Affirmed and Memorandum Opinion filed May 1, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00431-CR
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ANDREW JAMES FAUGHN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 823,225
M E M O R A N D U M O P I N I O N
Appellant Andrew James Faughn challenges his conviction for the offense of possession of a controlled substance. The jury assessed punishment at five years= confinement and a $1,000 fine. In one issue, appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm.
Factual Background
At the time of the underlying offense, appellant was a sixty-two year old musician and self-admitted recreational user of marijuana and cocaine. He and his friend of several years, Chris Irwin, would buy and sell marijuana from each other for personal use; according to Irwin, they also worked together selling narcotics. Irwin was arrested in 1999 for possession of controlled substances, and testified that in order to obtain probation, he signed a contract agreeing to help the Houston Police Department as an informant to obtain a Abust@ for 2.5 kilograms of cocaine. In an effort to fulfill that contract, Irwin contacted appellant and expressed an interest in purchasing a large amount of cocaine. According to Irwin, appellant readily agreed to arrange the transaction. On the day of the intended transaction, Irwin went to appellant=s house to get a sample of the cocaine, purportedly for approval by his cousin who would then pay Irwin for the entire sale. After leaving appellant=s house with the sample, Irwin signaled the awaiting police who then executed a search warrant and removed a black bag containing 1.5 kilograms of cocaine from a barbeque grill in appellant=s front yard. A smaller amount of cocaine was found in the kitchen and on appellant=s person. Numerous firearms were found in the house. Appellant was arrested and charged with possession with intent to deliver 400 grams or more of cocaine. In a written statement, appellant confessed that he allowed an acquaintance, Miguel, to use his scale to measure out cocaine and temporarily store the black bag of cocaine in return for an ounce of cocaine. Appellant stated he put the black bag of cocaine in the barbeque grill after Miguel left because having that amount of cocaine in the house made him nervous.
At trial, appellant testified to a different version of the events. According to appellant, he initially refused to help Irwin, but after continuous phone calls from Irwin in which he stated that he needed help because his lawn-care business was in financial distress, his girlfriend was ill, and he was losing his house, appellant agreed to introduce Irwin to Miguel, his cocaine source. He stated that on the day of the arrest, Miguel brought a large amount of cocaine to appellant=s house. Appellant purchased an ounce of it, but told Miguel he could not keep the remainder at the house. Appellant testified Miguel physically and verbally threatened him not to interfere with his business, and left after stashing the cocaine inside the barbeque grill. Appellant maintained that the sample he later gave Irwin was from the ounce he purchased from Miguel. Appellant further testified had Irwin not pressured him, he never would have committed this offense.
The trial court denied appellant=s pretrial motions to suppress and to set aside the indictment for entrapment. The jury charge included an instruction on the defense of entrapment. Appellant was found guilty of the lesser included offense of possession of a controlled substance, namely cocaine, weighing less than 200 grams. In his sole issue, appellant challenges the legal and factual sufficiency of the evidence to support the conviction due to the defense of entrapment.
Analysis
Penal Code section 8.06 provides:
(a) It is a defense to prosecution[1] 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. Pen. Code Ann. ' 8.06.
To establish entrapment, a defendant must establish that (1) he was actually induced to commit the offense; and (2) the inducement Awas such as to cause an ordinary law-abiding person of average resistence nevertheless to commit the offense.@ England v. State, 887 S.W.2d 902, 913B14 (Tex. Crim. App. 1994). The first prong is a subjective test, requiring the defendant to show that because of the law enforcement agent=s persuasion he was induced to act; the second prong is an objective test, requiring proof that the persuasion was likely to cause an otherwise unwilling person C rather than the ready, willing and anxious person C to commit an offense. Flores v. State, 84 S.W.3d 675, 682 (Tex App.CHouston [1st Dist.] 2002, pet. ref=d). As to the latter, prohibited law enforcement agent conduct usually includes, but is not limited to, such matters as extreme pleas of desperate illness, or those primarily based on sympathy, pity, or close personal friendship, or offers of inordinate sums of money. Id. Once a defendant has presented such evidence, the State must disprove the defense beyond a reasonable doubt. Liggins v. State, 979 S.W.2d 56, 60 (Tex. App.CWaco 1998, pet. ref=d).
