NUMBER 13-01-183-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JAVIER ROLANDO RESENDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103th District Court of Cameron County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Garza
Appellant, Xavier Rolando Resendez, was convicted of bribery with enhancement
after a jury trial and was sentenced to fifteen years’ imprisonment and a fine of $5,000.
Appellant appeals his conviction to this Court in three issues. We conclude appellant was
not entrapped, the trial court did not make improper comments and remarks, and
appellant’s counsel provided effective representation. We affirm the judgment of the trial
court.
Background
In July of 2000, Michael Garza, a bail bondsman in Cameron County, Texas,
contacted the district attorney’s office and informed Rebecca Rubane, an assistant district
attorney, that his client, Xavier Resendez, had asked Garza if there was any way to
dispose of charges against him for cocaine possession “under the table” (i.e., by bribing
someone at the district attorney’s office). Garza agreed to record a telephone conversation
between himself and appellant and to provide appellant the name and telephone number
of an undercover agent posing as Rubane’s boyfriend in order to facilitate a sting
operation. Upon receiving the undercover agent’s name and number from Garza,
appellant immediately contacted the agent and discussed the price for getting his charge
dismissed. Appellant then called Garza one more time, complaining about the high price
being demanded. These calls were all recorded and transcribed.
Appellant and the undercover agent then had a series of telephone conversations
and personal meetings where appellant provided cash payments for the bribe. Appellant
also requested that the agent pass bribes to Rubane on behalf of his brother and his friend
and negotiated the price for each additional bribe. A total of $7,800 in cash was delivered
to the undercover agent by appellant for these bribes. All phone calls and personal
meetings involving appellant were recorded by the agent. Appellant was then arrested and
indicted for bribery.
Appellant pled not guilty at trial, claiming that he was entrapped by the actions of
Garza, his bail bondsman and initial contact. While on the stand during the punishment
phase of the trial, appellant admitted to committing bribery. On appeal, appellant argues:
(1) the evidence was legally insufficient to support his conviction for the offense of bribery,
as evidence of entrapment provided a defense to prosecution; (2) the trial court erred by
making improper comments and remarks regarding evidence presented at trial; and (3)
appellant’s trial counsel provided ineffective assistance of counsel. We address each
issue in turn.
Legal Sufficiency
Appellant argues by his first issue that the evidence is legally insufficient to support
his conviction for bribery. He claims that his defense of entrapment was successfully
raised and thus constitutes a bar to prosecution. The State argues that appellant waived
his right to challenge the sufficiency of evidence when he admitted his guilt at the
punishment phase of the trial.
We first address the question of waiver. The State argues in its brief that because
appellant admitted guilt during the punishment phase of the trial, the De Garmo doctrine
applies. See De Garmo v. State, 691 S.W.2d 657, 660-61 (Tex. Crim. App. 1985).
According to the De Garmo doctrine, a defendant who admits guilt at the punishment
phase of trial waives his right to bring a sufficiency challenge of the verdict on appeal. Id.
We disagree with the State’s argument that the De Garmo doctrine still applies to
challenges of legal sufficiency.
In Leday v. State, 983 S.W.2d 713, 721 (Tex. Crim. App.
1998), the Texas Court of Criminal Appeals clearly noted that the reasoning underlying the
De Garmo doctrine’s applicability to legal sufficiency challenges “disappeared after the
Supreme Court’s holding that the Double Jeopardy clause of the Fifth Amendment would
be violated by a retrial after an appellate court held that the evidence of guilt was legally
insufficient.”
The Leday opinion illustrates the basic unfairness imposed upon defendants
by the De Garmo doctrine: if the defendant admits guilt at the punishment phase, the De
Garmo doctrine prevents an appeal. However, if the defendant continues to deny guilt, the
potential consequences include punishment for perjury and a potentially longer sentence
for failure to show remorse. If the defendant tries to avoid this problem by refusing to
testify at all during the punishment phase, the opportunity is lost for the defendant to give
the jury meaningful mitigating information that only the defendant can provide. Id., at 723-24; see Gonzales v. State, 2 S.W.3d 411, 417 (Tex. App.–San Antonio 1999, no pet.).
The Leday opinion also points out that the De Garmo doctrine is based only on
dictum from the De Garmo opinion, as the court in that case performed a legal sufficiency
analysis and found the evidence sufficient to sustain the verdict, notwithstanding its own
supposition that such analysis was unnecessary. De Garmo, 691 S.W.2d at 661; Leday,
983 S.W.2d at 723 n.14. Since Leday, the Court of Criminal Appeals has declined to apply
the De Garmo doctrine. See Reyes v. State, 994 S.W.2d 151, 153 (Tex. Crim. App. 1999)
(referring to the “ill-written doctrine in De Garmo” as misleading); Reyes v. State, 30
S.W.3d 409, 410 (Tex. Crim. App. 2000) (referring to De Garmo as overruled by Leday).
