England v. State

MALONEY, Judge,

dissenting.

A jury convicted appellant of delivery of LSD to his coworker, a police informant. The evidence at trial established that the police paid the informant money for every successful drug deal. The evidence further established that the informant harassed appellant about obtaining drugs for him so much that appellant quit his job. The harassment continued, however, for over two months culminating in the instant offense. During the three weeks preceding this offense, the informant repeatedly called appellant leaving as many as fifteen messages a day on his answering machine. Although appellant did not return the telephone calls, he ultimately agreed to a drug deal because, according to his testimony, he was afraid the informant would notify his mother, with whom he lived, and because he wanted the informant to leave him alone. The evidence also established that appellant was eighteen years old at the time of the instant offense and the informant was twenty-eight. Evidence that the offense occurred on the first of June 1990 was admitted. The trial court admitted evidence of two prior sales of LSD occurring in February or March of 1990 by appellant to the same informant to rebut appellant’s entrapment defense. See Maj. op. at 905-906; England v. State, 856 S.W.2d 544, 544-45 (Tex.App.—Houston [1st Dist.] 1993).

The court of appeals reversed, holding that the trial court erred when it admitted evi-denee of the two prior sales of LSD. England, 856 S.W.2d at 546. The court reasoned that the entrapment defense set forth in section 8.06 of the Texas Penal Code was based upon an objective standard predicated only on the nature of the police conduct, not the accused’s predisposition to commit the crime. Id. at 545. However, one justice stated that extraneous transactions between the accused and the same informant were admissible to show the context in which the offense occurred. Id. at 546 (Wilson, J., dissenting).

This Court granted the State’s petition for discretionary review to determine whether “other crimes, wrongs, or acts” are admissible to rebut an entrapment defense. See Tex.R.Crim.Evid. 404(b). Today, the majority holds for the first time that entrapment involves a mixed subjective/objective standard, maj. op. at 910, 913, and that evidence of “other crimes, wrongs, or acts” is admissible to rebut the subjective part of the entrapment defense, but not the objective part. Id. at 915. Because the legislature intended that our entrapment defense consist of a purely objective standard, I respectfully dissent.

I.

In the seminal cases of Sorrells1 and Sherman2, five members of the Supreme Court perceived that a subjective standard should be utilized, that a defendant’s predisposition was relevant to an entrapment defense, and that the Government could introduce evidence that a defendant had committed other crimes implying that the police did not in fact induce him to commit the charged crime. The concurrences of Justice Roberts in Sor-rells and Justice Frankfurter in Sherman espoused an objective standard of entrapment focusing solely upon the police conduct. *917In their view, a defendant’s predisposition to commit a crime was totally irrelevant to an entrapment defense.

In 1973, the Supreme Court held that a defendant’s lack of predisposition to commit a crime was the principal element of an entrapment defense. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In separate opinions, Justices Douglas and Stewart dissented adhering to the objective approach of the Sorrells and Sherman concurrences. The next year, while enacting a new penal code, our legislature rejected the subjective standard espoused by the Supreme Court majority, and, reacting to Russell, adopted a purely objective standard with the enactment of section 8.06 of the Texas Penal Code.

Section 8.06(a) provides:

(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[3] 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). On its face, section 8.06(a) provides that an accused is the victim of entrapment if he commits an offense because the police used “means likely to cause persons to commit the offense.” In other words, if the police conduct is such that a hypothetical person (not necessarily the accused) would commit the crime, then the accused has an entrapment defense; provided, of course, that the accused did not commit the crime merely because the police conduct afforded a hypothetical person (again not necessarily the accused) an opportunity to commit the crime.4 E.g., Rodriguez v. State, 662 S.W.2d 352, 355 (Tex.Crim.App. 1984); Johnson v. State, 650 S.W.2d 784, 788 (Tex.Crim.App.1983).

The practice commentary to section 8.06 makes it clear that an objective standard was intended:

With few exceptions police methods of detecting crime are invisible, unconfined, unstructured, and unchecked. Some crime detection involves the encouragement or promotion of criminal conduct, occasionally by methods calculated to induce even the innocent to commit a crime.
* * * * ⅜
If the causation or inducement element is decided in defendant’s favor, Subsection (a) focuses on the nature of the inducement methods. This second standard changes the focus of the entrapment defense, as previously recognized, which looked at the defendant’s criminal proclivities. The defendant’s predisposition to commit the crime and, for purposes of the entrapment defense, his prior criminal record are immaterial. Rather, Section 8.06 focuses on whether, objectively considered, the inducement methods used are likely to induce one with innocent intentions to commit the crime. If the inducement attains that intensity, a determination of whether the defendant would have committed the crime with less or no encouragement ordinarily involves unsatisfactory and highly prejudicial (to the defendant) evidence, and thus has been rejected as an element of entrapment by this section.

