                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-243-CR


HENRI SHAWN KEETON                                                  APPELLANT
A/K/A SHAWN H. KIETH
                                              V.

THE STATE OF TEXAS                                                       STATE

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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      Appellant Henri Shawn Keeton appeals his conviction for unauthorized use

of a vehicle. In one point, Keeton contends that the trial court erred by failing

to instruct the jury on the defense of entrapment. We will affirm.




      1
          … See T EX. R. A PP. P. 47.4.
                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      In March 2007, at approximately 10:00 a.m., the Fort Worth police

department parked a “bait vehicle” on a curb in a high-crime area of the city.

Detective Joe Harder, who leads the auto theft task force in Fort Worth,

testified at Keeton’s trial that bait cars are vehicles, including both cars and

pickup trucks, that the police have specially equipped with a GPS device,

infrared lights, and cameras that record people in the vehicle. The cars are set

to alert the police department silently when a door, trunk lid, or tool box

(depending on the make of the bait car) is opened. When someone gets into

a bait car and drives it, the police are able to track the vehicle via the GPS

device. One of the infrared lights, which allows the video-recording cameras

to pick up a picture even at night, is angled toward the driver’s seat and is

activated when a door is opened.       The detective testified that the police

essentially park the bait car, walk away, and do not touch the vehicle until

someone has triggered one of the silent alarms, at which point the police use

the GPS device to track the vehicle and arrest the person illegally driving it.

      The bait car in this case was actually a pickup truck.         It was left

unlocked, with the windows partially rolled down, and the ignition keys lying

on the console. Approximately twelve hours after the pickup truck was parked,

the vehicle’s silent alarm alerted the police that one of the doors had opened

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and closed immediately. The truck did not become mobile, so Detective Harder

decided to wait before moving in on it. Almost two hours later, at 11:41 p.m.,

the detective received an alert from the truck’s silent alarm that the truck had

become mobile.

      At that point, Detective Harder coordinated with officers in the field and,

using the GPS tracking device, told the officers the direction in which the truck

was moving.      One of those field agents, Officer Willingham, testified at

Keeton’s trial that, based on Detective Harder’s instructions, he and another

officer located the truck, pulled it over, and discovered Keeton in the driver’s

seat. Detective Harder additionally testified that he arrived on the scene shortly

after Keeton was stopped, pulled the videotape from the truck’s camera,

watched that video in his patrol car, and saw on the video Keeton driving the

truck. The video showing Keeton driving the truck was admitted into evidence

and played for the jury.

      At the conclusion of the trial, the jury deadlocked on whether Keeton had

committed theft, which was the first charge against Keeton in the indictment,

but found Keeton guilty of unauthorized use of a vehicle, which was the second

charge in the indictment. At the punishment phase of the trial, Keeton pleaded

true to previously being convicted of two state jail felony offenses. The jury




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accordingly sentenced Keeton to ten years’ incarceration, and the trial court

entered a judgment consistent with the jury’s finding. Keeton now appeals.

                                 III. E NTRAPMENT

      A.    Jury Charge on a Defensive Theory

      A charge on a defensive issue is required if the accused presents

affirmative evidence that would constitute a defense to the crime charged and

a jury charge is properly requested. Miller v. State, 815 S.W.2d 582, 585

(Tex. Crim. App. 1991); Barnes v. State, 70 S.W.3d 294, 304 (Tex. App.—Fort

Worth 2002, pet. ref’d). In determining whether evidence raises a defense, the

credibility of the evidence is not at issue. Muniz v. State, 851 S.W.2d 238,

254 (Tex. Crim. App.), cert. denied, 510 U.S. 837 (1993); Barnes, 70 S.W.3d

at 304. In other words, if a defendant produces evidence raising each element

of a requested defensive instruction, that defendant is entitled to the instruction

regardless of the source and strength of the evidence. Hamel v. State, 916

S.W.2d 491, 493 (Tex. Crim. App. 1996); Barnes, 70 S.W.3d at 304.

      Unlike legal challenges to the sufficiency of the evidence, we review the

evidence offered in support of the defensive theory in the light most favorable

to the defense. Barnes, 70 S.W.3d at 304; Brazelton v. State, 947 S.W.2d

644, 646 (Tex. App.—Fort Worth 1997, no pet.). Appellate review of error in

a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726,

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731 (Tex. Crim. App. 1994).         Initially, we must determine whether error

occurred. If so, we must then evaluate whether sufficient harm resulted from

the error to require reversal. Id. at 731-32.

      Error in the charge, if timely objected to in the trial court, requires reversal

if the error was “calculated to injure the rights of [the] defendant,” which

means no more than that there must be some harm to the accused from the

error. T EX. C ODE C RIM. P ROC. A NN. art. 36.19 (Vernon 2006); see also Abdnor,

871 S.W.2d at 731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh’g). In other words, a properly preserved error will

require reversal as long as the error is not harmless. Almanza, 686 S.W.2d at

171. In making this determination, “the actual degree of harm must be assayed

in light of the entire jury charge, the state of the evidence, including the

contested issues and weight of probative evidence, the argument of counsel

and any other relevant information revealed by the record of the trial as a

whole.” Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App.

2000).

      B.    Jury Charge on Entrapment

      Texas Penal Code section 8.06(a) establishes,

            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

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      persons to commit the offense. Conduct merely affording a person
      an opportunity to commit an offense does not constitute
      entrapment.

