduced him to Cunningham.
The three proceeded to engage in general conversation. Although Eeds did not ask for marihuana, the appellant, having sold some to Eeds on a prior occasion, volunteered that he didn't have any at that time. Eeds asked the appellant if he knew where he could get a pound, and the appellant answered that "he thought he could." Eeds asked the price, and the appellant told him $120.00. The appellant told Eeds that it would be after 5:00 p. m. before he could contact his source. The appellant added that the supply of marihuana in Plainview was almost depleted, but approximately 500 pounds was to arrive the following weekend and that after the weekend he could get whatever quantity Eeds wanted.
The agents left and returned to the appellant's residence at about 6:40 p. m. The appellant told Eeds that it would be 9:30 p. m. before he could get the marihuana. Eeds told the appellant he had business in Amarillo and that he would call him the next day. The appellant gave his telephone number to Eeds, and the agents left. By telephone the morning of 6 October 1978, the appellant told Eeds that he had the pound of marihuana. Eeds and Cunningham went to the appellant's residence and obtained the marihuana from him for $120.00. As the agents were leaving, the appellant told Eeds to call at 12:00 noon about the 500 pounds.
In his first ground of error, the appellant maintains that the trial court erred by refusing his requested charge on corroboration of an accomplice's testimony. The appellant argues that the court should have made the requested charge in relation to Agent Eeds' testimony, because the appellant "testified that the first time he met Walter Eeds, that Eeds and two other men with him smoked a marihuana cigarette in the (appellant's) presence," and that the evidence further shows that Eeds brought about the crime and did more than merely obtain evidence against the appellant.
It is well settled that "an accomplice witness is someone who has participated with another before, during or after the commission of a crime." Carrillo v. State, 591 S.W.2d 876, 882 (Tex.Cr.App.1979). However, "(o)ne is not an accomplice witness who cannot be prosecuted for the offense with which the accused is charged." Id. at 882. Furthermore, an undercover agent is not an accomplice so long as he does not bring about the crime but merely obtains evidence to be used against those engaged in the crime. Lopez v. State, 574 S.W.2d 563, 565 (Tex.Cr.App.1978); Howery v. State, 528 S.W.2d 230 (Tex.Cr.App.1975). In the present case, Agent Eeds could not be prosecuted for the offense with which the appellant was charged. Nor did he bring about the crime charged; he merely obtained the evidence to be used against the appellant. The appellant's first ground of error is overruled.
In his second ground of error, the appellant claims that the trial court erred by overruling his motion to dismiss the case because the evidence showed, as a matter of law, that the appellant was entrapped by law enforcement officers. The court held a pretrial hearing on the appellant's motion. At the pretrial hearing, Agent Eeds was the only witness. The appellant's contention under this ground of error is based on Eeds' testimony which, the appellant contends, shows that the appellant told Eeds that he did not have any more marihuana, that Eeds nevertheless asked him if he could get him a pound, and that he told Eeds that he thought he could. The appellant argues that this testimony establishes that Eeds induced him to get the pound of marihuana and that, as a matter of law, this inducement by the State falls below the proper use of governmental power.
In support of his position, the appellant relies on Section 8.06, Tex.Penal Code Ann. (Vernon 1978), and Norman v. State, 588 S.W.2d 340 (Tex.Cr.App.1979), cert. denied, 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d 261 (1980). In pertinent part, Section 8.06 provides:
(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. (Emphasis added.)
We are persuaded that the evidence relied on by the appellant failed to conclusively establish that, by using persuasion or other means likely to cause the appellant to commit the offense, Agent Eeds induced the appellant to commit the offense charged. After being told that the appellant was out of marihuana, the Agent cannot be said to have induced the appellant to commit the charged offense by merely asking the appellant if he could get a pound of marihuana. Agent Eeds merely provided the appellant the opportunity to commit the charged offense.
By enacting Section 8.06 of the Texas Penal Code, the legislature did not intend to provide a ready-made escape hatch for those individuals who engage in criminal enterprise. The legislature rather established an objective standard to control police conduct which manufactures crime. Under the objective standard, prohibited police conduct usually includes, but is not limited to, matters such as extreme pleas of desperate illness in drug cases, appeals based primarily on sympathy, pity or close personal friendship, offers of inordinate sums of money, and other methods of persuasion which are likely to cause the otherwise unwilling person-rather than the ready, willing and anxious person-to commit an offense. See : 21 Am.Jur.2d, Criminal Law § 206 (1981). The second ground of error is overruled.
In his third ground of error, the appellant maintains that the trial court erred in overruling his objection to the charge on entrapment because the charge fails to submit the objective test of entrapment. The court charged, in part, as follows:
Therefore, even if you believe from the evidence beyond a reasonable doubt that the defendant committed the offense as alleged but you further believe, or you have a reasonable doubt thereof, that he was induced to do so by Walter C. Eeds, who was a law enforcement agent, an agent of the Texas Department of Public Safety, who used persuasion or other means likely to cause persons to commit the offense, to wit: intentionally and knowingly delivering to Walter C. Eeds a usable quantity of marihuana of more than one-fourth ounce, and that the conduct of the said Walter C. Eeds did not merely afford the defendant an opportunity to commit the offense, if any, you will find the defendant not guilty. (Emphasis added.)
This charge follows the statutory language of Article 8.06 of the Penal Code. The appellant made the following objection to the above paragraph:
... we would object because the...
To continue reading
Request your trial
-
Mayfield v. State
...officer in an act that would otherwise be criminal under other circumstances does not make the officer an accomplice. Ramos v. State, 632 S.W.2d 688, 690 (Tex.App.--Amarillo 1982, no pet.); Ochoa v. State, 444 S.W.2d 763, 764 (Tex.Cr.App.1969) (undercover officers who smoked marijuana with ......
-
Flores v. State
...person — to commit an offense. Sebesta v. State, 783 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd) (quoting Ramos v. State, 632 S.W.2d 688, 691 (Tex.App.-Amarillo 1982, no Appellant argues that the uncontested evidence shows that Gonzalez resorted to numerous prohibited ta......
-
Torres v. State
...unwilling person--rather than the ready, willing and anxious person--to commit an offense. Sebesta, 783 S.W.2d at 814 (quoting Ramos v. State, 632 S.W.2d 688, 691 (Tex.App.--Amarillo 1982, no pet.)) (emphasis added). Unlike the undercover officers in Ramos, Dabbs approached Torres on numero......
-
Cohea v. State, 01-92-00087-CR
...undercover officers participate in an act that would be criminal under other circumstances does not make them accomplices. Ramos v. State, 632 S.W.2d 688, 690 (Tex.App.--Amarillo 1982, no pet.); Ochoa v. State, 444 S.W.2d 763, 764 (Tex.Crim.App.1969) (undercover officers who smoked marijuan......