Russell v. State

• Decision Date: 25 July 1995
• Docket Number: No. 07-94-0230-CR,07-94-0230-CR
• Citation: 904 S.W.2d 191
• Parties: Darrell RUSSELL, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 191

904 S.W.2d 191

Darrell RUSSELL, Appellant v. The STATE of Texas, Appellee.

No. 07-94-0230-CR.

Court of Appeals of Texas Amarillo.

July 25, 1995.

Rehearing Overruled Aug. 29, 1995.

Law Offices of Gene Steed, Gene Steed, Perryton, Law Offices of Larry Warner, Larry Warner, Brownsville, for appellant.

Ochiltree County Atty., Bruce Roberson, Lubbock, for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

BOYD, Justice.

In seven points of error, appellant Darrell Russell challenges his conviction of the offense of possession of more than five pounds but less than fifty pounds of marijuana, a second degree felony. His punishment, assessed by the trial court, was set at eighteen (18) years confinement in the Texas Department of Criminal Justice, Institutional Division with a fine of $7,500. We affirm the judgment of the trial court.

In five of his seven points, appellant contends the trial court erred in: (1) denying his petition to secure the attendance of out-of-state witnesses; (2) failing to charge the jury on entrapment; (3) overruling his objection "that the prosecutor had incorrectly allocated the burden of coming forward with the evidence to the defendant;" (6) holding appellant had waived his right to a hearing on the admissibility of evidence obtained as the result of a search and to a hearing on the admissibility of a confession; and (7) admitting prejudicial hearsay as to appellant being a narcotics offender and that he was possibly transporting narcotics. In his two remaining points, appellant further asserts that (4) the district attorney committed fundamental error in offering his personal opinion as to appellant's guilt in his opening statement; and (5) his rights under the Texas Constitution were violated when the jury received evidence obtained as the result of a pretext arrest.

Briefly stated, the State's evidence showed that on October 10, 1992, appellant, in a vehicle owned and driven by him, was returning from a trip to Nebraska. He was accompanied by James Dixon, a paid confidential informant for the Clovis, New Mexico Police Department. Ochiltree County deputy sheriff Delvin Drum and City of Perryton police officer Alan Mires had been alerted that a vehicle answering the description of the one owned by appellant would be coming through their county containing contraband. As the officers saw appellant's vehicle approaching them on the opposite side of the highway, they crossed over the median and began following it. The officers attested that while they were behind the vehicle, the driver applied his brakes, revealing that one of the brake lights was malfunctioning.

According to the officers, they pulled the vehicle over because of the defective brake light. When the car had come to a stop, appellant exited the car and Deputy Drum met him at the rear of the vehicle. Drum asked appellant if he was carrying any marijuana in the vehicle and, although appellant denied doing so, Drum averred he could smell marijuana. Consequently, Drum approached the vehicle and looked inside. Upon doing so, he was able to see "some green Army type duffle bags in the back seat and they were gaping open with marijuana stems and such visible from the top." Appellant was then arrested and charged with the possession offense of which he was ultimately convicted. Other portions of the evidence will be referred to as may be necessary in the discussion of this appeal.

As appellant's first two points concern alleged errors affecting his right to assert an entrapment defense, we must first decide whether he was entitled to that defense. The section of the Texas Penal Code governing entrapment provides:

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.

Tex.Penal Code Ann. § 8.06(a) (Vernon 1994).

It has long been established in this State that the defense of entrapment is not available to a defendant who denies that he committed the offense charged. Warren v. State, 565 S.W.2d 931, 933 (Tex.Crim.App.1978); Stephens v. State, 522 S.W.2d 924, 926 (Tex.Crim.App.1975). The defense is not available in such instances because entrapment necessarily assumes the act charged was committed. Id. However, the defendant who pleads not guilty and who does not take the stand or offer any testimony inconsistent with his or her commission of the crime is still entitled to offer a defense of entrapment. Norman v. State, 588 S.W.2d 340, 345 (Tex.Crim.App.1979), cert. denied, 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d 261 (1980).