Defenses such as entrapment are subject to a sufficiency review. Id. A legal sufficiency review calls upon the reviewing court to view the relevant 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 reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). When a defendant challenges factual sufficiency of a guilt finding, the appellate court asks whether a neutral review of all the evidence demonstrates that the proof of guilt is so weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).
Until recently, however, the law was unclear as to what standard of review applies to factual challenges of defenses and affirmative defenses in light of Johnson and Goodman. The Texas Court of Criminal Appeals has now provided certainty. In Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003), the court noted the effective differences between an Aaffirmative defense@ under section 2.04 of the Texas Penal Code and a Adefense@ under section 2.03. In reviewing a rejected affirmative defense as raised in a defendant=s appeal, the reviewing court is to determine whether the finding against the affirmative defense was so against the great weight and preponderance of the evidence as to be clearly wrong. Id. However, with a defense (such as entrapment), the burdens at trial alternate between the defense and the State and require a different standard of review. The court concluded that when a defendant challenges the factual sufficiency of the rejection of a defense, the appellate court must review all of the evidence in a neutral light and ask whether the State=s evidence when taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Id.
Here, the jury was instructed as to the defense of entrapment and by finding appellant guilty, impliedly rejected the defense. See id. As required under Zuliani, we review all of the evidence in a neutral light and ask whether the State=s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. In conducting our review, we are mindful that the jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We remain cognizant of the jury=s role and unique position, one that we as a reviewing court cannot occupy. Johnson, 23 S.W.3d at 9. Our authority to disagree with the jury=s determination is appropriate only when the record clearly indicates such action is necessary to avoid a manifest injustice. Otherwise, due deference must be accorded the jury=s determinations, particularly those concerning the weight and credibility of the evidence. Id.
In appellant=s case, it was undisputed that appellant was in possession of cocaine; the dispute arises over whether such possession was due to entrapment. The jury heard testimony from the police officers, and the conflicting testimony of Irwin and appellant himself. It also reviewed appellant=s written statement, in which he set forth a version of the events inconsistent with his trial testimony. The jury reconciled these conflicts and determined the weight and credibility to be given the evidence as a whole, and found against appellant. Following our review of the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found the essential elements of the offense, and against entrapment, beyond a reasonable doubt. After reviewing the evidence in a neutral light, we find that the State=s evidence taken alone is not too weak to support the finding or that the proof of guilt, although adequate if taken alone, is not so against the great weight and preponderance of the evidence as to be clearly wrong. The evidence is legally and factually sufficient, and appellant=s issue on appeal is overruled.
Nevertheless, appellant argues the jury obviously agreed with the entrapment defense because it found him guilty of the lesser included offense of possession instead of possession with intent to deliver, thereby effectively rejecting the State=s attempt to hold him responsible for the larger quantity of cocaine. As a result, argues appellant, the smaller amount of cocaine found on appellant=s person constituted Afruit of the poisonous tree@ and should not have been admitted in evidence. We reject this argument, because appellant failed to object to introduction of the cocaine at trial and thus waived any argument regarding its admissibility on appeal. See Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992). We further reject this argument because the entrapment defense was not limited to the charge of possession with intent to deliver. That the jury found appellant guilty of the lesser included offense does not mean it found in favor of the entrapment defense on the greater offense. Lastly, to the degree that appellant=s complaints encompass matters raised and rejected in his pretrial motion to suppress, these matters are waived because no issue has been raised on appeal regarding the trial court=s denial of the motion.
Conclusion
We find the evidence legally and factually sufficient to support the judgment, and affirm the judgment.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed May 1, 2003.
Panel consists of Justices Anderson, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] This language establishes entrapment as a Adefense@ under section 2.03 of the Texas Penal Code, as opposed to an Aaffirmative defense@ under section 2.04. The State in its brief refers to entrapment as an affirmative defense.