Soto v. State , 1984 Tex. Crim. App. LEXIS 815 ( 1984 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of delivery of heroin. On appeal the Court of Appeals found that appellant raised the issue of entrapment, V.T.C.A., Penal Code See. 8.06, and that the state failed to disprove the defense. Soto v. State, 649 S.W.2d 801 (Tex.App.—Austin 1983). We granted the petition for review to consider the correctness of that ruling.

We summarize the evidence as recited in the opinion of the Court of Appeals:

“On October 17, 1978, the appellant and Rosalinda Cervantes, an informant for the Austin Police Department, were together at her grandmother’s house. Rosalinda used the phone, after which she asked the appellant if he wanted ‘to score’ for her. The appellant replied, ‘[n]o. You can score for me.’ Rosalinda then said, ‘[c]ome on, he is a good friend of mine. I just called him and asked him to come over.’ Appellant replied, ‘yeah, yeah.’ In fifteen minutes an undercover officer of the Austin Police Department drove up. Appellant testified that he still did not want to go but that Rosalinda urged him to do so. Appellant then left with the officer. He told the officer to wait for him some place and that he would go and ‘get it for him.’ Appellant testified, ‘[s]o, I went and got the dope for him and came back and gave it to him.’ He admitted telling the officer to pick the two largest of the four packets which he had brought back to the officer. He testified that he delivered the ‘dope’ because of his sexual relationship with Rosalinda and because she asked him to do so. He testified that she talked him ‘into it.’ He admitted that the officer gave him the money and asked ‘if I could score for him.’ He told the officer that he could do so, left, got the ‘dope’ and delivered it to the officer.

“The transaction between the appellant and the officer occurred as a result of a contact between the informant, Rosalinda Cervantes, and the officer. The officer testified that the informant called him to ask if he wanted to ‘score some more heroin.’ She gave the officer directions as to where and when to meet the appellant. The officer testified that he did meet the appellant and that the two drove in a vehicle, under directions given by appellant, to a laundromat on Holly Street. The appellant told the officer, ‘well, let me have the money and I will go get it for you, but you will have to wait for me here.’ The officer testified that he gave the appellant fifty dollars for one gram of heroin whereupon appellant told the officer, ‘no, you are going to have to buy two grams so I can have some of it, or else I’m not going to do it.’ The officer gave the appellant an additional fifty dollars; the appellant left and returned in a short time with four squares of aluminum. He asked the officer to pick the two largest squares. The officer did so and appellant retained the other two squares. The squares delivered to the officer, by chemical analysis, were determined to contain heroin.”

Although appellant’s testimony indicates he did so as a result of inducement by police informant Cervantes, the testimony of the officer raised a fact issue as to the reason appellant committed the offense. Although the officer’s testimony did not contradict the testimony given by appellant as to the conversation had with Cervantes and his relationship with her, it did contradict appellant’s assertion that he committed the offense as a result of that conversation and relationship. Specifically, the officer testified that before appellant agreed to perform the transaction he said “you are going to have to buy two grams so I can have some of it, or else I’m not going to do it.” This evidence shows a different motive: appellant committed the offense in order to obtain heroin for himself and he initiated the condition for delivery. The trial court as trier of fact was authorized to weigh the evidence and draw a conclusion from the circumstances that appellant was not induced by Cervantes to commit the offense.

Another reason that entrapment is not established is the failure of the evidence to show that Cervantes was a law enforcement agent under Sec. 8.06, supra. In Rangel v. State, 585 S.W.2d 695, the Court said:

“See. 8.06(b) clearly requires some type of communication between the law enforcement official and his agent or informant, than action by the informant on this communication. The nature of this communication and the extent to which the informant must be instructed or controlled by the law enforcement official has yet to be determined by this Court. However, the mere classification or labeling of a citizen as a ‘police informant’ is clearly insufficient when one considers the language of Sec. 8.06(b) and the practice commentary following. That commentary provides:

“ ‘The promotion of crime by anyone for the purpose of enforcing the law is questionable, and it certainly should not be permitted by agents over whom the police have control. Thus, the police should at the very least, apprise their agents of methods not to be used.’

“The quest in such cases is to determine the degree of police involvement and to judge whether that involvement provided only the opportunity for the criminal mind to commit the offense. Lopez v. State, 574 S.W.2d 563 (Tex.Cr.App.1978). Such an examination must cover two areas.

“The first area of inquiry should be the specific case at bar. A search must be made to determine if the officer specifically instructed his agent or informant to use an improper procedure to ‘make a case’ against a particular defendant. If such specific instructions are discovered, the entrapment defense is available....

“The control or instruction from a police officer to his informant which would constitute entrapment may also be of a general nature. Such general control might arise when an informant has been used repeatedly. After the informant becomes ‘experienced,’ he realizes how to ‘set up’ people to make cases. In such a situation, there is no specific instruction but the police official is still exercising control by failing to properly instruct his agents. Factors for consideration in such cases include number of cases this informant has been involved in and their disposition, if available; the amount and method of compensating the informant; the working relationship between the police officer and the informant; and his contacts with police officers.”

The record in this case is scant in this regard. The opinion of the Court of Appeals reveals these facts from this case:

“The officer admitted that he had no direct knowledge as to who initiated the transaction or who initiated the conversation about the exchange of heroin. That is, he did not know whether Rosalinda asked the appellant to sell or whether appellant asked her if she wanted to sell.

“... The undercover officer admitted that Rosalinda and the appellant had once travelled to Arizona. He further testified that the Austin Police Department paid the expenses of Rosalinda and the appellant coming back to Austin after they went off to Arizona together. The officer admitted that he was introduced to Rosalinda Cervantes by other officers of the Austin Police Department; that he was told that Rosalinda and he were to work together on heroin cases in East Austin; and that he was to be sent ‘specifically to East Austin with Rosalinda to work on making buys of controlled substances, specifically heroin.’...”

The record reflects the summary above. The first part quoted demonstrates a lack of specific instruction such as would render Cervantes a law enforcement agent under the first test of Rangel. The second part quoted, although revealing the objective of the relationship between Cervantes and the police does not reveal what degree of general control may have existed. We find the evidence does not show Cervantes was a law enforcement agent as defined in Sec. 8.06(b), supra, such as to support a finding of entrapment.

The judgment of the Court of Appeals is reversed and the cause is remanded to that court for such further proceedings as are appropriate.¹

1 . We express no opinion on the other grounds of error asserted in the appeal.