In the seminal case of England v. State, 887 S.W.2d 902 (Tex.Crim.App.1994), the Texas Court of Criminal Appeals had occasion to explicate what is required under section 8.06 in order to entitle a defendant to claim its benefit. The court commented that, contrary to some of its earlier expressions, the statute's effect was to embrace a "subjective/objective test" which, in the court's words, "requires an accused who claims entrapment to produce evidence that he was actually induced to commit the charged offense; that is to say, that he committed the offense 'because he was induced to do so'." Id. at 913.

Here, appellant took the stand and testified in his own behalf. Because of its importance in determining the questions presented in his first two points, we will review the pertinent parts of that testimony in some detail. At the time of his testimony, appellant had been implicated in the crime not only by the circumstances surrounding his arrest, but also by James Dixon. Dixon testified that he and appellant undertook the trip to Nebraska, from which they were returning at the time of the arrest, for the purpose of obtaining marijuana to be sold by appellant in the Clovis, New Mexico area. Subsequent to appellant's testimony, his estranged inamorata, Sharon Crank, verified Dixon's testimony about the purpose of the trip.

In his testimony, appellant stated he had moved from Clovis to Perryton to "get away from all of the drugs and stuff that was going on in Clovis." He had become acquainted with Dixon while living in Clovis where they had done cocaine "[a]lmost every day for quite a while." Appellant explained that Dixon was his "doctor," the person who would inject him with cocaine because he could not do so himself. He specifically denied that he had ever been involved in a "joint venture" with Dixon to go to Nebraska and obtain "pot" to take back to Clovis.

According to appellant, after he had moved to Perryton, he returned to Clovis for a visit. While there, he saw Dixon who was planning to go to Nebraska to pick up some clothes for his wife's children. At that time, appellant told Dixon he could use his car "because it got good gas milage." Appellant denied that he had ever called Dixon and asked him to go to Nebraska to pick up marijuana, explaining that he did not "even have a telephone."

Appellant averred that on the morning of October 10, 1992, at approximately 1:00 a.m., Dixon unexpectedly entered appellant's home in Perryton, walked into the bedroom and awoke appellant. Dixon was carrying one of the duffle bags which later contained the marijuana found in appellant's car at the time of his arrest. Dixon told appellant "he was going to pick up some clothes for his kids and he needed [appellant] to help drive because it was such a long distance." When queried by his counsel whether he had "any intent to go up there and pick marijuana at all," appellant emphatically responded, "No, sir, none whatsoever."

Just after crossing the Nebraska state line, appellant and Dixon pulled over at a rest stop. At that point, appellant asked Dixon if they were going to "rest" before continuing on. Appellant averred that Dixon told him this was as far as they were going and that he was "going down in this field to pick pot." Appellant testified that he became very upset and told Dixon, "Well, I want to go home. I want to go back, but I ain't got the money to go back." He related that Dixon told him, "Well, you are just going to have to stay here with me then." Appellant explained that he "was stuck" because, at the time, he was "totally broke" and did not even have a quarter to make a phone call. As Dixon went to pick the marijuana, appellant reclined his car seat and went to sleep. Dixon filled both of the duffle bags he had brought with the marijuana and threw them in the back seat of appellant's car.

When his counsel inquired as to when he discovered Dixon "had come up there to get pot," appellant replied, "As soon as he come up from down in that field and he had pot was when I knew for sure that's what he was doing." On the way back to Texas, Dixon told appellant he had to stop and telephone his girlfriend. While Dixon made the call, apparently for the purpose of alerting the police, appellant stayed in the car. According to appellant, he was "pretty pissed off" but "[t]here wasn't nothing [he] could do." He reiterated that the only reason he continued the trip back was because he did not want to leave his car with Dixon, who he did not trust and considered to be "flaky."

Appellant testified that when he was arrested, he asked to speak to a narcotics officer in order to "give a statement against Dixon." He also insists that his statement, which was received into evidence, was typed by a police officer and contained many errors and incorrect incriminating references to him.

In contending, inter alia, that he was entitled to the defense of entrapment because "he admitted the offense," appellant emphasizes the following colloquy during the direct examination by his counsel:

Q. And did he [Dixon] persuade you to haul that stuff back to Texas, something you would not have otherwise done?

A. Yes, sir.

However, the record...