Shields v. State

730 S.W.2d 178, 1987 Tex. App. LEXIS 7501

Opinions

OPINION

DIAL, Justice.

The defendant was found guilty in a jury trial for the offense of delivery of methamphetamine. The jury set his punishment at confinement for twenty-five (25) years. The two points of error allege jury misconduct and insufficiency of the evidence based on entrapment. We will overrule the points of error and affirm the conviction.

On the entrapment issue, the undisputed facts were that an informant, Rai-ney, told a Kerrville police officer that the defendant was offering to sell some stolen U.S. savings bonds. The officer arranged for Rainey to introduce an undercover police officer to the defendant for the purpose of buying the stolen bonds. The officer offered the defendant $106.00 for the bonds and some “toot” (street terminology for methamphetamine). The defendant accepted the offer, and the officer paid him the money. The defendant directed the officer to drive to another location. There the defendant obtained the methamphetamine, which forms the basis for his conviction, and handed it to the officer.

The defendant testified that Rainey had previously asked him for methamphetamine on several occasions. He further testified that on the occasion in question the undercover officer had given him $60.00 with which he purchased a quarter of a gram of “speed” and delivered it to the officer.

The jury was instructed as follows:

You are instructed that it is a defense to prosecution that a person engaged in the conduct charged against him 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; however, conduct of law enforcement agents that merely affords a person an opportunity to commit an offense does not constitute entrapment.

By the term ‘law enforcement agent’ as used herein is meant 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 law was then applied to the facts describing James Rainey as a law enforcement agent.

This was a proper charge under the law. TEX.PENAL CODE ANN. § 8.06 (Vernon 1974); Rangel v. State, 585 S.W.2d 695, (Tex.Crim.App.1979). Even if the jury believed the defendant’s version of the testimony, it merely showed an opportunity for the defendant to commit the offense. This does not constitute entrapment. The point of error is overruled.

The other point of error is based on allegations that a juror voted for a harsher punishment because of a misstatement of law by another juror.

The recognized authority in this area is Sneed v. State, 670 S.W.2d 262 (Tex.Crim.App.1984).

To show that a jury’s discussion of the parole law constitutes reversible error, it must be shown that there was

“(1) a misstatement of the law

“(2) asserted as a fact

“(3) by one professing to know the law

“(4) which is relied upon by other jurors

“(5) who for that reason changed their vote to a harsher punishment.”

670 S.W.2d at 266.

The foreman of the jury testified that another member of the jury stated, “We will give him 25 years, because he’ll be out in 8 years anyway.” The witness further testified that the statement of the juror was “asserted as a fact” and that he relied on the correctness of the statement and voted for a harsher punishment than he would have done otherwise.

The jury was charged under TEX.CODE CRIM.PROC.ANN. art. 37.07, § 4(b) (Vernon Supp.1987) concerning the award of good conduct time and parole. The requisite statutory instruction includes the information that a defendant “will not become eligible for parole until the actual time served plus any good conduct time earned equals one-third of the sentence imposed....” Id.

This then becomes a case of first impression on the issue of a juror making a statement as one professing to know the law when he is merely repeating information correctly given to him in the charge of the court. We hold that this was not a statement made by one professing to know the law. The juror was merely paraphrasing the jury charge while participating in permissible deliberation.

More importantly, the statement attributable to the juror professing to know the law was not a misstatement of the law. An appraisal that an individual given 25 years would be released in 8 years is as accurate a statement of the parole law as could be expressed by a knowledgable expert.

We emphasize that the point of error as alleged does not involve an impermissible consideration of the manner in which the parole law might be applied to this particular defendant. It is rather, specifically based on the reliance of the jurors on a misstatement of the law by a fellow juror.

The point of error is overruled, and the judgment of conviction is affirmed.

CHAPA, J., files a dissenting opinion.