Henri Shawn Keeton A/K/A Shawn H. Kieth v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-243-CR
HENRI SHAWN KEETON APPELLANT
A/K/A SHAWN H. KIETH
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Henri Shawn Keeton appeals his conviction for unauthorized use
of a vehicle. In one point, Keeton contends that the trial court erred by failing
to instruct the jury on the defense of entrapment. We will affirm.
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… See T EX. R. A PP. P. 47.4.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
In March 2007, at approximately 10:00 a.m., the Fort Worth police
department parked a “bait vehicle” on a curb in a high-crime area of the city.
Detective Joe Harder, who leads the auto theft task force in Fort Worth,
testified at Keeton’s trial that bait cars are vehicles, including both cars and
pickup trucks, that the police have specially equipped with a GPS device,
infrared lights, and cameras that record people in the vehicle. The cars are set
to alert the police department silently when a door, trunk lid, or tool box
(depending on the make of the bait car) is opened. When someone gets into
a bait car and drives it, the police are able to track the vehicle via the GPS
device. One of the infrared lights, which allows the video-recording cameras
to pick up a picture even at night, is angled toward the driver’s seat and is
activated when a door is opened. The detective testified that the police
essentially park the bait car, walk away, and do not touch the vehicle until
someone has triggered one of the silent alarms, at which point the police use
the GPS device to track the vehicle and arrest the person illegally driving it.
The bait car in this case was actually a pickup truck. It was left
unlocked, with the windows partially rolled down, and the ignition keys lying
on the console. Approximately twelve hours after the pickup truck was parked,
the vehicle’s silent alarm alerted the police that one of the doors had opened
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and closed immediately. The truck did not become mobile, so Detective Harder
decided to wait before moving in on it. Almost two hours later, at 11:41 p.m.,
the detective received an alert from the truck’s silent alarm that the truck had
become mobile.
At that point, Detective Harder coordinated with officers in the field and,
using the GPS tracking device, told the officers the direction in which the truck
was moving. One of those field agents, Officer Willingham, testified at
Keeton’s trial that, based on Detective Harder’s instructions, he and another
officer located the truck, pulled it over, and discovered Keeton in the driver’s
seat. Detective Harder additionally testified that he arrived on the scene shortly
after Keeton was stopped, pulled the videotape from the truck’s camera,
watched that video in his patrol car, and saw on the video Keeton driving the
truck. The video showing Keeton driving the truck was admitted into evidence
and played for the jury.
At the conclusion of the trial, the jury deadlocked on whether Keeton had
committed theft, which was the first charge against Keeton in the indictment,
but found Keeton guilty of unauthorized use of a vehicle, which was the second
charge in the indictment. At the punishment phase of the trial, Keeton pleaded
true to previously being convicted of two state jail felony offenses. The jury
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accordingly sentenced Keeton to ten years’ incarceration, and the trial court
entered a judgment consistent with the jury’s finding. Keeton now appeals.
III. E NTRAPMENT
A. Jury Charge on a Defensive Theory
A charge on a defensive issue is required if the accused presents
affirmative evidence that would constitute a defense to the crime charged and
a jury charge is properly requested. Miller v. State, 815 S.W.2d 582, 585
(Tex. Crim. App. 1991); Barnes v. State, 70 S.W.3d 294, 304 (Tex. App.—Fort
Worth 2002, pet. ref’d). In determining whether evidence raises a defense, the
credibility of the evidence is not at issue. Muniz v. State, 851 S.W.2d 238,
254 (Tex. Crim. App.), cert. denied, 510 U.S. 837 (1993); Barnes, 70 S.W.3d
at 304. In other words, if a defendant produces evidence raising each element
of a requested defensive instruction, that defendant is entitled to the instruction
regardless of the source and strength of the evidence. Hamel v. State, 916
S.W.2d 491, 493 (Tex. Crim. App. 1996); Barnes, 70 S.W.3d at 304.
Unlike legal challenges to the sufficiency of the evidence, we review the
evidence offered in support of the defensive theory in the light most favorable
to the defense. Barnes, 70 S.W.3d at 304; Brazelton v. State, 947 S.W.2d
644, 646 (Tex. App.—Fort Worth 1997, no pet.). Appellate review of error in
a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726,
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731 (Tex. Crim. App. 1994). Initially, we must determine whether error
occurred. If so, we must then evaluate whether sufficient harm resulted from
the error to require reversal. Id. at 731-32.
Error in the charge, if timely objected to in the trial court, requires reversal
if the error was “calculated to injure the rights of [the] defendant,” which
means no more than that there must be some harm to the accused from the
error. T EX. C ODE C RIM. P ROC. A NN. art. 36.19 (Vernon 2006); see also Abdnor,
871 S.W.2d at 731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985) (op. on reh’g). In other words, a properly preserved error will
require reversal as long as the error is not harmless. Almanza, 686 S.W.2d at
171. In making this determination, “the actual degree of harm must be assayed
in light of the entire jury charge, the state of the evidence, including the
contested issues and weight of probative evidence, the argument of counsel
and any other relevant information revealed by the record of the trial as a
whole.” Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App.
2000).
B. Jury Charge on Entrapment
Texas Penal Code section 8.06(a) establishes,
It is a defense to prosecution that the actor engaged in the
conduct charged because he was induced to do so by a law
enforcement agent using persuasion or other means likely to cause
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persons to commit the offense. Conduct merely affording a person
an opportunity to commit an offense does not constitute
entrapment.
