                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00446-CR


FREDRICK TERRY                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION1

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      A jury convicted Appellant Fredrick Terry of delivery of a controlled

substance and assessed his punishment at twenty-two years’ confinement and a

$10,000 fine.   The trial court sentenced him accordingly.       In his sole issue,

Appellant contends that the evidence is insufficient to support the jury’s rejection

of his entrapment defense. Because we hold that the evidence is sufficient to



      1
       See Tex. R. App. P. 47.4.
support the verdict, including the jury’s rejection of Appellant’s entrapment

defense, we affirm the trial court’s judgment.

      After Appellant filed his brief challenging the factual sufficiency of the

evidence supporting the jury’s rejection of his entrapment defense, the Texas

Court of Criminal Appeals held that there is no meaningful distinction between

the legal sufficiency standard and the factual sufficiency standard and that the

Jackson standard is the ―only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a

criminal offense that the State is required to prove beyond a reasonable doubt.‖2

Accordingly, we review Appellant’s complaint under the Jackson standard.

      A defendant has the initial burden of producing a prima facie case of

entrapment.3    Once evidence is produced, the burden shifts to the State to

disprove the defense beyond a reasonable doubt.4 This burden of persuasion

does not require the State to produce evidence to refute the entrapment claim,

but requires only that it prove its case beyond a reasonable doubt. 5 Normally, as



      2
       Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling
Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)); see also
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
      3
       Hernandez v. State, 161 S.W.3d 491, 497 (Tex. Crim. App. 2005).
      4
       Id. at 498.
      5
        See id. (stating that in the burden-shifting context, entrapment behaves
like self-defense); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).


                                         2
well as in this case, entrapment is a jury issue because its resolution depends

mainly on weighing and assessing the credibility of the evidence.6

      The jury is the sole judge of the weight and credibility of the evidence. 7

The jury is free to accept or reject all or any portion of a witness’s testimony.8 A

jury's guilty verdict is an implicit finding rejecting the defense.9

      In reviewing a jury's rejection of an entrapment defense, we examine all

the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt and also could have found against the defendant on

the issue of entrapment beyond a reasonable doubt.10

      Section 8.06 of the penal code 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 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.

      (b) In this section ―law enforcement agent‖ includes personnel of the
      state and local law enforcement agencies as well as of the United

      6
       Hernandez, 161 S.W.3d at 498.
      7
       Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 2075 (2009).
      8
       Hernandez, 161 S.W.3d at 500.
      9
       Saxton, 804 S.W.2d at 914.
      10
       Hernandez, 161 S.W.3d at 500; see Saxton, 804 S.W.2d at 914; see also
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.


                                            3
      States and any person acting in accordance with instructions from
      such agents.11

      The Texas Court of Criminal Appeals has held that this statute contains a

mixed objective and subjective test.12      It ―requires an accused who claims

entrapment to produce evidence that he was actually induced to commit the

charged offense; that is to say, that he committed the offense because he was

induced to do so.‖13 After ―inducement is shown, the issue becomes whether the

persuasion was such as to cause an ordinarily law-abiding person of average

resistance nevertheless to commit the offense.‖14

      Officer Karl King of the Wichita Falls Police Department, an undercover

narcotics investigator for the organized crime unit, testified that Angela Gilmore

contacted him voluntarily to report that Appellant had a quantity of oxycodone to

sell. King stated that Gilmore had told him that she had sold drugs for Appellant

in the past. Before this contact, King had never met, spoken to, or heard of

Appellant. King testified that he never directed anyone to talk to or to set up

Appellant, nor, to King’s knowledge, had anyone in the police department done

so.




      11
       Tex. Pen. Code Ann. § 8.06 (Vernon 2003).
      12
       England v. State, 887 S.W.2d 902, 913 (Tex. Crim. App. 1994).
      13
       Id. (internal quotation marks omitted).
      14
       Id. at 914.


