Garcia, Fidencio Feliberto v. The State of Texas--Appeal from 177th District Court of Harris County

Affirmed and Memorandum Opinion filed March 6, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00408-CR

____________

FIDENCIO FELIBERTO GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris  County, Texas

Trial Court Cause No. 873,424

M E M O R A N D U M O P I N I O N

In his sole issue on appeal, appellant Fidencio Feliberto Garcia claims the trial court erred in denying his motion to dismiss for entrapment. We affirm.

Appellant made arrangements to sell marijuana to Stafford Fontenot, a police informant, on April 3, 2001. At the direction of Deputy Phillip Askew of the Harris County Sheriff=s Department, Fontenot asked appellant to bring the marijuana to Fontenot=s business. Once there, Fontenot asked appellant to follow him to Fontenot=s residence, which permitted another deputy to follow appellant. On the way, the police stopped appellant for a traffic violation, and a search of appellant=s car revealed the marijuana.

Appellant was charged with possession of marijuana in an amount that was less than two thousand pounds but more than fifty pounds. See Tex. Health & Safety Code Ann. ' 481.121 (Vernon Supp. 2003). Appellant filed a motion to dismiss on the defense of entrapment, on which the trial court conducted a pretrial hearing pursuant to article 28.01, section 1(9) of the Code of Criminal Procedure. See Tex. Pen. Code Ann. '8.06 (Vernon 1994); Tex. Code Crim. Proc. Ann. art. 28.01, '1(9) (Vernon 1989). The trial court denied appellant=s motion, and appellant pleaded no contest. Appellant was then sentenced to eight years=deferred adjudication, fined $500, and ordered to perform 300 hours of community service.

Appellant claims the trial court erred in denying his motion to dismiss. As the trier of fact, the trial court is authorized to weigh the evidence and from the circumstances draw a legal conclusion as to whether appellant was entrapped. See Taylor v. State, 886 S.W.2d 262, 265 (Tex. Crim. App. 1994). In reviewing the trial court=s ruling, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found against appellant on the issue of entrapment beyond a reasonable doubt. See Flores v. State, 84 S.W.3d 675, 681 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).

The only evidence supporting appellant=s claim of entrapment is appellant=s own testimony. Appellant claims that because Fontenot did not testify at the hearing, appellant=s version of events is conclusive. However, as the sole trier of fact and judge of credibility, the trial court was free to disbelieve all of appellant=s testimony, even if uncontroverted. See State v. Ross, 32 S.W.3d 853, 857 (Tex. Crim. App. 2000).[1] In addition, Deputy Askew testified, without objection, that, according to Fontenot, appellant had been Atrying to push some marijuana@ on Fontenot prior to April 3. The trial court was entitled to weigh this evidence against appellant=s claim that he was induced into possessing the marijuana. See England v. State, 887 S.W.2d 902, 913 (Tex. Crim. App. 1994) (holding that the entrapment defense contains a subjective componentCthat the accused was actually induced to commit the charged offenseCas well as an objective component). We conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant had not been entrapped. Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed March 6, 2003.

Panel consists of Justices Hudson, Frost, and Guzman.

Do Not Publish CTex. R. App. P. 47.2(b).

[1] We recognize the Court of Criminal Appeals has held that when an appellant moves to suppress a confession on the grounds it was not voluntarily given, the confession is inadmissible as a matter of law if the appellant=s testimony is undisputed. See Farr v. State, 519 S.W.2d 876, 879B80 (Tex. Crim. App. 1975). Because this case does not involve a motion to suppress an allegedly involuntary confession, Farr does not apply. Even if it did, both the State and appellant attempted ,without success, to locate Fontenot. Because the State presented a reasonable explanation for Fontenot=s failure to testify, the trial court was free to disbelieve appellant=s testimony, even under Farr. See Sherman v. State, 532 S.W.2d 634, 636 n.2 (Tex. Crim. App. 1976).