Based on the court of criminal appeals’ opinion in Leday , as well as subsequent
case law, we find that appellant did not waive his right to challenge the legal sufficiency of
the jury’s decision regarding his entrapment defense.
As we find no waiver, we now address appellant’s claim that the evidence against
him was legally insufficient to overcome his defense of entrapment. A review of the jury’s
rejection of an entrapment defense focuses on the legal sufficiency of the evidence. Flores
v. State, 84 S.W.3d 675, 681 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d); Torres v.
State, 980 S.W.2d 873, 875 (Tex. App.–San Antonio 1998, no pet.). We review legal
sufficiency challenges by considering all the evidence that supports the conviction and
reviewing it in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307,
319 (1979); see Sanders v. State, 119 S.W.3d 818, 829 (Tex. Crim. App. 2003). Our
review of the sufficiency of the evidence will turn on whether, viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found against
the defendant on a defense issue beyond a reasonable doubt. Saxton v. State, 804
S.W.2d 910, 910 (Tex. Crim. App. 1991).
Entrapment is a defense to prosecution when “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. Pen.
Code Ann. § 8.06(a) (Vernon 2003); see Williams v. State, 848 S.W.2d 777, 781 (Tex.
App.–Houston [14th Dist.] 1993, no pet.) (providing a party with the phone number of a
contact, cash and marijuana merely affords the opportunity to commit a crime and does
not constitute entrapment). To satisfy the requirements of the entrapment defense, a party
must produce evidence demonstrating that (1) she was actually induced to commit the
offense, and (2) the inducement would have caused an ordinarily law-abiding person of
average resistance nevertheless to commit the offense. See England v. State, 887 S.W.2d
902, 908 (Tex. Crim. App. 1994). Because entrapment is a defense to prosecution rather
than an affirmative defense, the defendant has the initial burden to produce evidence
raising the defense; the burden then shifts to the State to disprove the defense beyond a
reasonable doubt. Tex. Pen. Code Ann. § 2.03 (Vernon 2003); Russell v. State, 904
S.W.2d 191, 197 (Tex. App.–Amarillo 1995, pet. ref’d).
Appellant argues that the testimony at trial proved that Garza, who was acting as
an agent of law enforcement, entrapped appellant and caused him to commit the crime of
bribery.
In support of this claim, appellant points to testimony from Garza regarding the
first recorded call. Garza admitted that appellant did not initially understand what he was
talking about when the subject of bribery was brought up. The transcript of this phone
conversation, which was admitted into evidence and read to the jury, is as follows:
Garza: Remember what we talked about the other day?
Appellant: About what?
Garza: About what you were asking me - if something could be done.
Appellant: Ah-huh.
Garza: I’ve got a number and a name for you.
Appellant: Oh . . . what do you mean?
Garza: A guy for you to contact.
Appellant: I don’t understand. What?
. . .
Garza: If something could be done under the table . . .
Appellant also points to testimony from his brother and himself that indicated it was Garza,
not appellant, who initially broached the idea of bribing the district attorney.
However, the trial record also includes testimony from Garza asserting that appellant
first brought up the idea of bribing someone in relation to his cocaine charges. The above
conversation between Garza and appellant in which Garza re-introduces the previously-discussed topic of bribery goes on to show that, once appellant understood what Garza
was talking about, he vigorously assented (“Drop [the charges]! Right on!”) and began
asking for detailed instructions on how to initiate the conversation with Garza’s contact.
Transcripts admitted as evidence show that the only other conversation appellant had with
Garza occurred immediately after appellant first contacted the undercover agent and
consisted of a brief exchange during which appellant primarily complained about the high
price he was being charged for the bribe. There is no evidence in the record of any further
interaction between appellant and Garza. The record also includes testimony from the
undercover agent who posed as the assistant district attorney’s boyfriend and arranged to
collect the bribes. His testimony, which was corroborated by transcripts, revealed that
appellant, after getting the contact information from Garza, called the agent repeatedly to
arrange the bribe, came to pre-arranged meetings, gave the agent a total of $7,800 in
cash, and on his own initiative began arranging for additional bribes on behalf of two other
individuals.
It is clear from the verdict that the jury did not choose to accept appellant’s
entrapment defense. See Adelman, 828 S.W.2d at 421 (“the trier of fact - not the appellate
court - is free to accept or reject all or any portion of any witness testimony.”). It is similarly
clear from the evidence that a rational trier of fact could conclude beyond a reasonable
doubt, viewing the evidence in the light most favorable to the verdict, that Garza’s conduct
would not likely cause an otherwise unwilling person to bribe an official or that his conduct
actually induced appellant to do so. See Flores v. State, 84 S.W.3d 675, 684 (Tex.
