Opinion issued October 3, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-12-00604-CR
                           ———————————
                    DANNY THOMAS JONES, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



            On Appeal from County Criminal Court at Law No. 4
                           Harris County, Texas
                       Trial Court Case No. 1769291



                         MEMORANDUM OPINION

      A jury found appellant, Danny Thomas Jones, guilty of the offense of

prostitution,1 and the trial court assessed his punishment at confinement for four


1
      See TEX. PENAL CODE ANN. § 43.02 (Vernon Supp. 2012).
days and a fine of $1,500. In three issues, appellant contends that he received

ineffective assistance of counsel at trial.

          We modify the trial court’s judgment and affirm as modified.

                                      Background

          Houston Police Department (“HPD”) Vice Division Officer G. Das testified

that on July 14, 2011, as part of an “undercover prostitution operation,” she posed

as a prostitute at an intersection in south Houston. Das wore capri pants, a t-shirt,

and flip flops, which she testified was typical apparel for the area. She also wore a

recording device and carried a cellular telephone. Another officer listened over the

cellular telephone for any conversation Das might have with individuals on the

street.

          Officer Das explained that, as she was walking along the street, she saw

appellant drive a car “very slowly past” her and park beside a convenience store.

Appellant did not leave his car, but “maintained eye contact” with her for “what

seemed like an enormous amount of time.”            Das approached appellant’s car,

pointing at herself. Appellant rolled down his window and said, “No, baby, I don’t

know you.” Das replied, “Oh, okay. I thought you were waiting on me.” Das

walked away, and appellant began to drive away. Moments later, appellant turned

around, parked his car against the curb across from Das, and began staring at her

again.

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      Officer Das then crossed the street, approached appellant’s open window,

and asked, “Who are you looking for?” When appellant stated, “Cynthia,” Das

responded that she had not seen her. Appellant then asked Das if she was a police

officer, and she replied that she was not. Appellant asked her to “come ride with

[him] then.”    The recording of appellant’s conversation with Das, which was

admitted into evidence and played for the jury, reveals that appellant asked Das

four times to get into his car. Das declined, but told appellant, “I’ve got a room.”

He then asked, “How much are we talking about?” Das testified that she offered to

engage in a “half-and-half,” which is “a street term” referring “to both oral sex and

straight sexual intercourse.” When appellant said, “I want both,” Das replied,

“Can you go fifteen [dollars]?” The recording and testimony reflect that appellant

replied, “Yeah, come on.” Appellant then told Das that he needed to go to a bank,

and she told him that she would wait for him. Appellant drove to a nearby bank,

where police officers arrested him.

                               Standard of Review

      To prove a claim for ineffective assistance of counsel, appellant must show

that (1) his counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Lopez

                                         3
v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). A reasonable probability is

a “probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance, we look to

the totality of the representation to determine the effectiveness of counsel,

indulging a strong presumption that his performance falls within the wide range of

reasonable professional assistance or trial strategy. See Robertson v. State, 187

S.W.3d 475, 482–83 (Tex. Crim. App. 2006).           Appellant has the burden to

establish both prongs by a preponderance of the evidence. Jackson v. State, 973

S.W.2d 954, 956 (Tex. Crim. App. 1998). “An appellant’s failure to satisfy one

prong of the Strickland test negates a court’s need to consider the other prong.”

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

      Furthermore, allegations of ineffectiveness must be firmly founded in the

record. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). When the

record is silent, we may not speculate to find trial counsel ineffective. See Garcia

v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Gamble v. State, 916 S.W.2d

92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In the absence of evidence

of counsel’s reasons for the challenged conduct, an appellate court commonly will

assume a strategic motivation if any can possibly be imagined and will not

conclude that the challenged conduct constituted deficient performance unless the




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conduct was so outrageous that no competent attorney would have engaged in it.

See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

                         Ineffective Assistance of Counsel

      In his first and second issues, appellant argues that his trial counsel’s

performance was deficient because he was entitled to a jury instruction on the

defense of entrapment 2 and counsel failed to either request such an instruction or

object to the lack of such an instruction in the court’s charge.

      Here, the record does not show that appellant moved for a new trial.

