Goodnight v. State

820 S.W.2d 254, 1991 Tex. App. LEXIS 3223, 1991 WL 290559
CourtCourt of Appeals of Texas
DecidedDecember 18, 1991
DocketNo. 09-90-127 CR
StatusPublished

This text of 820 S.W.2d 254 (Goodnight v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goodnight v. State, 820 S.W.2d 254, 1991 Tex. App. LEXIS 3223, 1991 WL 290559 (Tex. Ct. App. 1991).

Opinion

OPINION

BROOKSHIRE, Justice.

The appellant herein was charged by an indictment with the felony offense of delivery of a controlled substance, being cocaine, of less than 28 grams. Three enhancement paragraphs alleged prior felony convictions which had become final prior to the commission of the instant offense. The appellant was found guilty by a jury of delivery of a controlled substance, namely cocaine. The punishment was also assessed by the jury, and the punishment was set at 60 years confinement in the Institutional Division of the Texas Department of Criminal Justice.

[256]*256Certain steps in the first appellate process were untimely. However, on or about May 9,1990, the Court of Criminal Appeals issued its order granting the appellant an out-of-time appeal.

The appellant brings forward two points of error. They are: (1) “The trial court committed reversible error in failing to instruct the jury on ‘entrapment’ ”, and (2) “The trial court committed reversible error in not allowing the testimony of Leon McDonald, Jr. and Ricky English before the trial jury.”

The record reflects that a detective was assigned to the Montgomery County Narcotics Task Force. One of his assignments or duties was to attempt to infiltrate the drug scene in the town of Willis, being in the northern part of Montgomery County. A confidential informant was assigned to work with the detective.

The entrapment defense is set forth in the Tex.Penal Code Ann. § 8.06 (Vernon 1974). Section 8.06 reads:

(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.
(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

The test for entrapment is an objective one.

The confidential informant, as a part of his routine duties, called the undercover detective to arrange a meeting on or about January 1,1989, at about 5:15 p.m. with the informant and appellant. At this meeting the detective drove his pick-up beside the appellant’s car. The two talked for a brief minute. The confidential informant was standing outside, between the two vehicles. According to the version or portions of the evidence accepted by the jury, the detective wanted to purchase a “bolo”, a piece of rock cocaine, from the appellant. Appellant then told the detective that he (the appellant) would go to the Tall Timbers Apartments to get the “bolo”. The undercover detective then explained to the appellant that he (the detective) did not want to go to these apartments because he had heard street talk that certain people were getting beaten up inside of those apartments. This undercover detective had worked for another local police department for about two and a half years. The record reflects he had an honest, reasonable fear that he would be recognized at Tall Timbers Apartments.

Then the appellant suggested that the undercover detective follow him to a park close to the apartments. There, the undercover detective was to wait for the appellant to get the “bolo”, or rock cocaine, and bring it back. The three persons then left the original scene. The confidential informant was riding with the undercover detective. The two vehicles were driven to the back side of a park. Then the undercover detective asked the appellant if he (the detective) was going to get ripped off. The appellant advised the detective that he had dealt with certain people in the apartments before and that the undercover detective could trust the appellant and that the undercover detective could obtain a good size “bolo” or rock cocaine for $30. The undercover detective agreed to pay the $30 for a good size “bolo”.

The appellant departed and then returned in about five minutes. The undercover detective then went over to the appellant’s car and quizzed the appellant if everything had gone all right and the appellant told the undercover detective that everything had gone fine. Then the appellant put his own hand in his lap to show the undercover detective the cocaine that had been bought and was now in the possession of appellant. The undercover detective saw that the cocaine had apparently crumbled in the hands of the appellant. Then the detective accused the appellant of “inching off from it”, this being a common practice among cocaine dealers accomplished by taking a fingernail and pinching [257]*257off a corner of the “bolo”, or a comer of the rock cocaine.

Nevertheless, the undercover detective took the two bigger hunks or pieces of the “bolo”. After this narcotics buying transaction had been completed, the undercover detective told the appellant that he, the undercover detective, was going back to the house of his girlfriend. The confidential informant decided to ride back to Willis with the appellant. The cars drove off, and no arrest was made at that time.

The undercover detective took the cocaine to his car, put the same in a baggy, and after the appellant had driven off with the confidential informant, the detective marked the baggy with a permanent marker. These notations bore the date, the time, and the initials of the detective. Later the undercover detective placed the bag in a larger, more protective envelope and locked the envelope in his brief case; he then turned in the envelope to the Narcotics Task Force property room, which was a locked vault area, and the detective properly logged it in.

The envelope was properly traced and identified. A chemist also identified the envelope and its contents and the chemist testified that the substance inside was .18 grams of cocaine. The cocaine had been properly logged in the Narcotics Task Force property room.

The Theory of Entrapment

The appellant herein appeared voluntarily as a witness in his own defense. He testified that the confidential informant had borrowed $140. This $140 was allegedly to pay rent and buy food for the child of the confidential informant. Appellant swore that the $30 for the cocaine had never been given to him by the undercover detective or that the appellant had ever delivered the cocaine to the detective. But these matters or conflicts in the evidence were for the jury to decide.

Appellant did admit that he had delivered the cocaine to a person whose name was “Zachary”. This person “Zachary” was the same confidential informant. Then, the appellant took the position that he agreed to go and get some cocaine for the undercover detective — not “Zachary” — in order that he (the appellant) could recoup some of the money he had loaned to the confidential informant. We perceive the record reflects that the appellant admitted he did make a delivery of the cocaine to “Zachary”, and that the reason he did it was for the money. These evidentiary matters were developed when questioned by the prosecuting attorney. His unequivocal answer was, “Yes, ma’am.” Significant and interesting it is that the appellant does not attack or challenge the sufficiency of the evidence. Later the appellant was asked:

Q (By Ms. Hale) You can answer that.

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Related

Ramos v. State
632 S.W.2d 688 (Court of Appeals of Texas, 1982)
Rangel v. State
585 S.W.2d 695 (Court of Criminal Appeals of Texas, 1979)

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Bluebook (online)
820 S.W.2d 254, 1991 Tex. App. LEXIS 3223, 1991 WL 290559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goodnight-v-state-texapp-1991.