Tavares Jerome Akins v. State ( 2006 )

                NO. 12-05-00207-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TAVARES JEROME AKINS,          §          APPEAL FROM THE 241ST

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §          SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant Tavares Jerome Akins was convicted for possession with intent to deliver a controlled substance and sentenced to twelve years of imprisonment.  In his sole issue, Appellant challenges the legal sufficiency of the trial court’s order denying Appellant’s motion to dismiss.  We affirm.

Background

            Appellant was indicted for possession with intent to deliver a controlled substance, a first degree felony.¹  He moved for a pretrial hearing on entrapment as a defense.  In his motion, Appellant requested that the charge be dismissed. The trial court granted a pretrial hearing on the entrapment issue.  Two hearings were held on October 15 and October 21, 2004 to consider the motion.

            At the first hearing, Special Agent Robert Zafra, a criminal investigator for the Drug Enforcement Agency, testified that he met with a confidential source (CS) at a Western Union office in Dallas, Texas on April 1, 2004.  While he was talking on his cell phone, he saw the CS approach Appellant outside the Western Union office.  Appellant and the CS talked as they stood by Appellant’s vehicle. When Zafra approached them, the CS explained in Spanish to Zafra that Appellant was looking for a source for drugs. The CS introduced Zafra as his cousin from Mexico, stating that Zafra could only speak Spanish.  Although bilingual, Zafra asked the CS in Spanish what Appellant wanted.  Appellant and the CS discussed marijuana and cocaine and exchanged telephone numbers. After receiving several phone calls from Appellant, the CS arranged to deliver one kilogram of cocaine to Appellant for a price of $16,000.00.

            Appellant introduced into evidence three tape recordings of conversations between Appellant and the CS.  After receiving several phone calls from Appellant, the CS recorded their conversation of April 7, 2004.  The trial court listened to the recording of that phone conversation.  On the recording, Appellant said, “I am ugly right now, I need some help.”  The CS reminded  Appellant that Zafra was in Mexico for two weeks and said that he did not want to “do the deal” until Zafra returned.  Zafra recorded several other conversations between the CS and Appellant, occurring on April 14 and April 15, 2004.  The trial court listened to these recordings as well.  On the second tape, recorded on April 14, the CS told Appellant that he and Zafra would be in Tyler around 7:00 p.m.  Appellant asked about buying marijuana instead of cocaine as they had previously discussed.  The CS said that he could get Appellant whatever he wanted, but he thought they had been talking about a “mile” of “snow.”²  Appellant then said he might want only “half a mile.”  The CS said he could do that, but the price would be $10,000.00 for half. Appellant decided he would rather go forward with their original arrangement – $16,000.00 for one kilogram of cocaine.  The third cassette tape had several conversations recorded on April 15.  Each of those conversations concerned logistics such as directions to the hotel where the parties were meeting, the description of their respective vehicles, and anticipated arrival times.

            At the second hearing, the CS testified that he had never met Appellant prior to meeting him at the Western Union office in Dallas.  While Zafra was talking on his cell phone, the CS approached Appellant outside the Western Union office and told him he had a “nice ride.” The car had very nice rims, which from the CS’s experience were often associated with drug dealers.  He

asked Appellant how much money he would take for his car. Appellant responded by asking, “Can you get me some elbows?”  The CS interpreted “elbows” as being blocks of marijuana weighing one pound.  The CS responded that he could provide marijuana or cocaine.  When discussing the price for a kilogram of cocaine, the CS told Appellant that he could get it to him for “16 ” as opposed to Appellant’s other source who provided it for “17 and a half.”³

            At this time, Zafra finished his phone conversation and approached the CS and Appellant.  It was then that the CS introduced Zafra as his cousin.  After telling Zafra in Spanish about the “deal,” the CS acted as if Zafra was not happy with him for setting the price at $16,000.00.  The CS  and Appellant exchanged phone numbers.

            Appellant phoned the CS between 8:00 p.m. and 9:00 p.m. later that day and asked for a sample of the cocaine.  The CS called Appellant back later that night and explained he could not  meet him for a couple of weeks because his “cousin” was going to be out of town until then. 

            Approximately one week later, Appellant again phoned the CS, saying “he was hurting, it was urgent, that he needed some stuff as quick as possible.” The CS asked to call Appellant back. After installing the recording device to his phone, the CS called Appellant back and taped the conversation. The second tape contained a recording of a conversation that occurred the day before the “actual deal happened.”

            The CS and Zafra arranged to meet Appellant the next day, April 15, at a Tyler hotel.  The CS met Appellant in the parking lot.  Appellant gave the CS a bag of money, at which time they walked into the hotel room where they counted the money.⁴  The CS, Zafra, and Appellant then walked back to the parking lot to retrieve the drugs. It was at this time that the officers arrested Appellant.  In response to questioning by Appellant’s counsel, the CS denied telling Appellant that his wife was about to give birth or that he “really needed the deal to go through.”

            At the conclusion of the second hearing, the trial court denied Appellant’s motion to dismiss.  On February 7, 2005, Appellant entered an open plea of  “guilty.”  The trial court accepted Appellant’s plea, ordered a presentence investigation, and reset the case for punishment.  On March 11, 2005, the court held a punishment hearing and then assessed imprisonment for life.  This appeal followed.

Sufficiency of the Evidence

            In his sole issue, Appellant contends he established entrapment as a matter of law at pretrial and the State failed to meet its burden of overcoming the defense; accordingly, the trial court erred when it did not dismiss the case. 