Generally, a silent record that provides no explanation for counsel’s actions will

not overcome the strong presumption of reasonable assistance. Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Appellant argues that his not

raising ineffectiveness in a motion for new trial is not fatal to his claim because

entrapment was “the only feasible defensive theory raised by the evidence and

testimony” and no reasonable trial strategy could justify counsel’s failure to raise

the defense. See Lopez, 343 S.W.3d at 143; Andrews, 159 S.W.3d at 102.

      To determine whether the performance of appellant’s trial counsel fell below

an objective standard of reasonableness for not requesting an instruction on the

2
      Although appellant frames his first issue as “[t]he evidence and testimony
      presented at trial were sufficient to a defense of entrapment,” he neither asserts
      trial-court error nor requests specific relief on this point. Rather, he argues issue
      one as a predicate to issue two, namely, that he was entitled to the defense and,
      therefore, error lies in counsel having failed to request an instruction. Accordingly,
      we address appellant’s first and second issues together.
                                            5
defense of entrapment, we first consider whether appellant was entitled to the

instruction. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

      A defendant is entitled to a jury instruction on any defensive theory raised

by the evidence or testimony when such an instruction is properly requested.

Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984). Whether such

evidence or testimony is presented by the defense or the prosecution is irrelevant,

as is the strength of the evidence or testimony. Id.

      “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.” TEX. PENAL CODE

ANN. § 8.06(a) (Vernon 2011).          Conduct that merely affords a person an

opportunity to commit an offense does not constitute entrapment. Id.

      “[W]hen a defendant raises the defense of entrapment at trial, he has the

burden of producing evidence to establish every element of that defense.”

Hernandez v. State, 161 S.W.3d 491, 497 (Tex. Crim. App. 2005). Specifically,

the defendant must show that (1) he engaged in the conduct charged (2) because he

was induced to do so by a law enforcement agent, who (3) used persuasion or other

means, which (4) were likely to cause a person to commit the offense. Id. (the

“Hernandez elements”); see TEX. PENAL CODE ANN. §8.06. The defense has both

subjective and objective elements. Hernandez, 161 S.W.3d at 497 n.11 (citing

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England v. State, 887 S.W.2d 902, 913 & n.10 (Tex. Crim. App. 1994)). “The

subjective element requires evidence that ‘the accused himself was actually

induced to commit the charged offense by the persuasiveness of the police

conduct.’” Id. (quoting England, 887 S.W.2d at 913 n.10). The objective element

requires evidence that “the persuasion was such as to cause an ordinarily law-

abiding person of average resistance nevertheless to commit the offense.” Id.

“With respect to [the] objective element, prohibited police conduct can include

pleas based on extreme need, sympathy, pity, or close personal friendship, offers of

inordinate sums of money, and other methods of persuasion that are likely to cause

the otherwise unwilling person—rather than the ready, willing and anxious

person—to commit an offense.”       Id. Once the defense makes a prima facie

showing of each element, the State has the burden of persuasion to disprove

entrapment beyond a reasonable doubt. Id. at 498.

      Appellant argues that he was entitled to the defense because the evidence

and testimony “presented a prima facie case that establishes every element of the

entrapment defense.” We need not determine whether appellant met his burden

under the first three Hernandez elements because the record does not show that he

met his burden under the fourth element. See id.

      As to the fourth element, appellant asserts only that he “established that the

means used by Officer Das were likely to cause a person to commit the offense of

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prostitution by knowingly agreeing to engage in sexual conduct for a fee.” In his

reply brief, appellant adds, generally, that “the record expose[s] several instances

where law enforcement relentlessly attempted to induce Appellant to agree to

engage in sexual conduct for a fee.” Appellant asserts that the record shows that

Das “continued her efforts to induce appellant to engage in criminal conduct after

appellant failed to approach the officer,” “appellant did not initiate any

conversation with the officer, or suggest that he was looking for her,” and Das

introduced sexually explicit language into the conversation.

      Officer Das did twice approach appellant and speak with him; however,

appellant then asked her several times to get into his car. When Das refused and

offered to engage in sexual conduct with appellant at a nearby motel in exchange

for $15.00, appellant agreed. There is no evidence that Das used “pleas of extreme

need, sympathy, pity, or close personal friendship” or any other methods of

persuasion “likely to cause [an] otherwise unwilling person—rather than [a] ready,

willing and anxious person—to commit an offense.”              See id. at 497 n.11.

Appellant does not direct us to any evidence upon which we could conclude that an

ordinary law-abiding person of average resistance would have been induced to

engage in the offense of prostitution. See id. at 497 & n.11; see, e.g., Nichols v.

