McEntyre v. State

717 S.W.2d 140, 1986 Tex. App. LEXIS 8314
CourtCourt of Appeals of Texas
DecidedAugust 21, 1986
Docket01-85-00844-CR
StatusPublished
Cited by21 cases

This text of 717 S.W.2d 140 (McEntyre 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
McEntyre v. State, 717 S.W.2d 140, 1986 Tex. App. LEXIS 8314 (Tex. Ct. App. 1986).

Opinions

OPINION

DUNN, Justice.

A jury found appellant guilty of solicitation of capital murder. The court assessed punishment at 25 years confinement.

We affirm.

Robert Garcia testified that on April 24, 1985, appellant called him and asked him if he was interested in making extra money. Appellant requested that Garcia meet him at a hotel to discuss the details. At the hotel, appellant told him that he wanted Garcia to assist him in murdering someone who would have expensive jewelry as well as about $3,000.00 or more in cash on his person. Garcia was to pose as a cocaine dealer; appellant would bring the victim to Garcia’s apartment to purchase cocaine where appellant would kill the victim. The money and jewelry on the victim’s person would then be split between them. At this point, Garcia thought appellant was joking. He left the meeting, however, without having renounced the plan and saying he would think about it.

Later that day, Garcia met Sergeant Goetschius, of the Texas City Police Department, (TCPD), to discuss a burglary at Garcia’s former place of employment. Garcia also revealed what had transpired earlier between himself and appellant. Garcia was asked to call appellant from the police station and ask appellant about his plans. Appellant suggested that they meet instead at the hotel to discuss the scheme.

Garcia was then fitted by police officers with a wireless transmitter. The only instructions he received were to wear the microphone and “go along with” appellant. Garcia testified he was not aware of a button on the equipment that could stop [143]*143the transmissions, and that the only time the equipment was touched was when the police charged the batteries. During transmission, the police could not talk to Garcia but would communicate with him by blinking their lights.

At approximately 7:00 p.m., Garcia proceeded to the hotel where appellant indicated that he had unsuccessfully tried to contact the intended victim, now revealed as Timothy Woods, a cocaine dealer. Appellant asked him to wait in a lot in front of his sister’s house while appellant tried to contact Woods. Appellant’s plans varied as the evening progressed, but appellant continued to express his desire to kill Woods, be it by strangling him in Garcia's car or by beating him with a baseball bat in Garcia’s apartment.

Garcia further testified that appellant never indicated renunciation of these plans. In fact, when Garcia expressed reservations and asked him to abandon the scheme, appellant gave him his wallet and wedding ring as collateral because his plan was a “sure thing.” Appellant also gave him a baseball bat to put in his apartment. When Garcia suggested that they only rob and not kill Woods, appellant responded that the results of not killing him would be too dangerous.

Appellant was concerned that Garcia would leave, and as they waited for Woods, he bought Garcia dinner. He also guaranteed that the proceeds would be split 50/50.

At approximately 10:00 p.m., Woods was finally contacted. When appellant went to pick up Woods, the police told Garcia to proceed with appellant’s plans. Garcia then went to his apartment and waited outside for appellant and Woods, believing appellant was not familiar with his apartment. When they arrived, Woods stayed in the parking lot; appellant walked upstairs to Garcia’s apartment where he was arrested.

Garcia also testified that he had never heard he had been designated as a confidential informant, and claimed he had never provided information on criminal activity to the police before this incident.

Goetschius testified that Garcia informed him of appellant’s scheme and that Garcia agreed to cooperate with him in monitoring appellant’s conversations. Garcia’s telephone call to appellant was recorded and he was then fitted with a transmitter. Garcia’s only instructions were that he was to let appellant talk and lead the conversation and that the investigation would terminate upon any renunciation on the part of the appellant.

Goetschius further testified that he was present in the surveillance van watching the encounter between appellant and Garcia and monitoring their conversations. His testimony concerning the content of the conversations corroborated that of Garcia.

Goetschius also testified that Garcia, to his knowledge, was not an employee or informant of the TCPD. He had spoken to Garcia before on a personal basis. He denied that Garcia had ever been offered financial or other incentives to take part in the investigation, and testified that it was departmental policy not to pay informants.

Sergeant Randle Burrows of the Galveston County Sheriff’s Department testified that he fitted Garcia with the transmitter and operated the recorder throughout the period of surveillance. He did not tell Garcia how to operate or deactivate the transmitter, except that it could only detect conversations from a close proximity to Garcia.

Joe Haralson of the Texas Rangers testified that he was in radio communication with the surveillance van. He followed appellant and Woods to Garcia’s apartment complex. He observed that Woods remained on the motorcycle in the parking lot while appellant went to Garcia’s apartment. Woods had $1,500.00 on his person. Haral-son further testified that he had been told that Garcia was a “proven informant” who had worked as an informant in the past and had given reliable information.

Richard Branson, Assistant Criminal District Attorney of Galveston County, testified that he was in the surveillance van. [144]*144He identified a baseball bat he had observed appellant take from appellant’s truck to Garcia’s car. He testified that he had advised Garcia to let appellant do the talking and not suggest anything. He also remembered that at some point while driving, the officers lost transmission but quickly regained it by changing routes; he suggested that that occurrence might account for a seven minute gap in the tapes. He characterized Garcia as a “cooperating individual” in the case rather than a confidential informant.

Appellant testified that he used cocaine and that Woods was a dealer of his who had sold him “trash.” Appellant had unsuccessfully tried to get his money back from Woods and was eventually interested in “pulling a scheme” to get the money. He believed Garcia was qualified to help him and called Garcia about a money-making scheme but it was Garcia who initiated the idea of murder. Appellant told Garcia he had doubts, but Garcia persuaded him because Garcia was broke and needed the money. Appellant maintained that he had eventually so committed himself to Garcia and Woods that he could not withdraw from the plan.

Although appellant conceded his voice was on the tapes, he said he was high on cocaine, “running at the mouth,” and did not have the intent to carry out his proposals. He further testified that Garcia had asked him to suggest “some things,” and that towards the end of the last tape he told Garcia he could not go through with the plan. When he arrived with Woods at Garcia’s apartment complex, he determined he could not follow through with the plan and told Woods to stay on the motorcycle while he would go upstairs. He planned to tell Garcia to call the plan off but when he arrived at Garcia’s apartment, he was arrested.

Appellant’s first ground of error alleges the trial court erred in overruling his motion on the defense of entrapment.

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McEntyre v. State
717 S.W.2d 140 (Court of Appeals of Texas, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
717 S.W.2d 140, 1986 Tex. App. LEXIS 8314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcentyre-v-state-texapp-1986.