JOSE VINCENTE GARZA, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE AND REMAND; Opinion filed August 27, 1998
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-96-00711-CR
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JOSE VINCENTE GARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F94-40814-HM
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O P I N I O N
Before Justices Wright, Bridges, and Roach
Opinion By Justice Bridges
        Jose Vincente Garza appeals his conviction for delivery of two hundred pounds or less but more than fifty pounds of marijuana. After finding appellant guilty, the jury assessed an eight-year sentence. On appeal, appellant contends the trial court unreasonably restricted his voir dire examination, submitted an improper charge on his defense of entrapment, erred in refusing to give appellant's proposed defensive instructions, and erred in refusing to disclose certain Dallas Police Department records. Appellant also argues that the evidence is factually insufficient to support the jury's finding that he was not entrapped and that this court must reverse even if appellant does not show harm because portions of the record are unavailable through no fault of appellant. For the reasons set forth below, we reverse the trial court's judgment and remand this case for further proceedings.
FACTUAL BACKGROUND
        In 1992, Evaristo Sandoval was arrested when he sold marijuana and cocaine to James Moses, an undercover detective with the narcotics division of the Dallas police department. Moses met with Sandoval and offered him a recommendation of probation in his pending cases in exchange for his work as a confidential informant. Moses and Sandoval entered into an agreement that provided Sandoval would "make" seven drug cases for the police within 160 days. If Sandoval completed the agreement, Moses would recommend to the district attorney's office that Sandoval receive probation in his pending drug cases. Sandoval signed an admonishment form providing that he would be working under the supervision of the Dallas police department and requiring that the controlling detective "be informed of and approve of all drug related activities before any action is taken." Sandoval was prohibited from participating in the transfer, sale, or possession of drugs without the express and current permission of the controlling detective or his supervisor.
        Sandoval did not make seven cases within the 160-day period and was still working with Moses in December 1993. Moses testified that, by December, Sandoval had made five cases and Moses was not holding him to the terms of the contract. According to Moses, Sandoval had a strong incentive to make the cases so that Moses would recommend probation.
        In December of 1993, Sandoval traveled to Mission, Texas. Although Sandoval did not have a specific person in mind, he believed he could get a Dallas drug deal set up through someone in Mission. In Mission, Sandoval stayed with Noe Villareal, an old childhood friend. Sandoval admitted that he told Villareal he needed to buy drugs because he was about to lose his house, his wife was desperately ill, and that he needed help because he had been arrested. Villareal initially declined, but eventually agreed to "ask around."         Sandoval decided to contact appellant about finding some drugs. According to Sandoval, he had known appellant for ten years and their fathers had been friends. Appellant refused to help Sandoval. After Sandoval returned to Dallas, he made several telephone calls to appellant. Although Sandoval denied pressuring appellant, appellant testified that Sandoval called him almost every other day and told appellant his troubles. Finally, appellant relented and began to ask customers in his convenience store where he might be able to obtain some drugs to sell. Finally, one of appellant's customers agreed to supply him with marijuana. In February 1994, appellant came to Dallas, met with Sandoval and Moses, and arranged the details of the sale. After the sale, appellant returned to Mission, where he was later arrested. In November, 1994, the State dismissed the charges pending against Sandoval. Sandoval was paid $2000 for his cooperation on appellant's case.         At trial, appellant admitted he committed the offense but claimed he was entrapped. Accordingly, the trial court submitted the following jury charge on entrapment:
        Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant committed the offense of delivery of a controlled substance as alleged, but you further believe, or you have a reasonable doubt thereof, that he was induced to do so by Evaristo Sandoval, who was a law enforcement agent, to-wit: an informant acting under specific instructions from police agents to entrap the defendant by persuasion or other means likely to cause persons to commit the offense, and that such conduct of said Evaristo Sandoval did not merely afford the defendant an opportunity to commit the offense, if any, you will find the defendant not guilty. (Emphasis added.)
        Appellant objected to this charge on the ground that it improperly limited his entrapment defense and submitted a requested charge on entrapment. The trial court overruled appellant's objection and denied his requested charge.
ENTRAPMENT
         In his second and third points of error, appellant contends that the entrapment charge given by the trial court improperly limited his entrapment defense to situations in which the police officer specifically instructs the informant to use an improper method or procedure to entrap the accused.
1. Applicable Law
        Entrapment is an affirmative defense to prosecution. Tex. Pen. Code § 8.06 (Vernon 1996). Section 8.06 of the Texas Penal Code defines the defense of entrapment:
    (a)        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 an opportunity to commit an offense does not constitute entrapment.
    (b)        In this section "law enforcement agent" includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.