State, No. 02-11-00356-CR, 2012 WL 5447941, at *4 (Tex. App.—Fort Worth

Nov. 8, 2012, pet. ref’d) (mem. op., not designated for publication) (holding

                                         8
entrapment defense not raised when officer approached defendant, initiated

conversation, offered to engage in sexual acts for $20.00, and defendant readily

agreed); Allen v. State, 01-94-00990-CR, 1995 WL 149229, at *2 (Tex. App.—

Houston [1st Dist.] Apr. 6, 1995, pet ref’d) (mem. op., not designated for

publication) (stating that, even where officer approaches defendant and initiates

conversation, court could not “conclude as a matter of law that such an inducement

by the officer would cause an ordinary lawabiding person of average resistance” to

agree to exchange money for sexual conduct).           Here, Das merely afforded

appellant an opportunity to commit the offense. See Hernandez, 161 S.W.3d at

498. And conduct that merely affords a person an opportunity to commit an

offense does not constitute entrapment. See TEX. PENAL CODE ANN. § 8.06(a). We

conclude that appellant has not shown that he was entitled to an instruction on the

defense of entrapment.

      In support of his argument, appellant relies on Vasquez v. State, 830 S.W.2d

948 (Tex. Crim. App. 1992). In Vasquez, the court concluded that trial counsel’s

failure to request an instruction on the defense of necessity constituted ineffective

assistance because there was evidence to support the defense. Id. at 951. Further,

the record showed that counsel failed to conduct any independent investigation or

to adequately research the law. Id. at 951 n.4. Here, as discussed above, the

evidence presented at trial does not raise an issue on all of the elements of the

                                         9
defense of entrapment. See id. at 950. Thus, even if trial counsel had requested an

instruction, it would not have been available.

      Further, unlike in Vasquez, even if the defense of entrapment had been

raised by the evidence, the record is silent regarding counsel’s reasons for not

requesting an instruction. See Vasquez, 830 S.W.2d at 951 n.4. And defensive

issues “frequently depend upon trial strategy and tactics.” See Okonkwo v. State,

398 S.W.3d 689, 697 (Tex. Crim. App. 2013).

      We hold that appellant has failed to show by a preponderance of the

evidence that he received ineffective assistance of counsel at trial. See Strickland,

466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; see also Young v. State, 991

S.W.2d 835, 839 (Tex. Crim. App. 1999) (holding first prong of Strickland not

satisfied when counsel did not request instruction on necessity because defendant

not entitled to defense).

      Accordingly, we overrule appellant’s first and second issues.

      In his third issue, appellant argues that because his counsel “fail[ed] to

request an instruction on [his] only defensive theory,” he “was denied his

constitutional right to a fair trial” as “the jury was precluded from giving effect to

his entrapment defense.” And he asserts that “defense counsel’s failure to object to

the jury charge or request a defensive instruction is subject to an egregious harm

analysis.” Having concluded that appellant has not shown that he was entitled to

                                         10
an instruction on the defense of entrapment, we cannot conclude that appellant was

denied his constitutional right to a fair trial on this ground.

       Accordingly, we overrule appellant’s third issue.

                                       Judgment

       Finally, as the State notes, the reporter’s record shows that the trial court

orally pronounced appellant’s punishment as confinement for “four days.”

However, the trial court’s judgment reflects that appellant was assessed

punishment of confinement for “3 days.” When, as here, the oral pronouncement

of sentence and the written judgment vary, the oral pronouncement controls. See

Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). When the written

judgment fails to conform to the oral pronouncement of punishment, the judgment

should be reformed to reflect the record of proceedings. Thompson v. State, 108

S.W.3d 287, 290 (Tex. Crim. App. 2003); see TEX. R. APP. P. 43.2(b); Nolan v.

State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (“An

appellate court has the power to correct and reform a trial court judgment to make

the record speak the truth when it has the necessary data and information to do

so.”). Although the State has not requested that the judgment be reformed, our

authority to reform an incorrect judgment does not depend on the request of a

party. See Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991,

pet. ref’d).

                                           11
      Accordingly, we reform the written judgment to reflect that the trial court

assessed appellant’s punishment at confinement for four days.

                                   Conclusion

      We modify the judgment of the trial court and affirm the judgment as

modified.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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