Eric Christian Bernal v. State

NUMBER 13-03-332-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ERIC CHRISTIAN BERNAL, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 156th District Court of Live Oak County, Texas. MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Garza Appellant, Eric Christian Bernal, appeals his conviction for delivery of a controlled substance. Before pleading no-contest to the charge, appellant filed a motion to dismiss based on entrapment, which was denied. In the first of his two issues before this Court, appellant contends that the denial of his motion to dismiss constitutes reversible error. In his second issue, appellant asserts that his punishment, five years’ confinement and a fine of $1,000, is unconstitutional because it is disproportionate to the seriousness of the offense of which he was convicted. Because we conclude that appellant’s first issue is without merit and that his second issue was not preserved for appellate review, we affirm the trial court’s judgment. 1. Entrapment In his first issue, appellant contends that his indictment should have been dismissed because he was illegally entrapped. On appeal, the issue of entrapment centers on the legal sufficiency of the evidence. Torres v. State, 980 S.W.2d 873, 875 (Tex. App.—San Antonio 1998, no pet.); see Campbell v. State, 832 S.W.2d 128, 130 (Tex. App.—Corpus Christi 1992, pet. ref’d). The sufficiency of the evidence turns on whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found against the defendant on the issue of entrapment beyond a reasonable doubt. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); see also Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (explaining that evidentiary sufficiency is measured against the elements of the offense as defined by the hypothetically correct jury charge for the case). Entrapment is a defense to prosecution. Tex. Penal Code Ann. § 8.06(a) (Vernon 2003); State v. Taylor, 886 S.W.2d 262, 265 (Tex. Crim. App. 1994). To establish entrapment, an accused must produce evidence that he “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.” Tex. Pen. Code Ann. § 8.06(a) (Vernon 2003). Once the defendant produces evidence to raise the defense of entrapment, the State has the burden to disprove entrapment beyond a reasonable doubt. Taylor, 886 S.W.2d at 265. When conflicting evidence exists on the issue of entrapment, the trial court does not err in overruling a motion to dismiss. See Cook v. State, 646 S.W.2d 952, 952 (Tex. Crim. App. 1983). The trial court, as the trier of fact, must weigh the evidence and determine whether the defendant was entrapped as a matter of law. Taylor, 886 S.W.2d at 265. In the light most favorable to the verdict, the record demonstrates the following facts. Dina Cisneros, an undercover narcotics investigator with the Central South Texas Narcotics Task Force, met with appellant and a confidential informant at a city park. Cisneros asked appellant to supply her with cocaine. According to Cisneros, appellant did not have cocaine on him at the time, but the threesome agreed to meet up later when appellant would have cocaine to sell. That same day, Cisneros and the informant met appellant at appellant’s residence, at which time, appellant sold the cocaine to Cisneros. Appellant was subsequently arrested. After reviewing these facts, we conclude that the trial court did not err by denying appellant’s motion to dismiss the indictment. A rational trier of fact could have found against appellant on the issue of entrapment. The test for entrapment is a two-prong test comprised of subjective and objective elements. England v. State, 887 S.W.2d 902, 913 (Tex. Crim. App. 1994). The first prong of the test is subjective: the accused must show that he or she was in fact induced by law enforcement to engage in the illegal conduct. Id. The second prong of the test is objective: the accused must show that the conduct that induced him or her to act would have induced an ordinary person. Id. Appellant’s motion to dismiss was properly denied because he provided the court with no evidence to establish the second prong: that an ordinary person would have been induced by the police officer’s conduct. Under the objective standard, prohibited police conduct usually includes, but is not limited to, matters such as extreme pleas of desperate illness in drug cases, 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—rather than the ready, willing, and anxious person—to commit the offense. Campbell v. State, 832 S.W.2d 128, 130 (Tex. App.—Corpus Christi 1992, pet. ref'd ). At the pretrial hearing, appellant produced no evidence of any such conduct by the State. Instead, appellant argued only that “in his mind, Ms. Cisneros and the confidential informant made numerous contact [sic] with him, either in person, or by telephone, in a [sic] on-going effort to persuade him to sell to them the narcotics.” Absent other factors, however, repeated visits and requests for drugs alone do not constitute entrapment. Saldana v. State, 732 S.W.2d 701, 702 (Tex. App.—Corpus Christi 1987, no pet.). The record shows that appellant was merely given an opportunity to commit the crime; no law enforcement agent used persuasion to cause appellant to commit the offense. In fact, appellant admitted in court that before he was allegedly entrapped, he was already committing a crime by possessing the narcotics. The entrapment statute was enacted to prevent police from manufacturing crimes, not “to provide a ready-made escape hatch for those individuals who engage in criminal enterprise.” Ramos v. State, 632 S.W.2d 688, 691 (Tex. App.—Amarillo 1982, no pet.). A law enforcement agent cannot be deemed to have entrapped a defendant if the agent merely furnished an opportunity for the defendant to commit the offense. Poe v. State, 513 S.W.2d 545, 548 (Tex. Crim. App. 1974). Appellant’s first issue is thus without merit. 2. Disproportionate Punishment Appellant’s second issue is that his punishment, five years’ confinement and $1,000 fine, violates the Eighth and Fourteenth Amendments because it is disproportionate to the seriousness of the offense. Appellant contends that it is within this Court’s power to review an imposed sentence and to determine if the sentence passes constitutional muster. In order for appellant to raise a disproportionate-punishment issue on appeal, he must first raise a timely objection to his sentence at trial. See Tex. R. App. P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). The record in this case indicates that appellant did not raise an objection to his sentence at the time it was announced. His failure to object prevents this Court from reviewing his issue. See Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus Christi 1989, pet. ref’d). Conclusion Appellant’s two issues are overruled. The judgment of the trial court is affirmed. _______________________ DORI CONTRERAS GARZA, Justice Do not publish. Tex.R.App.P. 47.2(b) Memorandum Opinion delivered and filed this the 12th day of August, 2004.