                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00488-CR
                           ____________________

                         DUSTIN LEE DAY, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
________________________________________________________________________

                   On Appeal from the 221st District Court
                        Montgomery County, Texas
                      Trial Cause No. 14-02-01545 CR
________________________________________________________________________

                         MEMORANDUM OPINION

      Dustin Lee Day, Appellant, was indicted for the offense of online

solicitation of a minor. See Tex. Penal Code Ann. § 33.021(c) (West 2011). The

indictment alleged that Day knowingly solicited over the internet or by text

message or by electronic mail or commercial online service “J. Nichols, a minor, to

meet the defendant, with the intent that J. Nichols would engage in sexual contact




                                        1
or sexual intercourse or deviate sexual intercourse with [Day.]” 1 Day entered a plea

of not guilty, but a jury found him guilty as charged and assessed his punishment at

confinement for twenty years. Appellant timely filed a notice of appeal. We affirm.

                                   Underlying Facts

      On February 5, 2014, a Conroe Police Investigator, working as part of the

Internet Crimes Against Children (ICAC) task force, placed an ad on Craigslist,

wherein the Investigator assumed a fictional persona of a teenage girl that the

Investigator   named      “Kelly    Franklin,”   with    an   email    address    of

“kellyfranklin1998@gmail.com.” The ad was entitled “skipping school looking for

fun – w4m (conroe tx area)” and posted in the Craigslist “Casual Encounters”

section. The ad stated:

      skipping school today looking to have some fun…looking to have
      some fun today…tired of the boys from school wanting a mature guy
      to have fun with…. include your pic and skipping school and what
      1
        Subsection (c) of section 33.021 of the Texas Penal Code provides that a
person commits the offense of online solicitation of a minor “if the person, over the
Internet, by electronic mail or text message or other electronic message service or
system, or through a commercial online service, knowingly solicits a minor to meet
another person, including the actor, with the intent that the minor will engage in
sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or
another person.” Tex. Penal Code Ann. § 33.021(c) (West 2011). J. Nichols was a
law enforcement officer posing as a fourteen-year-old girl. Section 33.021(a)(1)
defines “minor” for purposes of section 33.021 as “an individual who represents
himself or herself to be younger than 17 years of age” or “an individual whom the
actor believes to be younger than 17 years of age.” Tex. Penal Code Ann. §
33.021(a)(1) (West 2011) (emphasis added).
                                         2
      you want to do in your first response or don’t bother replying...tired of
      the games and spam…have until around 330 today...

      The Investigator testified that he posted the ad on Craigslist as part of the

ICAC’s “proactive enforcement” activities, which include placing ads on social

media sites to see who might respond. The Investigator received what he described

as “[p]robably -- over 100[]” responses. According to the Investigator, once he

identified himself as a fourteen-year-old girl, “[n]early all of them” stopped

responding. However, one person, with the posting ID “daycr11[,]” kept

responding. Posing as Kelly Franklin, the Investigator continued to have online

conversations with “daycr11[.]” In the first post by “daycr11” (later identified as

Day) to the initial ad, Day posted the following message along with a picture:2

      Hello I’m David, I’m 27, tall with green eyes. I’m a country boy and I
      drive a lifted Chevy.…I’m sure we could have fun in the truck if your
      interested? I love eating p _ _ _y and I can teach you a few things lol
      I’m clean and ddf. I like younger girls. And a pic if your
      interested….let’s go have fun[.]

Still posing as Kelly, the Investigator responded, as follows:

      hey, thanks for responding to my post…i wanna b up front with u I’m
      fourteen but mature an into older guys…if ur into younger hmb…btw
      ur very HOT :)

      2
         In this memorandum opinion we have edited the messages by replacing
certain letters within some of the explicit language of the messages with blank
spaces. The actual messages in the record contained the full text of the words
spelled out.

                                          3
Day then responded that he “like[d] younger girls[,]” and he asked Kelly “when

and where would you like to meet[.]” Day then sent another message to Kelly

stating “Are you down to f_ _ k? I’d love to lick on your p_ _ _y lol.” Kelly

responded and they continued to exchange sexually explicit emails via Craigslist.

In the emails, Day made several references to the sexual acts he intended to

perform on Kelly.

      Kelly and “daycr11” agreed to meet in Conroe on February 6, 2014, but the

Investigator testified that “daycr11” did not show up for the meeting. Later,

“daycr11” sent a message on Craigslist to Kelly telling her he was running late but

that he had shown up later and he drove down the street where Kelly told him she

lived. According to the Investigator, Day suggested that they should use text

messages instead, and they began corresponding by text message.

