Shamar Deshawn Oliver v. State ( 2012 )

NOS. 07-12-00026-CR, 07-12-00027-CR, 07-12-00028-CR, 07-12-00029-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 20, 2012
SHAMAR DESHAWN OLIVER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NOS. 63,781-E, 63,909-E, 63,983-E, 64,026-E;
HONORABLE DOUGLAS WOODBURN, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Shamar Deshawn Oliver, appeals his convictions for delivery of a
controlled substance in an amount of more than four grams but less than 200 grams1
(No. 07-12-0026-CR), delivery of a controlled substance in an amount of more than four
grams but less than 200 grams within 1,000 feet of a day care center 2 (No. 07-12-0027-
CR), delivery of a controlled substance in an amount of more than one gram but less
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010).
2
See id. § 481.134(c)(1) (West Supp. 2012).
than four grams within 1,000 feet of a school 3 (No. 07-12-0028-CR), and delivery of a
controlled substance of more than one gram but less than four grams 4 (No. 07-12-0029-
CR). Appellant was sentenced to 15 years in the Institutional Division of the Texas
Department of Criminal Justice (ID-TDCJ) in both No. 07-12-0026-CR and No. 07-12-
0029-CR with the sentences to be served consecutively to appellant’s completing his
sentences in No. 07-12-0027-CR and No. 07-12-0028-CR. Appellant was sentenced to
20 years in the ID-TDCJ in both No. 07-12-0027-CR and No. 07-12-0028-CR.
Appellant appeals the judgments in each case alleging that the trial court
committed reversible error by limiting appellant’s rights to cross-examine a State’s
witness concerning the bias or animus of the witness toward appellant and by not
allowing appellant to put on evidence of entrapment. We disagree and will affirm.
Factual and Procedural Background
In February 2011, appellant met Harvey Battle. Unknown to appellant, Battle
was working for the Amarillo Police Department as a confidential informant. After
meeting Battle, appellant engaged in a series of drug deals with him. These
transactions continued until June 2011 when appellant was arrested. As a result of
these transactions appellant was charged in four separate indictments for delivery of
differing amounts of controlled substances. On all but one occasion, the drug was crack
cocaine. The exception was the last transaction which involved delivery of powdered
cocaine. In each of the four indicted cases, Battle was under the supervision of Amarillo
3
See id.
4
See id. § 481.112(c).
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Police Department narcotics officer Thomas Hightower. On the occasion of each of the
drug buys, Battle was wired with a wireless microphone, transmitter, and a recording
device and was under video monitoring. On each occasion, Battle’s vehicle was
searched before and after the transaction to insure he took no controlled substances
with him and that he retained none of the controlled substances after the buy. The
Amarillo Police provided the funds that Battle used to purchase the controlled
substances from appellant. Working with Hightower was Officer Bill Redden. 5 Officer
Redden had previously arrested appellant in 2001 and used appellant as a confidential
informant in 2004.
Appellant waived his right to a jury trial and agreed that all four cases would be
tried together before the trial court. The record reflects that Hightower was in charge of
the investigation and the purchases of controlled substances by Battle from appellant.
Further, the record reflects that Redden’s primary functions during this investigation
were to search Battle’s vehicle before and after the delivery in question was completed
and to assist with surveillance of the drug purchases.
During the trial, appellant sought to introduce a document marked as Defendant’s
Exhibit 5 (D-5). This document was a complaint that appellant alleged he filed against
Redden with both the Amarillo Police Department and the Federal Bureau of
Investigation. It was through this document that appellant was attempting to prove that,
due to the actions of Redden, he was entrapped into committing the offenses in
question. The State objected to the admission of D-5 on a number of different grounds
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By date of appellant’s trial, Redden had retired from the APD and was working
for the Randall County District Attorney’s office as an investigator.
3
which the trial court sustained. However, before offering the exhibit, appellant’s trial
counsel was allowed to cross-examine Redden regarding his knowledge that the
complaint had in fact been filed against him. Likewise, appellant’s trial counsel spent
most of his time during cross-examination questioning Redden about his past dealings
with appellant, to include the number of civil forfeiture proceedings Redden had
instigated against appellant and Redden’s involvement in efforts to revoke the probation
of appellant’s wife.
Appellant testified in his own behalf and admitted each of the deliveries in
question. However, he contended that they were as a result of the economic hardship
caused by Redden’s activities against him. During cross-examination by the State,
appellant admitted that the only inducement Battle ever made regarding the sale of
drugs was the purchase price. At the conclusion of the evidence, the trial court found
appellant guilty on each charge and sentenced appellant to the terms of confinement
recited earlier.
Appellant now appeals, contending the trial judge impermissibly limited his right
of cross-examination of Redden and denied him the ability to present evidence of
entrapment. Disagreeing with appellant, we will affirm the trial court’s judgments.
Cross-examination of Redden
Appellant’s contention is simply that the trial court denied him the right to show
that Redden had an animus or bias against him. This is so, according to appellant,
because the trial court would not allow full cross-examination of Redden regarding
actions that appellant alleged Redden took against him after appellant got out of prison.