T EX. P ENAL C ODE A NN. § 8.06(a) (Vernon 2003). Thus, entrapment is a
defensive theory. See T EX. P ENAL C ODE A NN. § 2.03(c),(d) (Vernon 2003). If
evidence supporting the defense of entrapment is admitted, the issue must be
submitted to the jury with the instruction that a reasonable doubt on the issue
requires acquittal. Id. § 2.03(d).
Entrapment exists if the criminal intent originates in the mind of the police
agent and the agent then induces the accused to commit the offense. Barnes,
70 S.W.3d at 304; Torres v. State, 980 S.W.2d 873, 875 (Tex. App.—San
Antonio 1998, no pet.). Conversely, entrapment does not exist where the
police agent merely furnishes the opportunity for the commission of the
offense. T EX. P ENAL C ODE A NN. § 8.06(a).
The test for entrapment under section 8.06 is a two-pronged test
composed of subjective and objective elements. England v. State, 887 S.W.2d
902, 910 (Tex. Crim. App. 1994); McGann v. State, 30 S.W.3d 540, 545
(Tex. App.—Fort Worth 2000, pet. ref’d). For the subjective element, the
accused must show that he was induced by law enforcement to engage in the
illegal conduct. England, 887 S.W.2d at 913. The accused who claims
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entrapment must therefore produce evidence that the police actually and in fact
induced him into committing the charged offense. Id.
Once the subjective element of inducement is shown, the accused must
additionally demonstrate how he meets the objective element of section 8.06.
Id. at 914. For this second element, the accused must show that the
persuasion used by the police was such as to cause an ordinarily law abiding
person of average resistance to nevertheless commit the offense. Id. The
amount of persuasion that it takes to meet this test will vary from case to case,
but examples of conduct that may meet this test include pleas based on
extreme need, sympathy, or close personal friendship; offers of inordinate sums
of money; and extreme pleas of need due to desperate illness. Guia v. State,
220 S.W.3d 197, 204 (Tex. App.—Dallas 2007, pet. ref’d); Campbell v. State,
832 S.W.2d 128, 130 (Tex. App.—Corpus Christi 1992, pet. ref’d); Becerra v.
State, No. 05-99-00412-CR, 2000 WL 124683, at *2 (Tex. App.—Dallas, Feb.
3, 2000, pet. ref’d) (not designated for publication).
IV. K EETON’S E NTRAPMENT C LAIM
In his sole point, Keeton argues that the trial court erred by failing to
instruct the jury on the defense of entrapment. At trial, only two police officers
testified; Keeton did not testify or offer any other supporting testimony. The
testimony of the officers was that they had no interaction at all with Keeton
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until after he was pulled over for driving the pickup truck. Keeton did not
present any evidence whatsoever showing the subjective impact on him of the
officers’ leaving the bait car so situated.2
Based on this record, therefore, Keeton did not offer any evidence to
meet the first element of section 8.06—that the officers in fact induced him
into driving the car. See T EX. P ENAL C ODE A NN. § 8.06(a); Gomez v. State, No.
14-00-01023-CR, 2002 WL 480206, at *5 (Tex. App.—Houston [14th Dist.]
Mar. 28, 2002, pet. ref’d) (not designated for publication) (holding that
inducement was not established where the defendant did not testify and none
of the officers testified about the specifics of the conversations they had with
the defendant); Becerra, 2000 WL 124683, at *2 (holding that where the
defendant did not testify and there was no other testimony as to why she
committed the crime, inducement was not established); Hill v. State, No. C14-
92-01005-CR, 1994 WL 268187, at *3 (Tex. App.—Houston [14th Dist.] June
16, 1994, no pet.) (not designated for publication) (holding that a jury charge
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… In fact, through the questions of Keeton’s attorney on cross-
examination of the officers and through the attorney’s statements in closing
arguments, Keeton appeared to posit that someone had opened the door at
10:00 p.m., removed the keys, and given them to Keeton under the guise of
ownership (i.e., someone told Keeton that he or she owned the truck and gave
Keeton the keys and permission to drive it). In this extremely broad reading of
the record, therefore, the only evidence adduced indicated that Keeton was
claiming that someone else, not the police, induced him into driving the vehicle.
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on entrapment was not required where the defendant presented no affirmative
evidence establishing that he was induced into committing the crime).
Furthermore, Keeton presented no evidence establishing the second,
objective test prong of section 8.06. See T EX. P ENAL C ODE A NN. § 8.06.
Keeton did elicit testimony that the police left the bait car with the windows
partially down, the doors unlocked, and the keys lying on the console. But he
did not present any evidence or elicit any further testimony indicating any
persuasion from the police or otherwise showing that an ordinary, law abiding
person of average resistance would steal a car just because it may have been
an easy target. See England, 887 S.W.2d at 914. The evidence presented
demonstrated that the police merely afforded Keeton the opportunity to steal
the pickup truck, not that the officers in any way entrapped Keeton. See T EX.
P ENAL C ODE A NN. § 8.06(a); England, 887 S.W.2d at 914.
Because Keeton did not present any evidence that would meet either the
subjective or objective prongs of section 8.06, he was not entitled to a jury
charge on the defense of entrapment, and the trial court did not err by denying
his request for such an instruction. See T EX. P ENAL C ODE A NN. § 2.03(c); Miller,
815 S.W.2d at 585. Accordingly, we overrule Keeton’s sole point.
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Va. C ONCLUSION
Having overruled Keeton’s sole point, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL F: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: March 20, 2008
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