Bruce Alan Garand v. State

Opinion filed December 31, 2020
In The
Eleventh Court of Appeals
__________
No. 11-19-00043-CR
__________
BRUCE ALAN GARAND, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CR50471
MEMORANDUM OPINION
The jury convicted Bruce Alan Garand of online solicitation of a minor. The
trial court assessed his punishment at confinement for a term of five years in the
Institutional Division of the Texas Department of Criminal Justice. Appellant
challenges the conviction in three issues. We modify and affirm.
Background Facts
Christopher Lee Estrada is a special agent for the Texas Department of Public
Safety assigned to “internet crimes against children and human trafficking.” He
participates in sting operations throughout the state as a part of his work. He
participated in a sting in Midland in July 2017. Agent Estrada testified that
advertisements were placed on Craigslist.com that would typically read “I’m bored
today. . . . [H]ere’s my number. Shoot me a text.” The advertisements would say
that the person posting it was eighteen and made no reference to sex. Law
enforcement agents then communicated with the individuals responding to the
advertisement by text messages.
Agent Estrada testified that Appellant began responding to one of the
advertisements. Appellant and law enforcement agents posing as a fourteen-year-
old girl communicated over the course of three days by text messages. A transcript
of the text messages was offered into evidence, and Agent Estrada testified to the
contents of the text messages. The text messages revealed that, early in the
communications, agents stated that the girl that they were posing as was “almost 15”
and that her name was “Crystal.”
Prior to learning the purported age of “Crystal,” Appellant discussed having
sex with her, and he continued discussing having sex after being told that she was
“almost 15,” going into explicit details of what he would do with “Crystal.” He also
asked her on more than one occasion if she was a cop, which the agents answered in
the negative. Appellant also sent photographs of his penis and asked for “Crystal’s”
address.
2
Appellant repeatedly asked “Crystal” for a nude photograph because he was
scared that she was a cop. 1 He also discussed coming to her apartment when he got
off work each day for three days in a row. On the third day, Appellant told “Crystal”
that he was “on his way.” “Crystal” told Appellant to bring some strawberry wine
coolers. Agent Estrada testified that officers arrested Appellant shortly thereafter at
the apartment to which “Crystal” had directed him. Appellant had brought
strawberry wine coolers with him as requested by “Crystal.” Officers were able to
confirm from Appellant’s cell phone that he was the person that had been
communicating with “Crystal.”
Analysis
In his first issue, Appellant asserts that his conviction should be set aside
because of entrapment. “Normally, a defense such as entrapment is a question for
the jury to decide because it is determined largely by weighing facts and assessing
credibility.” Hernandez v. State, 161 S.W.3d 491, 498 (Tex. Crim. App. 2005).
Appellant does not complain that the trial court erred by failing to include an
entrapment instruction in the charge. In this regard, Appellant did not request an
entrapment instruction. Appellant appears to be asserting in his first issue that the
evidence established entrapment as a matter of law.
Entrapment is a defense to prosecution if (1) the defendant 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. TEX. PENAL CODE ANN. § 8.06(a) (West 2011);
Bien v. State, 530 S.W.3d 177, 184 (Tex. App.—Eastland 2016), aff’d, 550 S.W.3d
1In response to his requests, officers texted Appellant photographs of a clothed, young female
undercover officer from another state.
3
180 (Tex. Crim. App. 2018). A defendant has the initial burden to produce evidence
that raises the defense of entrapment, but when he does, the burden of persuasion
shifts to the State to disprove the defense beyond a reasonable doubt. Hernandez,
161 S.W.3d at 498; Bien, 530 S.W.3d at 184. Entrapment includes both a subjective
and an objective component: the defendant must show both that he was actually
induced to commit the charged offense and that the persuasion was such as to cause
an ordinarily law-abiding person of average resistance to commit the crime.
England v. State, 887 S.W.2d 902, 913–14 (Tex. Crim. App. 1994); Bien, 530
S.W.3d at 184. “Conduct merely affording a person an opportunity to commit an
offense does not constitute entrapment.” PENAL § 8.06(a); Bien, 530 S.W.3d at 184.
As noted in Hernandez, the defense of entrapment is normally a question for
the jury to decide. 161 S.W.3d at 498. However, a defendant may also attempt in a
pretrial hearing to establish entrapment as a matter of law. Id. Assuming Appellant
can assert entrapment as a matter of law on appeal without asserting it at trial, the
evidence in this case does not establish entrapment as a matter of law.