                                        4
        King testified that Gilmore volunteered to set up a buy bust with Appellant;

he gave her no instructions about how to set up the transaction. He stated that

he did not ask her to persuade or induce Appellant to sell him the pills. King

testified that when Gilmore approached him, she had a pending theft charge and

wanted her ―time reduced.‖ King told her that he would ―talk to the DA about it.‖

King testified that Gilmore got ―[n]othing that [he knew] of‖ for setting up the

transaction. King stated that he never promised her anything, never secured a

promise from anyone at the DA’s office that her time would be reduced or the

charges dismissed, and never told Gilmore anything of the kind. He admitted

that after the buy bust occurred, he ―let the DA know what she had done for [the

police].‖

        Regarding the buy bust, King explained that he had told Gilmore that he

wanted to buy a hundred pills. She had told him that they would cost in the

ballpark of $20 apiece. King testified that on the same day that he first spoke to

Gilmore, he arrived in an undercover vehicle at a convenience store parking lot in

Wichita Falls, the place chosen by Gilmore, at 1:00 p.m., the time chosen by

Gilmore. King wore an audio wire. Gilmore and Appellant arrived in a blue

Chevy truck. They got into King’s vehicle, with Appellant in the front passenger

seat.

        Appellant told King that there had been a miscommunication and that he

had only fifty pills, which he would sell to King for $1,000. Appellant told King

that he could get the remaining fifty pills the next day or the day thereafter. After


                                          5
Appellant let King see the pills, King gave the signal to officers monitoring the

transaction. Appellant, King, and Gilmore were all handcuffed so that Appellant

would not realize that Gilmore had informed on him or that King was a police

officer. After Appellant’s arrest, the police found 173 oxycodone tablets in a

bottle in his truck. They found numerous empty oxycodone pill bottles in his

home, and King testified that Appellant’s wife told King that she knew that

Appellant sold oxycodone to help pay the bills. Appellant’s wife denied telling

King that. The trial court admitted an audio recording of the buy bust without

objection.

         King testified that he (1) believed that Appellant freely and voluntarily

entered into the transaction, (2) did nothing to induce or persuade Appellant to

give him the pills, and (3) did not ask Gilmore to induce Appellant to give him the

pills.   King further testified that he had done nothing that would cause an

ordinarily law-abiding citizen to commit a crime and that Appellant seemed ready,

willing, and able, even predisposed, to commit the crime.

         Officer Joseph Anderson and Lieutenant Sam Coltrain, other officers

involved in the buy bust, testified. Anderson stated that he did nothing to get

Gilmore to induce or persuade Appellant to sell drugs to King; Coltrain testified

that he did not direct anyone to communicate with Appellant.

         Appellant testified that he and Gilmore were good friends and that Gilmore

told him that she would go to jail if she did not get $2,000. Appellant testified that

he told her that he did not have it and that she told him that he could get it by


                                          6
selling 100 pills at $20 apiece to someone she knew. Appellant testified that that

was the only reason that he sold King his pills.

       Gilmore denied Appellant’s version of events; she testified that she had

told Appellant, for whom she had been selling pills on a routine basis for years,

that she ―had a friend to hook him up with to start selling his pills to.‖ She further

testified that he had asked her to introduce him to potential buyers after she let

him know that she was not going to sell pills for him anymore.

       Gilmore testified that during her time of working for Appellant, he would

bring the pills to her house, she would sell them, and then he would pick up his

profits from her. She was paid in pills and money. These meetings between

Gilmore and Appellant occurred every two or three days. She testified that he

even called her the day after her release from a stint in state jail so that she could

start selling his pills again.

       Gilmore testified that she decided to stop selling pills for Appellant because

of a rumor that the police were watching her house—she did not want to be

charged with delivery again. She volunteered to inform on Appellant because

she wanted to stop taking the pills and stop selling them and also because she

hoped that she would get a more favorable deal on her theft charge then

pending.    (By the time of trial, Gilmore had four additional shoplifting cases

pending.) She testified that King had told her only that he would tell the DA

about her help. She did not know whether he had ever done so.




                                          7
      Gilmore further testified that she believed that the buy bust took place the

day after she and King first spoke and that no one induced her to set up

Appellant.

      Based on all the evidence, the jury, as sole judge of the credibility of the

witnesses, could have found beyond a reasonable doubt that Appellant

committed the offense (which he did not deny) and could have also disbelieved

his testimony that he committed this offense only to keep his good friend Gilmore

out of jail. We therefore hold that the evidence is sufficient to support the jury’s

verdict, including its rejection of Appellant’s entrapment defense.

      We overrule Appellant’s sole issue and affirm the trial court’s judgment.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 31, 2011




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