Seth S. Searcy III & James R. Patterson, Practice Commentary, Tex.Penal Code Ann. § 8.06 (Vernon 1974) (emphasis added); see also Tex.Prop.Penal Code § 8.05 committee comment (Final Draft 1970). The committee comment to section 8.05 is virtually identical to the practice commentary in the adopted penal code.

*918Whereas the subjective standard focuses upon the accused’s criminal propensities, the objective standard is solely concerned with the propriety of police conduct. As Chief Justice Warren wrote for the majority in Sherman:

The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.

Sherman, 356 U.S. at 372, 78 S.Ct. at 820.5 When police act in such a manner as to cause an accused to commit a crime, the police are no longer acting in accordance with their duty; ironically, they themselves are guilty of the offense for which they arrest the accused.6 The fact that the police entrapped a citizen into committing a crime

does not make him any more innocent or any less predisposed than he would be if he had been induced, provoked, or tempted by a private person — which, of course, would not entitle him to cry “entrapment.” Since the only difference between these situations is the identity of the temptor [sic], it follows that the significant focus must be on the conduct of the government agents, and not on the predisposition of the defendant.

Russell, 411 U.S. at 442, 93 S.Ct. at 1648 (Stewart, J., dissenting) (emphasis added).

Justice Frankfurter observed in his concurring opinion in Sherman:

a test that looks to the character and predisposition of the defendant rather than the conduct of the police loses sight of the underlying reason for the defense of entrapment. No matter what the defendant’s past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society.
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Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition.
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The possibility that no matter what his past crimes and general disposition the defendant might not have committed the particular crime unless confronted with inordinate inducements, must not be ignored. Past crimes do not forever outlaw the criminal and open him to police practices, aimed at securing his repeated conviction, from which the ordinary citizen is protected. The whole ameliorative hopes of modem penology and prison administration strongly counsel against such a view.

Sherman, 356 U.S. at 382-83, 78 S.Ct. at 826 (Frankfurter, J., concurring) (emphasis added). Evidence of a defendant’s other crimes (here prior drug sales) is not relevant. Evidence of other crimes shows only character conformity which is prohibited by Tex. R.Crim.Evid. 404(b) and Montgomery v. *919State, 810 S.W.2d 372 (Tex.Crim.App.1991) (op. on reh’g).7 The accused’s predisposition to commit an offense as evidenced by other crimes is therefore irrelevant to an entrapment defense under section 8.06.

II.

Neither the State nor the dissent below advocate any kind of subjective standard for entrapment, mixed or otherwise.8 Indeed, in its petition for discretionary review, the State concedes “[i]t is, of course, well established that the Legislature codified the ‘objective’ standard for entrapment when it adopted Tex.Penal Code Ann. § 8.06 (1974).” State’s PDR at 4 (citations omitted); see also State’s Brief at 3. The State, nevertheless, argues in its brief here that evidence of “other crimes, wrongs, or acts” is admissible to show the context of the offense;9 an argument the majority here correctly rejects. Maj. op. at 915.

The majority, however, announces that (1) our entrapment defense is a mixed standard including both subjective and objective elements, id. at 910, 913, and (2) evidence of “other crimes, wrongs, or acts” is relevant and admissible to show appellant was not subjectively induced into committing the instant crime. Id. at 915. The majority reaches its holding by determining that the “inducement” language in our entrapment statute is ambiguous, especially when compared to the “inducement” language in the 1970 proposed penal code. Id. at 910-912. The majority then reviews other jurisdictions and determines that a plain reading of our entrapment statute indicates that it is a mixed standard. Id. at 913. The majority’s reasoning, however, does not follow this Court’s recognized rules regarding statutory interpretation. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App.1991).

When this Court is called upon to determine legislative intent, we focus upon the statute’s literal text and give effect to its plain meaning. Id. at 785. It is only when the plain meaning of the statute would lead to absurd results or is unclear and ambiguous that we consider “extra textual factors.” Id. (emphasis in original). Otherwise, we would “invade the lawmaking province of the Legislature.” Id. at 786. As previously mentioned, a plain reading of section 8.06(a) makes it clear that our legislature intended an objective standard for entrapment. Therefore, the majority’s review of such “ex-tratextual” sources as the 1970 proposed penal code or entrapment statutes from other states is unwarranted.

The majority seems to justify such a review because it finds that the word “induced” as used in section 8.06(a) is “ambiguous.” See id. at 910-911. According to the majority, the word “induce” means “to lead on; move by persuasion or influence,” but the ambiguity lies in whether the action must be successful or just a mere attempt. Id. at 910. While the word “induce” may be ambiguous in other contexts, it certainly is not here.

Under section 8.06(a), an accused is said to have been induced to commit a crime if police use “persuasion or other means likely to cause persons to commit the offense.” A plain reading of the statute shows an entrapment defense will lie if the police conduct is likely to cause a hypothetical person to commit a crime. The statute is not concerned whether the accused himself was actually induced. Thus, the word “induced” as it is used in section 8.06(a) is not ambiguous.

