DELROY DAVID CHUNG, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed October 18, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01290-CR
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DELROY DAVID CHUNG, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F88-86962-J
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O P I N I O N
Before Justices Howell, Rowe and Kinkeade
Opinion Per Curiam
        Delroy David Chung was convicted in a jury trial of unlawful delivery of a controlled substance, to-wit: cocaine. Punishment was assessed at forty years' confinement and a $10,000 fine. Appellant raises two points of error, claiming that (1) he was entitled to a jury charge on entrapment, and (2) the State's jury argument was improper. We overrule both points and affirm the judgment of the trial court.
        Appellant first claims that his commission of the offense in the present cause was "enticed, error amounting to entrapment." As a result, he argues, he was entitled to an instruction to the jury on entrapment. However, the record reflects that appellant did not object to the jury charge, nor request an instruction on entrapment. As a result, appellant is entitled to reversal only if he can show that the court erred in failing to instruct the jury, and that he suffered egregious harm from the court's omission. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1965). The record reflects that on August 20, 1988, two undercover officers from the Dallas Police Department approached appellant and asked him if he knew where they could "score some rock". Appellant said, "Yes, I have a twenty [a quantity of rock cocaine costing twenty dollars]." Appellant then went to his car and returned with the cocaine, which he gave to the officers. Appellant now claims that he was induced to commit the offense of delivery of a controlled substance by the officers.
        Article 8.06(a) of the Texas Penal Code provides as follows:
    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 persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
Tex. Penal Code Ann. § 8.06(a) (Vernon 1974) (emphasis added). If criminal design or intent originates in the mind of a law enforcement officer and a person is induced to commit a crime, which that person would not otherwise have committed, entrapment exists. Haywood v. State, 482 S.W.2d 855, 857 (Tex. Crim. App. 1972).
        In the present cause, appellant was approached by police officers and asked about availability of cocaine. Appellant then went to his car, obtained cocaine, and delivered it to the officers. There is nothing in the record to show that police did more than merely afford appellant the opportunity to commit the offense. Compare Bush v. State, 611 S.W.2d 428, 432 (Tex. Crim. App. 1981) (on rehearing) (appellant not entrapped into delivering methamphetamine by police agent who offered to "get him high" if he delivered methamphetamine) See also Lee v. State, 766 S.W.2d 375, 376 (Tex. App.--Texarkana 1989, no pet.). We hold that appellant failed to show that he was entrapped by police. As a result, we conclude that appellant was not entitled to a jury instruction on entrapment. Appellant's first point of error is overruled.
        In his second point of error, appellant complains of the following argument by the State, made during the punishment phase of the trial:
            Well, what else do we know? Seven different people came in here and told you that based upon their knowledge of him, and we are not talking about just the last day or two, but over a year to year-and-a-half for those people, and that is the time he has been in Dallas. Their knowledge of him over that period of time indicates that his reputation for being a peaceful law abiding citizen is bad. Now, I couldn't get into the basis of their knowledge because it's not legal for me to do that. These are not people that sat back in some room and huddled. Don't you know if that--
 
    [objection from defense counsel]
 
    [STATE]: It's a fair inference from the record -- it's common sense if they had gotten back in some room, and huddled, and said, okay, let's all say this is his reputation, he would have brought that out.
 
    [objection from defense counsel]
 
    [STATE]: Judge, that is in direct response to what he said, and I'm arguing if that had been the case, he could have proven that, and he would have. That is -- that is in direct response to what he said.
        The trial court then overruled appellant's objection. The record also reflects that prior to the State's argument, appellant made the following argument about the State's reputation witnesses:
            Put it another way, I would put twelve police officers in a room, and I would say, well, have you heard that he did such and such? At that point, all of them would have heard it, and they could legitimately come into court and say, we heard here that his reputation was bad. I don't want to quantify it, but I don't think that the fact that the parades of rumormongers can come up here should be forwarded to much weight. That is hearsay, admissible hearsay, but that is all it is.
Appellant now claims, as he claimed at trial, that the State argued outside the record, and its argument served to bolster the credibility of the State's reputation witnesses.
        There are four areas of permissible jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). An accused may not complain of argument which he provokes. Singleton v. State, 171 Tex. Crim. 196, 346 S.W.2d 328, 331, cert. denied, 368 U.S. 867 (1961); Smith v. State, 635 S.W.2d 591, 593 (Tex. App.--Dallas 1982, no pet.).
        In the present cause, appellant implied that the reputation testimony presented by the State may have been "staged". At this point, the State was entitled to respond that if it had been "staged", defense counsel could have investigated to determine how the witnesses learned of appellant's reputation in the community. As such, we conclude that the argument of the State was a permissible response to argument of defense counsel. Compare Pierron v. State, 475 S.W.2d 775, 776 (Tex. Crim. App. 1972) (argument that appellant had more to lose than police witnesses permissible when defense counsel implied witnesses would lie because they want to be thought of as successful in their jobs). Appellant's second point of error is overruled.
        The judgment of the trial court is affirmed.
                                                  PER CURIAM
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
881290OF.U05
 
 
 
 
File Date[10-18-89]
File Name[881290OF]