Tex. Pen. Code § 8.06 (Vernon 1996). The court of criminal appeals has interpreted section 8.06(a) as having objective and subjective components. England v. State, 887 S.W.2d 902, 910-13 (Tex. Crim. App. 1994). To prevail on an entrapment defense, a defendant must raise a reasonable doubt as to whether (1) a hypothetical, law-abiding person of average resistance would have committed the offense given the subject law enforcement officials' conduct, and (2) whether the particular defendant committed the offense because he was induced to do so by the law enforcement officials. Id. at 908, 913. However, entrapment is not raised where the facts indicate only that the criminal design originates in the mind of the accused and the law enforcement officials or their agents merely furnish an opportunity or aid the accused in the commission of the offense. Reese v. State, 877 S.W.2d 328, 333 (Tex. Crim. App. 1994). A defendant is entitled to a jury instruction on entrapment if the evidence introduced at trial raises the entrapment defense. See Rodriguez v. State, 662 S.W.2d 352, 355 (Tex. Crim. App. 1984); Garcia v. State, 528 S.W.2d 604, 605 (Tex. Crim. App. 1975).
        Merely classifying a person as an informant is not enough, by itself, to establish the informant was acting under the instructions of a police officer. See Rangel v. State, 585 S.W.2d 695, 699 (Tex. Crim. App. [Panel Op.] 1979). The informant must be acting on instructions from the police officer. See Tex. Penal Code Ann. § 8.06(b) (Vernon 1994); Saldana v. State, 732 S.W.2d 701, 703 (Tex. App.--Corpus Christi 1987, no pet.). An informant becomes an agent of law enforcement for entrapment purposes when (1) the informant is acting under the specific instructions of the law enforcement official to use an improper procedure to "make a case" against a particular defendant or (2) the informant is under the general control of a law enforcement official and the law enforcement official is exercising control by failing to properly instruct his informant. See id. The general control situation may arise when an informant has been used repeatedly and has become "experienced" in setting up a case. See id. Factors to consider in determining whether general control exists include (1) the number of cases the informant has been involved in and their disposition, if available, (2) the amount and method of compensation, (3) the working relationship between the police officer and the informant, and (4) the informant's contacts with police officers. Rangel, 585 S.W.2d at 699.
        Prohibited police conduct constituting inducement in drug cases includes, but is not limited to, extreme pleas of desperate illness, appeals based primarily on sympathy, pity, or close personal friendship, offers of inordinate sums of money, and other methods of persuasion which are likely to cause an otherwise unwilling person to commit the offense. Campbell v. State, 832 S.W.2d 128, 130 (Tex. App.--Corpus Christi 1992, pet. ref'd).
2. Discussion
        We conclude that the evidence presented at trial raised the defense of entrapment. Including the instant case, the informant Sandoval worked on five cases. The police department paid Sandoval two thousand dollars for his participation in this case. Sandoval, not Moses, chose to target the Mission area. For these reasons, we conclude that Sandoval acted under the general control of Moses.
        However, a showing that an informant was acting under the general control of the police will not suffice to raise the issue of entrapment. See Rangel, 585 S.W.2d at 699. The evidence must raise the possibility that appellant was coerced. See England, 887 S.W.2d at 913; Rodriguez, 662 S.W.2d at 355. In this case, appellant and Villareal testified that Sandoval came to Mission and told his friends that his wife was desperately ill and that he could not pay the hospital bills. He was afraid that he would lose his house. Sandoval begged his friends to help him find someone who could set up a drug deal to help him make some money. These desperate pleas could constitute inducement if the jury believed appellant's version of events. Because evidence was presented that could allow the jury to conclude that appellant was coerced, the issue of entrapment was raised. See id. Thus, appellant was entitled to a jury charge on the defense of entrapment.
        The jury charge in this case instructed the jury to find appellant not guilty if it found that informant was specifically instructed by law enforcement to entrap appellant. This improperly limits the entrapment defense by omitting the situation in which there is no specific instruction but the informant is still acting under the general control of law enforcement. Therefore, the charge improperly applied entrapment law to the facts of this case.
 
HARM
        Having found error, we now proceed to a harm analysis. Because appellant timely objected to the entrapment charge, we may reverse if the record demonstrates some harm to appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). 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 the weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Id. at 171.
        In this case, the only disputed issue was whether or not informant entrapped appellant. By limiting the entrapment charge to the issue of whether Sandoval was specifically instructed to entrap appellant, the court limited the defense of entrapment provided by the penal code and supported by the evidence in this case, and therefore the circumstances under which appellant could have been acquitted. Thus, the record shows appellant suffered some harm as a result of the charge error. See id. Accordingly, we sustain appellant's second and third points of error. Because of our disposition of appellant's second and third points of error, we need not address appellant's first, fourth, fifth, sixth, and seventh points of error.
        We reverse the trial court's judgment and remand this case for further proceedings.
        
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
960711F.U05