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Standard of Review
Initially, we note that the trial court’s rulings on admission or exclusion of
evidence are reviewed for an abuse of discretion. See Martinez v. State, 327 S.W.3d
727, 736 (Tex.Crim.App. 2010), cert. denied, 131 S.Ct 2966, 180 L. Ed. 2d 253 (2011).
A trial court does not abuse its discretion if its decision is within the zone of reasonable
disagreement. See Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007). We
will sustain the trial court’s decision if that decision is correct on any theory of law
applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990)
(en banc).
Analysis
We begin our analysis of appellant’s issue with the observation that, despite the
statements in appellant’s brief, Redden was only a supporting character in the play that
was produced before the trial court. Redden’s functions were to search Battle’s vehicle
before and after the drug buy and to provide additional eyes and ears for the
surveillance. Redden was not a key witness for the State as contended by appellant.
Rather, he was, at best, a witness who corroborated parts of the lead investigator’s and
confidential informant’s testimony.
A review of the record reveals that appellant wished to cross-examine Redden
regarding Redden’s previous dealings with appellant. The trial court permitted Redden
to be cross-examined regarding his previous arrests of appellant, civil forfeiture
proceedings Redden had initiated against appellant, whether he had contacted the
probation officer of appellant’s wife in an attempt to have her probation revoked, and
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whether Redden had knowledge of a complaint that appellant had filed against him with
the Amarillo Police Department and the Federal Bureau of Investigation. This record
hardly supports appellant’s contention that his right of cross-examination was limited by
the trial court’s rulings.
The only specific ruling about which appellant complains was the trial court’s
denial of admission of D-5, appellant’s compendium of complaints against Redden. The
trial court agreed with the State that the document was riddled with hearsay and
hearsay upon hearsay. The exhibit was produced for the appellate record by virtue of a
bill of exception. We have reviewed the document and agree with the trial court’s
sustaining the State’s objection, especially regarding the amount of hearsay contained
in the document. Accordingly, the trial court did not abuse it discretion in sustaining the
State’s objection to admission of D-5. See TEX. R. EVID. 802; Martinez, 327 S.W.3d at
736.
Having determined that the trial court did not improperly limit appellant’s right to
cross-examine Redden and that the trial court’s exclusion of the D-5 was not an abuse
of discretion, we overrule appellant’s first issue.
Entrapment Defense
Appellant’s final issue contends that the trial court erred by not allowing appellant
to put on evidence of entrapment. Our review of the issue leads us to the conclusion
that appellant is again complaining about the evidentiary rulings of the trial court.
Therefore, the same standard of review referred to above is at play.
6
Appellant posits that the complaint he filed with the Amarillo Police Department
and the Federal Bureau of Investigation would provide a prima facie case for the
defense of entrapment. There are two fundamental flaws in appellant’s contention.
First, the document, when offered during appellant’s testimony, is still the same
document filled with the same hearsay and hearsay upon hearsay that the trial court
found objectionable when it was offered while Redden testified. Therefore, the trial
court’s ruling is correct although, at the time of the second offer, the State did not voice
the hearsay objection again. See Romero, 800 S.W.2d at 543.
Second, appellant’s argument fails to explain how, even if admitted and accepted
as true, this exhibit proves a prima facie case for the defense of entrapment. The
defense of entrapment is contained in section 8.06 of the Texas Penal Code. See TEX.
PENAL CODE ANN. § 8.06(a) (West 2011). The Texas Court of Criminal Appeals has
stated that when a criminal defendant raises the defense of entrapment at trial, he has
the burden of producing evidence to establish every element of that defense.
Hernandez v. State, 161 S.W.3d 491, 497 (Tex.Crim.App. 2005). The criminal
defendant must present a prima facie case that 1) he engaged in the conduct charged;
2) because he was induced to do so by a law enforcement agent; 3) who used
persuasion or other means; and 4) those means were likely to cause persons to commit
the offense. Id. There is simply no showing by appellant of how this evidence, D-5, can
be read to make a prima facie case without resorting to the most astounding leaps of
logic and faith. For example, appellant complains about Redden’s actions in seeking
civil forfeiture proceedings. What the record reveals is that Redden was involved in
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three proceedings against appellant and only one was not granted. Yet, we are to
interpret Redden’s use of the available forfeiture proceedings as evidence of
entrapment by economic duress. Why this is so—as opposed to simply the
consequences of the lifestyle appellant has chosen to live—goes unexplained.
There is simply nothing to demonstrate that appellant’s attempt to show
entrapment was impinged by the trial court’s correct ruling as to D-5. Further, there is
nothing in the record to indicate that, even had D-5 been admitted, appellant would
have made a prima facie case for entrapment. See id. Accordingly, appellant’s second
issue is overruled.
Conclusion
Having overruled appellant’s issues, we affirm the trial court’s judgments.
Mackey K. Hancock
Justice
Do not publish.
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