T EX. P ENAL C ODE A NN. § 8.06(a) (Vernon 2003).        Thus, entrapment is a

defensive theory. See T EX. P ENAL C ODE A NN. § 2.03(c),(d) (Vernon 2003). If

evidence supporting the defense of entrapment is admitted, the issue must be

submitted to the jury with the instruction that a reasonable doubt on the issue

requires acquittal. Id. § 2.03(d).

      Entrapment exists if the criminal intent originates in the mind of the police

agent and the agent then induces the accused to commit the offense. Barnes,

70 S.W.3d at 304; Torres v. State, 980 S.W.2d 873, 875 (Tex. App.—San

Antonio 1998, no pet.). Conversely, entrapment does not exist where the

police agent merely furnishes the opportunity for the commission of the

offense. T EX. P ENAL C ODE A NN. § 8.06(a).

      The test for entrapment under section 8.06 is a two-pronged test

composed of subjective and objective elements. England v. State, 887 S.W.2d

902, 910 (Tex. Crim. App. 1994); McGann v. State, 30 S.W.3d 540, 545

(Tex. App.—Fort Worth 2000, pet. ref’d).        For the subjective element, the

accused must show that he was induced by law enforcement to engage in the

illegal conduct.   England, 887 S.W.2d at 913.        The accused who claims




                                        6
entrapment must therefore produce evidence that the police actually and in fact

induced him into committing the charged offense. Id.

      Once the subjective element of inducement is shown, the accused must

additionally demonstrate how he meets the objective element of section 8.06.

Id. at 914.    For this second element, the accused must show that the

persuasion used by the police was such as to cause an ordinarily law abiding

person of average resistance to nevertheless commit the offense. Id. The

amount of persuasion that it takes to meet this test will vary from case to case,

but examples of conduct that may meet this test include pleas based on

extreme need, sympathy, or close personal friendship; offers of inordinate sums

of money; and extreme pleas of need due to desperate illness. Guia v. State,

220 S.W.3d 197, 204 (Tex. App.—Dallas 2007, pet. ref’d); Campbell v. State,

832 S.W.2d 128, 130 (Tex. App.—Corpus Christi 1992, pet. ref’d); Becerra v.

State, No. 05-99-00412-CR, 2000 WL 124683, at *2 (Tex. App.—Dallas, Feb.

3, 2000, pet. ref’d) (not designated for publication).

                        IV. K EETON’S E NTRAPMENT C LAIM

      In his sole point, Keeton argues that the trial court erred by failing to

instruct the jury on the defense of entrapment. At trial, only two police officers

testified; Keeton did not testify or offer any other supporting testimony. The

testimony of the officers was that they had no interaction at all with Keeton

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until after he was pulled over for driving the pickup truck. Keeton did not

present any evidence whatsoever showing the subjective impact on him of the

officers’ leaving the bait car so situated.2

      Based on this record, therefore, Keeton did not offer any evidence to

meet the first element of section 8.06—that the officers in fact induced him

into driving the car. See T EX. P ENAL C ODE A NN. § 8.06(a); Gomez v. State, No.

14-00-01023-CR, 2002 WL 480206, at *5 (Tex. App.—Houston [14th Dist.]

Mar. 28, 2002, pet. ref’d) (not designated for publication) (holding that

inducement was not established where the defendant did not testify and none

of the officers testified about the specifics of the conversations they had with

the defendant); Becerra, 2000 WL 124683, at *2 (holding that where the

defendant did not testify and there was no other testimony as to why she

committed the crime, inducement was not established); Hill v. State, No. C14-

92-01005-CR, 1994 WL 268187, at *3 (Tex. App.—Houston [14th Dist.] June

16, 1994, no pet.) (not designated for publication) (holding that a jury charge


      2
       … In fact, through the questions of Keeton’s attorney on cross-
examination of the officers and through the attorney’s statements in closing
arguments, Keeton appeared to posit that someone had opened the door at
10:00 p.m., removed the keys, and given them to Keeton under the guise of
ownership (i.e., someone told Keeton that he or she owned the truck and gave
Keeton the keys and permission to drive it). In this extremely broad reading of
the record, therefore, the only evidence adduced indicated that Keeton was
claiming that someone else, not the police, induced him into driving the vehicle.

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on entrapment was not required where the defendant presented no affirmative

evidence establishing that he was induced into committing the crime).

      Furthermore, Keeton presented no evidence establishing the second,

objective test prong of section 8.06.        See T EX. P ENAL C ODE A NN. § 8.06.

Keeton did elicit testimony that the police left the bait car with the windows

partially down, the doors unlocked, and the keys lying on the console. But he

did not present any evidence or elicit any further testimony indicating any

persuasion from the police or otherwise showing that an ordinary, law abiding

person of average resistance would steal a car just because it may have been

an easy target. See England, 887 S.W.2d at 914. The evidence presented

demonstrated that the police merely afforded Keeton the opportunity to steal

the pickup truck, not that the officers in any way entrapped Keeton. See T EX.

P ENAL C ODE A NN. § 8.06(a); England, 887 S.W.2d at 914.

      Because Keeton did not present any evidence that would meet either the

subjective or objective prongs of section 8.06, he was not entitled to a jury

charge on the defense of entrapment, and the trial court did not err by denying

his request for such an instruction. See T EX. P ENAL C ODE A NN. § 2.03(c); Miller,

815 S.W.2d at 585. Accordingly, we overrule Keeton’s sole point.




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                                V. C ONCLUSION

      Having overruled Keeton’s sole point, we affirm the trial court’s judgment.




                                                 SUE WALKER
                                                 JUSTICE

PANEL F:     GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: March 20, 2008




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