App.–Houston [1st Dist.] 2002, pet. ref’d); Williams, 848 S.W.2d at 781. Accordingly we
overrule appellant’s first issue.
Improper Comments
By his second issue, appellant argues that the trial court erred by making improper
comments and remarks in violation of article 38.05 of the code of criminal procedure. See
Tex. Code Crim. Pro. Ann. art. 38.05 (Vernon 1979). Appellant complains in his brief
about three separate instances in which the trial court made comments from the bench.
In the first instance, appellant’s counsel objected to a line of questioning by the State; the
court noted that appellant’s counsel had been engaged in similarly inappropriate
questioning tactics earlier. In the second occasion, appellant’s counsel objected to a
question on grounds that essentially informed his witness how to answer, for which the
court admonished counsel to “quit testifying.” In the third instance, the court noted that
appellant was being unresponsive in his answers to the prosecutor. Appellant claims that
these comments violate article 38.05, which reads in part, “the judge shall not . .. make
any remark calculated to convey to the jury his opinion of the case.” Id.
It is clear from the record that these comments do not violate this section of the
code of criminal procedure, as they do not convey the judge’s opinion about the case.
Further, the trial record demonstrates appellant’s counsel failed to object to any of the
these comments. In order to preserve an error for appellate review, a party must make an
objection to the court and the court must explicitly or implicitly make an adverse ruling or
refuse to rule on that objection. Tex. R. App. P. 33.1; see Flores v. State, 871 S.W.2d 714,
723 (Tex. Crim. App. 1993). Thus, appellant has waived this complaint by not stating his
objection with specificity and preserving it for appeal.
Ineffective Assistance of Counsel
By his third issue, appellant contends he was not afforded effective assistance of
counsel. He points to the same three comments from the bench he complained of in his
second issue and argues that his attorney demonstrated his ineffectiveness by failing to
object to the trial court’s improper comments and remarks. Because this argument is
based on constitutional considerations rather than on sufficiency, appellant’s admission of
guilt does not affect his right to bring an appeal on this ground. See Leday, 983 S.W.2d
at 725-26; Reyes, 994 S.W.2d at 153.
This Court has adopted the two-pronged Strickland test to determine whether
representation was so inadequate that it violated a defendant’s Sixth Amendment right to
counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984) (recognizing the sixth
amendment right to counsel); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.
1986); Alfano v. State, 780 S.W.2d 494, 495 (Tex. App.–Corpus Christi 1989, no pet.). To
establish ineffective assistance of counsel, appellant must show: (1) his attorney’s
representation fell below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for his attorney’s errors, the result of the proceeding would
have been different. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 57. Whether
this test has been met is to be judged on appeal by the totality of the representation, not
by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App.
1995).
The burden is on appellant to prove ineffective assistance of counsel by a
preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.–Corpus
Christi 2000, no pet.). Appellant must overcome the strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance. Id. Also, the acts
or omissions that form the basis of appellant’s claim of ineffective assistance must be
evidenced by the record. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.
1999).
As we have already concluded, the remarks from the bench did not constitute
improper comments, and thus, counsel’s failure to object to them does not constitute error.
Also, the record affirmatively demonstrates that throughout the trial, counsel more than
adequately represented and protected the interests of his client. He filed a motion in limine
before the trial to exclude a prior arrest, filed a motion to dismiss based on the defense of
entrapment, and filed a motion to dismiss based on a violation of the attorney-client
privilege by the State. He presented witnesses and cross-examined the State’s witnesses
vigorously, raising an issue as to whether the audio tapes implicating his clients could have
been altered, and introduced evidence that allegedly demonstrated that Garza had a
financial motive for entrapping his client. Counsel asserted objections throughout the trial
and received favorable rulings on some of them, including the first instance appellant
complains of above. He also submitted jury instructions to the court which included an
instruction on the defense of entrapment, as well as further instructions ensuring that the
jury knew it was to disregard any comments from the judge expressing an opinion about
the guilt or innocence of the defendant.
Because the comments from the bench were not improper, appellant cannot
demonstrate that the result of the trial would have been different had his desired objections
been made. See Strickland, 466 U.S. at 687. Accordingly we overrule appellant’s
remaining issue on appeal, and affirm the judgment of the trial court. _____________________
DORI CONTRERAS GARZA,
Justice
Publish.
Tex.R.App.P. 47.2(b)
Opinion delivered and filed
this the 12th day of August, 2004.