“The subjective element requires evidence that ‘the accused himself was
actually induced to commit the charged offense by the persuasiveness of the police
conduct.’” Id. at 497 n.11 (quoting England, 887 S.W.2d at 913 n.10)). The
evidence in this case does not show that Appellant was induced by police conduct to
commit the offense of solicitation of a minor. At most, the conduct of the officers
in this case created an opportunity to commit the offense. See Bien, 530 S.W.3d at
184. Appellant was the person who first brought up the possibility of engaging in
sexual conduct with “Crystal,” both before and after he was told by “Crystal” that
she was a minor.
With respect to the objective element, the “persuasion” of the officers in this
case was not such that would cause “an ordinarily law-abiding person of average
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resistance nevertheless to commit the offense.” 2 Hernandez, 161 S.W.3d at 497 n.11
(quoting England, 887 S.W.2d at 914). The officers that communicated with
Appellant did not use any of the prohibited forms of police conduct identified in
Hernandez: “pleas based on extreme need, sympathy, pity, or close personal
friendship, offers of inordinate sums of money, and other methods of persuasion that
are likely to cause the otherwise unwilling person[—]rather than the ready, willing
and anxious person[—]to commit an offense.” Id. Accordingly, we overrule
Appellant’s first issue.
In his second issue, Appellant challenges the sufficiency of the evidence
supporting his conviction. He contends that there was insufficient evidence to
establish that he had the requisite mens rea. Appellant contends that, “at worst, [he]
may have intended to meet with an adult female or ‘fantasized.’” Appellant appears
to also be asserting that he could not be guilty of the offense of online solicitation of
a minor if he had a mistaken belief that he was communicating with a minor. He
also contends that the evidence was insufficient because he “was induced and
entrapped into committing this act.”
We review a challenge to the sufficiency of the evidence under the standard
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
2
DPS Special Agent Michelle Wilson testified that, of the 415 individuals that responded to the
initial Craigslist.com posts, only nine of them continued pursuing the purported minor to the point of being
arrested.
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reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence submitted
at trial, including pieces of evidence that the trial court may have improperly
admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; Clayton, 235 S.W.3d at 788.
We measure the sufficiency of the evidence by the elements of the offense as
defined in a hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is
one that “accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which
the defendant was tried.” Id.As charged in this case, a person commits the offense of online solicitation of
a minor when “the person, over the Internet, by electronic mail or text message or
other electronic message service or system, or through a commercial online service,
knowingly solicits a minor to meet another person, including the actor, with the
intent that the minor will engage in sexual contact, sexual intercourse, or deviate
sexual intercourse with the actor or another person.” PENAL § 33.021(c) (West
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2016). 3 The statute defines “minor” as “(A) an individual who is younger than 17
years of age; or (B) an individual whom the actor believes to be younger than 17
years of age.” Id. § 33.021(a)(1).
The gravamen of the offense under subsection (c) is the knowing solicitation
of a minor to meet a person, with the intent that the minor will engage in some form
of sexual contact with that person. Ganung v. State, 502 S.W.3d 825, 828 (Tex.
App.—Beaumont 2016, no pet.). “The prohibited conduct is the act of ‘soliciting.’”
Ex parte Zavala, 421 S.W.3d 227, 232 (Tex. App.—San Antonio 2013, pet. ref’d).
The crime is completed at the time of the online solicitation, and the requisite intent
arises within the conduct of soliciting. Ganung, 502 S.W.3d at 828 (citing Zavala,
421 S.W.3d at 232).
The indictment alleged that Appellant knowingly solicited Agent Estrada
“online” to meet with the intent that Agent Estrada would engage in sexual contact
with Appellant and that Appellant believed that Agent Estrada was younger than
seventeen at the time. A person acts knowingly, or with knowledge, with respect to
the nature of his conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or that the circumstances exist. PENAL § 6.03(b).
Appellant is essentially challenging the evidence that he solicited “Crystal” to
engage in sexual contact or that he believed that “Crystal” was a minor.
The transcript of the text messages between Appellant and “Crystal” is replete
with references to “Crystal’s” purported age as a minor and Appellant’s desire to
meet with her to engage in sexual contact. Appellant is the person that initiated the
discussion of having sex with “Crystal,” and his discussion of sex continued after
3
Appellant was charged and convicted with committing an offense under Section 33.021(c).
However, the judgment incorrectly lists the offense for which Appellant was convicted as the offense set
out in Section 33.021(b).
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“Crystal” told Appellant that she was “almost 15.” Appellant expressed concern in
the text messages about Crystal’s age, and he repeatedly asked her if she was a police
officer. He also asked her to send a nude photograph because of his concern about
her young age. During a phone call with a female officer posing as “Crystal” prior
to his arrival at the apartment, Appellant also expressed his concern that “Crystal”
was underage.
