Shott v. State, 44387

• Decision Date: 14 December 1971
• Docket Number: No. 44387,44387
• Citation: 475 S.W.2d 791
• Parties: Ronnie Lee SHOTT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 791

475 S.W.2d 791

Ronnie Lee SHOTT, Appellant, v. The STATE of Texas, Appellee.

No. 44387.

Court of Criminal Appeals of Texas.

Dec. 14, 1971.

Rehearing Denied Feb. 16, 1972.

Don R. Wilson, of Robinson, Wilson & Holloway, Abilene, for appellant.

Ed Paynter, Dist. Atty., Lynn Ingalsbe, Asst. Dist. Atty., Abilene, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of marihuana where the punishment was assessed at 5 years.

At the outset appellant complains that the trial court erred in failing to instruct the jury as to the law of entrapment despite a timely presented special requested charge.

A brief discussion of the facts will be necessary.

Sgt. Joe Trammell, Special Services Division, Abilene Police Department, testified that at his request Marx R. Howell, employee of the Texas Department of Public Safety, was sent to Abilene as an undercover agent.

Howell testified the Abilene Police Department put him in contact with a man named Haggard who assisted him in his undercover work.

On October 29, 1969, Howell, while riding with Haggard in Haggard's car in the vicinity of Mack Eplen's Drive Inn, had occasion to meet the appellant. He introduced himself to the appellant as 'Max Martin.' Appellant got in the car and the threesome proceeded to the Drive Inn. Howell then related that while they waited for Cokes which had been ordered the appellant asked him if he wanted to buy some marihuana, and upon inquiry told him the cost would be $5.00. Thereafter the three proceeded at the appellant's directions to Merkel, Texas where Howell received approximately one match box of marihuana from the appellant for which he paid $5.00.

The chain of custody was established and the chemist testified his analysis showed the substance to be 2.90 grams of marihuana.

The defense then offered the deposition of Emmitt Haggard of Las Vegas, Nevada. He related that he had been in the air force and during most of the year 1969 he was stationed at Dyess Air Force Base at Abilene; that during such time he had been indicted for possession of marihuana and agreed to work with the police, hoping that his indictment would be dismissed--which it eventually was. On the date in question, while with Howell, he stated he waved at the appellant, whom he had known for about a year, and at Howell's instruction asked the appellant if he had any marihuana. The appellant stated he did and got in Haggard's car. After Cokes at the Drive Inn the three drove to Merkel where the appellant sold Howell $5.00 worth of marihuana.

'Where one is induced to do an act and the inducement prevents the act from being criminal, the fact of inducement constitutes a defense. However, the mere fact that one person affords another an opportunity to commit a crime, with a view to prosecuting the other person, is no defense.' 16 Tex.Jur.2d, Criminal Law, Sec. 102, p. 234.

As pointed out in Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452, the general rule is that where the criminal intent originates in the mind of the accused, the fact that officers furnish the opportunity for or aid the accused in the commission of a crime constitutes no defense to such a prosecution. See also Ochoa v. State, Tex.Cr.App., 444 S.W.2d 763; Jones v. State, Tex.Cr.App., 427 S.W.2d 616.

Unless it has been established as a matter of law that the accused was entrapped, the factual issue is a question for the jury when the evidence raises an issue as to whether the intent to commit the crime originated in the mind of the accused or...