Johnny Lakeith Suell v. State

                                                NO. 12-07-00193-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHNNY LAKEITH SUELL,          §                      APPEAL FROM THE 123RD

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      SHELBY COUNTY, TEXAS

MEMORANDUM OPINION

            Johnny Lakeith Suell appeals his conviction for delivery of a controlled substance.  In one issue he argues that his conviction must be reversed because he was entrapped.  We affirm.            Entrapment is an affirmative defense and is established if a defendant can persuade¹

 the finder of fact that he was induced to commit the offense by a law enforcement agent using persuasion or other means likely to cause a person to commit the offense.  Tex. Penal Code Ann. § 8.06(a) (Vernon Supp. 2007).  However, a defendant must either object to the court’s charge that does not contain an instruction on the defense or make a specific request for an instruction on the matter to preserve appellate review of issues relating to an affirmative defense.  See Robert v. State, 613 S.W.2d 291, 293 (Tex. Crim. App. 1981); Scranton v. State, No. 14-98-00308-CR, 2000 Tex. App. LEXIS 3750, *8–9 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (mem. op., not designated for publication) (“Appellant did not request a jury instruction on the issue, and he cannot raise entrapment for the first time on appeal.”); cf. Donnell v. State, 148 S.W.3d 674, 676 (Tex. App. Beaumont 2004, no pet.) (Insanity defense may not be interposed for the first time on appeal) (citing Tex. R. App. P. 33.1); see also Rogers v. State, 105 S.W.3d 630, 639–40 (Tex. Crim. App. 2003) (“To preserve possible error for appellate review, the defendant must sufficiently identify the defensive theory for which he seeks an instruction.”).

            In this case, Appellant did not present an entrapment defense.  He did not object to the jury charge, which did not contain instructions on the law of entrapment.  He did not request a jury instruction on the issue of entrapment.  Therefore, he may not complain for the first time on appeal that the State failed to negate the affirmative defense.² We overrule Appellant’s sole issue.

Disposition

            Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.

                                                                                                   JAMES T. WORTHEN   

                                                                                                               Chief Justice

Opinion delivered March 31, 2008.

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

(DO NOT PUBLISH)

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¹ Under Texas law, when a defendant raises the defense of entrapment at trial, he has the burden of producing evidence to establish every element of that defense. He 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.  Hernandez v. State, 161 S.W.3d 491, 497–98 (Tex. Crim. App. 2005).  Once the defense makes a prima facie showing of each element, the State then has the burden of persuasion to disprove entrapment beyond a reasonable doubt.  Id.

² Another way to analyze Appellant’s argument is as an attack on the sufficiency of the evidence.  Thus repackaged, Appellant’s argument is that the State failed its burden of persuasion with respect to his entrapment defense. However, since Appellant did not raise the defense of entrapment in the trial court, and therefore did not present a prima facie case, the State was not required to carry a burden of persuasion on the issue.