Agent Estrada and another officer interviewed Appellant upon his entry into
the apartment. The officers told Appellant that “Crystal’s” mother had contacted
them after the mother found her cell phone with the text message exchange between
“Crystal” and Appellant. The State offered a recording of the interview into
evidence. During the interview, Appellant confirmed that he believed that “Crystal”
was fourteen or fifteen and that, if the officers were not there, he would have
probably had sex with “Crystal” despite her being a minor. An officer asked
Appellant if this was some type of fantasy or game on his part, to which Appellant
shook his head “no.”
The evidence offered at trial establishes that Appellant had the requisite mens
rea to commit the offense of online solicitation of minor under Section 33.021(c).
The text messages, the recording of the phone call, and the recorded interview of
Appellant refute his assertions on appeal that he thought he was going to meet with
an adult female or that he was just engaging in fantasy.
Furthermore, Appellant’s assertion of a mistake of fact regarding his belief of
“Crystal’s” age does not defeat the requisite mens rea for committing the offense.
Under the definition of “minor” set out in Section 33.021(a)(1)(B), a person is guilty
of the offense of online solicitation of a minor if he mistakenly believes that the
person that he solicits is younger than seventeen. Thus, the statute effectively
precludes a defense based on a mistake of fact about the other person’s age so long
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as the actor subjectively believed that the person was younger than seventeen. See
PENAL § 8.02(a) (a defendant is only entitled to an instruction for the defense of
mistake of fact if the mistaken belief negates the culpable mental state of the
offense); Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013).
Finally, Appellant challenges the sufficiency of the evidence on the basis of
his allegation of entrapment. However, Appellant did not request an instruction on
the defense of entrapment. Had the trial court included an entrapment instruction,
we would review the jury’s rejection of it by determining if the jury could have found
against Appellant on the entrapment issue beyond a reasonable doubt. See Bien, 530
S.W.3d at 183. For the reasons stated in our disposition of Appellant’s first issue,
the evidence would have permitted the jury to find against Appellant on an
entrapment issue beyond a reasonable doubt. The evidence simply does not show
entrapment under either the subjective or objective elements.
We conclude that the evidence was sufficient to support Appellant’s
conviction for online solicitation of a minor because a rational trier of fact could
have found the elements of the offense beyond a reasonable doubt. We overrule
Appellant’s second issue.
In his third issue, Appellant contends that his trial counsel was ineffective for
failing to request an instruction on entrapment. To establish that counsel rendered
ineffective assistance at trial, Appellant must show that counsel’s representation fell
below an objective standard of reasonableness and that there is a reasonable
probability that the result would have been different but for counsel’s errors.
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland v.
Washington, 466 U.S. 668, 687–88 (1984)). A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial.
Strickland, 466 U.S. at 694. There is a strong presumption that counsel’s conduct
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fell within the wide range of reasonable professional assistance, and the defendant
must overcome the presumption that the challenged action could be considered
sound trial strategy. Id. at 689.
A claim of ineffective assistance of counsel “must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a
claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). Direct appeal is especially inadequate when
counsel’s strategy does not appear in the record. Id. Trial counsel should ordinarily
have an opportunity to explain his actions before an appellate court denounces
counsel’s actions as ineffective. Id. Without this opportunity, an appellate court
should not find deficient performance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Id. (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim App. 2001)).
To determine whether Appellant’s trial counsel was deficient for failing to
seek an instruction on entrapment, we must first consider if Appellant was entitled
to the instruction. See Jones v. State, No. 01-12-00604-CR, 2013 WL 5521958, at
*2 (Tex. App.—Houston [1st Dist.] Oct. 3, 2013, no pet.)(mem. op. (not designated
for publication) (citing Strickland, 466 U.S. at 687). “[W]hen a defendant raises the
defense of entrapment at trial, he has the burden of producing evidence to establish
every element of that defense.” Hernandez, 161 S.W.3d at 497. In this case,
Appellant did not present a prima facie case of an entrapment defense. As we have
previously noted, the evidence does not establish entrapment under either the
subjective or objective elements. Accordingly, Appellant was not entitled to an
entrapment instruction, and his trial counsel was not ineffective for not seeking an
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entrapment instruction. See Jones, 2013 WL 5521958, at *2–4. We overrule
Appellant’s third issue.
This Court’s Ruling
We modify the judgment of the trial court to reflect that Appellant was
convicted of the offense of online solicitation of a minor as specified in
Section 33.021(c). As modified, we affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
December 31, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Wright, S.C.J. 4
Willson, J., not participating.
4
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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