Freeman v. State , 1999 Tex. App. LEXIS 5762 ( 1999 )

Dissenting opinion by Justice GRANT.

GRANT, Justice,

dissenting.

I respectfully dissent.

Entrapment is generally a question for the jury unless the accused establishes the defense as a matter of law. Melton v. State, 713 S.W.2d 107, 113 (Tex.Crim.App.1986); Redman v. State, 533 S.W.2d 29, 31 (Tex.Crim.App.1976). Once the accused has presented evidence of entrapment, the State must disprove the defense beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App.1991).

The question in the present case is whether or not the defendant raised entrapment, so that he would be entitled to get a jury instruction on the entrapment defense.

The State’s testimony showed that their informant, who is paid on a per case basis, set up the case against Freeman. His informant testified that he made close to $28,000 or $30,000 a year doing this work.

The defendant testified that he had been in a penitentiary most of his life, but not for using or selling crack cocaine. He testified that he had been addicted to drugs, but not crack cocaine. He testified that the State’s agent introduced him to the crack cocaine and that he quickly became hooked. He testified that because of this addiction he lost his job as a pipefit-ter’s helper. He testified that until the time he lost his job, he was buying drugs from the State’s informant and other people. He testified that after he lost his job, he was approached by the informant and asked to make a run to Shreveport to pick up some drugs; that he was promised that he would be given some of the drugs if he made the trip. He testified that the State’s informant contacted him on multiple occasions trying to get him to go to Shreveport to pick up some drugs. The State’s informant provided the money. He testified that had it not been for the State pressuring him to make the trip, he would have not have done so.

The defendant’s testimony asserts that the action was clearly the plan of the State and did not originate in the defendant’s mind, that the State introduced the defendant to crack cocaine so that he could not resist the State’s urging him to go and make the purchase, and that the State persistently, over a two-week period, requested him to go and make the purchase. Evidence that the State provided crack cocaine for the defendant’s use along with promises for more for commission of the charged act raises the issue of entrapment as a fact question for the jury.