Nevertheless, the majority looks to “extra-textual” sources and compares section 8.06(a) to the 1970 proposed penal code. Id. at OH-912. The majority finds it significant that *920the proposed penal code provided an entrapment defense if the police induced the commission of the offense; whereas, section 8.06(a) provides an entrapment defense if the actor committed the offense because he was induced by the police. Id. at 911. Arguably, the reason for the change in language is because the language in the proposed penal code did not provide an object of the police conduct.10

The majority, however, suggests the legislature chose to

resolve the ambiguity in the word “induce” definitively in favor of an understanding, in keeping with its preferred usage in ordinary English, that it means to actually persuade or influence, not simply to engage in conduct that has as its purpose to persuade or influence ...

Id. at 912. As stated previously, a literal reading of section 8.06(a), as well as the practice commentary to that section, provide otherwise. Entrapment occurs when police use “means likely to cause,” but not necessarily causing, a hypothetical person, not necessarily the defendant, to commit the offense. Tex. Penal Code Ann. § 8.06(a). If the legislature had wanted to provide as the majority suggests, it would have explicitly provided that entrapment occurs when the police use means that actually cause the defendant to commit the crime.

Because the practice commentary to section 8.06(a) explicitly states that it is an objective standard, this change in language should be construed as nothing more than a change in writing style on the legislature’s part. See Texas Law Review Manual on Style 2:6 (7th ed.1992) (use of active voice is preferred over passive voice); see also Reed Dickerson, Fundamentals of Legal Drafting § 8.18 (2d ed.1986); Henry Weihofen, Legal Writing Style 97-99, 111-12 (West 2d ed.1980).

The majority’s proposed mixed standard is really a subjective standard. An objective standard, as the majority acknowledges, does not permit evidence of other crimes to rebut an entrapment defense. Maj. op. at 913-915. However, the majority maintains that “[i]n every case” the State should be permitted to introduce evidence of a defendant’s- other crimes to rebut the subjective element of his entrapment defense. Id. at 909, 915. If this is true, what difference does it make whether the police conduct would induce the hypothetical person? This so-called mixed standard essentially renders the objective element meaningless. This is particularly vexatious since the majority would permit, not only evidence of other crimes between the defendant and the same law enforcement agent, as argued by the State and the dissent below, but evidence of crimes involving the defendant and others as well. Id. at 909.

The majority cites several cases from other states interpreting their respective entrapment statutes. Id. at 912-913. However, because our legislature has explicitly provided that Texas has a purely objective standard of entrapment, those cases are not persuasive.

Regardless of whether one thinks the majority’s proposed mixed standard is, perhaps, more palatable than a purely objective standard, the fact remains the legislature intended the entrapment defense to be an objective standard. It is not our job to change that. See Boykin, 818 S.W.2d at 785 (“our state constitution assigns the lawmaking function to the Legislature ...”) (emphasis in original); cf. Alvarado v. State, 853 S.W.2d 17, 28 (Tex.Crim.App.1993) (Maloney, J., dissenting) (only legislature can create exceptions to Tex.Code Crim.Proc.Ann. art. 38.23).

I would affirm the judgment of the court of appeals; because the majority does not, I respectfully dissent.

MILLER, BAIRD and OVERSTREET, JJ., join this opinion.

. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

. A " '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. Penal Code Ann. § 8.06(b). The informant in this case was clearly acting as a "law enforcement agent” within the meaning of subsection (b).

. Subsection (a) permits undercover police work; however, if the police do more than afford a hypothetical person the opportunity to commit a crime, the police have entrapped the defendant.

. In Sorrells, Chief Justice Hughes acknowledged:

The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to [sic] and create crime for the sole purpose of prosecuting and punishing it.

Sorrells, 287 U.S. at 444, 53 S.Ct. at 213 (quoting Butts v. United States, 273 F. 35, 38 (8th Cir.1921)).

Justice Stewart has observed: “It is the Government's duty to prevent crime, not to promote it.” Russell, 411 U.S. at 449, 93 S.Ct. at 1651 (Stewart, J., dissenting).

. Justice Rehnquist has stated that:

[i]f the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies ... in prosecuting the police under the applicable provisions of state or federal law.

Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (citations omitted). However, the successful prosecution of police officers who entrap a citizen is a fiction unlikely to become reality.

. It is interesting that the author of the majority opinion, who is also Montgomery’s author, would interpret section 8.06 to permit such a result.

. The majority incorrectly characterizes the State's argument and the dissent below as advo-eating a mixed standard for entrapment. Maj. op. at 909, 910.

. See Rogers v. State, 853 S.W.2d 29 (Tex.Crim.App.1993).

. Section 8.05(a) of the proposed penal code provided: “It is a defense to prosecution that a peace officer, or a person directed by a peace officer, induced the commission of an offense-’’ Tex.Prop. Penal Code § 8.05(a) (Final Draft 1970). Under a literal reading of that section, the peace officer did not have to induce anyone to commit a crime.