Standard of Review and Applicable Law

            When asked to review a pretrial order, we consider only the evidence produced at the hearing on that motion because the ruling in issue was not based on trial evidence.  Hardesty v. State, 667 S.W.2d 130, 133 (Tex. Crim. App. 1984). When reviewing a trial court’s denial of a pretrial motion asserting entrapment as a matter of law, the appellate court focuses on the legal sufficiency of the evidence.  Torres v. State, 980 S.W.2d 873, 875 (Tex. App.–San Antonio 1998, no pet.).  We address the legal sufficiency by viewing the evidence in the light most favorable to the prosecution.  Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992).  We determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and could have found against the appellant on the defense issue beyond a reasonable doubt.  Id. This review must take into account that “the trier of fact . . . not the appellate court . . . was free to accept or reject all or any portion of any witness’s testimony.”  Id.

            Under Texas law, entrapment is a defense to prosecution. Tex. Pen. Code Ann. § 8.06 (Vernon  2003).  A defendant is entitled to a pretrial determination of a claim of entrapment.  Tex. Code Crim. Proc. Ann. art. 28.01 (Vernon 1989).  The defendant has the burden to produce evidence of an inducement that was likely to cause persons not willing to commit the crime to engage in the charged conduct.  State v. Pena, 824 S.W.2d 223, 224 (Tex. App.–Waco 1992, pet. ref’d). If the criminal intent originates in the mind of the agent, and the agent then induces the accused to commit the offense, entrapment exists.  Torres, 980 S.W.2d at 875.  Entrapment does not exist where the agent simply furnishes the opportunity for the commission of the crime.  Id.; Reese v. State, 877 S.W.2d 328, 333 (Tex. Crim. App. 1994).

            The entrapment test under section 8.06 comprises both subjective and objective elements.  England v. State, 887 S.W.2d 902, 913 (Tex. Crim. App. 1994).  First, the defendant must show that he was, in fact, induced by law enforcement to engage in the illegal conduct (subjective test).  Id.  Second, the defendant must show that the conduct that induced him to act would have induced an ordinary person (objective test).  Id.  Without evidence of inducement, the issue of entrapment is not raised.  Pena, 824 S.W.2d at 224. 

            In the pretrial hearing context, a defendant is entitled to dismissal of the charges under section 8.06 “only when he can establish entrapment as a matter of law with conflict-free, uncontradicted, uncontested, or undisputed evidence.”  Hernandez v. State, 161 S.W.3d 491, 499 (Tex. Crim. App. 2005).  If the facts concerning entrapment are in dispute, there cannot be entrapment as a matter of law determined at the pretrial stage. Id.  The defendant must establish beyond a reasonable doubt that he was entrapped.  Id.  The State need only to raise a fact issue that a jury would be required to resolve at the pretrial stage.  Id.  When an entrapment defense is presented in either the pretrial or trial context, the factfinder is authorized “to weigh the evidence and draw a conclusion” as to whether the evidence establishes entrapment as a matter of law.  Id. at 500.  The trial court does not err in overruling a motion to dismiss when the trial judge, as the sole trier of fact, does not believe testimony, even when it is not directly contradicted.  Id.

Application of Law to Facts

            At the pretrial evidentiary hearings, the trial court heard testimony that the CS approached Appellant at a public parking lot and admired Appellant’s car.  Appellant asked the CS about buying drugs, and the CS told him he could get him marijuana or cocaine.  Appellant phoned the CS several times to set up the transaction.

            Appellant specifically asserts that he was entrapped because the CS pressured him into the deal by telling him that his pregnant wife was nearly due and that “he really needed the deal to go through.” The second audio cassette tape reveals that the CS told Appellant that his wife was two months pregnant. Appellant mentioned he might want to buy marijuana instead and then that he might want to buy only half of the amount of cocaine previously discussed.  Based on Appellant’s reaction to the proportionately higher price for the smaller amount of cocaine, the CS told Appellant that his job was to make money, and that if he did not make money, Zafra would fire him. 

            The testimony from Zafra and the CS did not provide evidence of inducement.  The CS’s comments concerning his pregnant wife and his comment that he would be fired if he did not make money cannot be considered an inducement.  The CS quoted Appellant a more attractive price than Appellant’s other source offered for cocaine – 8.5% less – and arranged to deliver the cocaine to Tyler.  No urgent pleas were used to induce Appellant’s actions.  Further, an 8.5% discount cannot be considered a valuable incentive.  The testimony fails to show that a person with reasonable resistance would be induced to commit the crime; instead, it only shows that an opportunity to commit the offense was given to Appellant. Without inducement, entrapment is not raised.  Pena, 824 S.W.2d at 224.  Additionally, the uncontroverted  evidence shows that Appellant broached the subject of buying drugs to the CS and that he was eager to pursue a “buy.”  Based upon our review of the record and viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found against Appellant on the entrapment defense.  Appellant’s sole issue is overruled.

Disposition                                             

            Having overruled Appellant’s sole issue, the trial court’s judgment is affirmed.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered June 30, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

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     ¹ See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003).

² A “mile” is a kilogram, and “snow” is cocaine.

³ The CS said he initiated contact with Appellant on his own impulse and denied that Zafra or any other law officer directed him in that action.  The CS also set the price at $16,000.00 without consulting Zafra.

⁴ Remnants of cocaine were also in the bag.