      The Investigator and Day arranged for another meeting, on February 7,

2014. When Day arrived at the meeting location, the Investigator and others were

waiting for him. The Investigator observed a maroon Chevy truck pull into the

parking lot, and the truck matched the description of the vehicle that “daycr11”

said he would be driving. The Investigator, still posing as fourteen-year-old Kelly,

texted “daycr11” and told him she was “[i]n back sittin on the deck[.]” The Chevy

pulled around to the back and at that time the Investigator then made contact with
                                         4
the driver of the truck, who was then identified as Dustin Lee Day. According to

the Investigator, he stopped Day’s vehicle, put Day in the backseat of the police

vehicle, asked Day what he was doing, and Day told the Investigator he was there

to meet Kelly.

      During the pretrial, Day’s attorney notified the trial court that Day claimed

that he was “entrapped into committing this offense[,]” and Day filed a pretrial

Motion for a Separate Hearing on Entrapment as a Matter of Law. The trial court

conducted a pretrial hearing relating to the entrapment motion and denied the

motion. During voir dire of the jury panel, the attorneys specifically discussed the

entrapment defense. The trial court instructed the jury about the law of entrapment

during jury selection.

      THE COURT: I am going to go ahead and instruct you now about the
      law of entrapment. And the reason why is I feel like they have
      bantered that word around on TV as if it is -- it comes up all the time.
      So I would rather you have what the law is in the state of Texas.

              And the four things that must be shown is that the Defendant
      has to admit that he committed the conduct charged. And then he has
      to say that he was induced to do so by a law enforcement agent who
      used persuasion or other means. And there has to be evidence that
      those means were likely to cause persons to commit the crime and
      commit the offense. And once all four of those things are raised, then
      the burden shifts to the State to disprove that. They have to show that
      that is not the case.

            So it is kind of complicated. And I feel as if sometimes people
      will use that word all the time, “oh, that is entrapment.” And really
                                        5
      there is -- there are four requirements in order to have that there. And
      if it is not met, then there is no entrapment charge given.

              If the evidence raises it, then I will put it in my charge at the
      end of the trial and you will be given a charge on it so you can address
      that. It is just like any other defense -- it is like self-defense or defense
      of a third person -- or any other defense has to be raised by the
      evidence.

             So in this section they have to talk about what they think might
      be raised. . . . And because somebody asked a question about it, that is
      the law. You have to have those four things proven or raised and then
      the State has to disprove them.

      During the trial, Day’s attorney cross-examined the Investigator regarding

the concept of entrapment. The Investigator denied that he encouraged, persuaded,

or induced Day to commit the offense. Day’s attorney requested the trial court to

include an instruction regarding the entrapment defense and tendered a proposed

instruction to the trial court. The trial court refused the instruction, emphasizing

that the defense had failed to meet its burden to establish the necessary elements

for an entrapment defense.

                                       Analysis

      In his sole issue on appeal, Appellant contends that the trial court erred when

it refused to submit the defense of entrapment in the charge to the jury. Appellant

contends on appeal that the initial posting by the Investigator induced Appellant to

make contact and ultimately to commit the offense, by creating an online persona

                                           6
to engage Appellant, by responding with sexual tones in messages, by sending

overtly sexual emails and texts, and by suggesting a meeting place and time and

requesting Appellant to bring condoms.

      By statute, entrapment is a defense to prosecution when the defendant

contends that he “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) (West 2011); see

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

law, a defendant has the burden of producing evidence to raise the defense of

entrapment at trial, and the defendant must present a prima facie case that:

      1) he engaged in the conduct charged;
      2) because he was induced to do so by a law enforcement agent;
      3) who used persuasion or other means; and
      4) those means were likely to cause [ordinarily law-abiding people] to
      commit the offense.

Hernandez, 161 S.W.3d at 497-98; see also Tex. Penal Code Ann. § 8.06.

“Conduct merely affording a person an opportunity to commit an offense does not

constitute entrapment.” Tex. Penal Code Ann. § 8.06(a). The entrapment defense

consists of two tests: the first is subjective, and the second is objective. England v.

State, 887 S.W.2d 902, 910 (Tex. Crim. App. 1994). The subjective test is satisfied

only if, but for the law enforcement agent’s inducing conduct, the defendant would

                                          7
not have committed the crime. Id. at 912. The objective test is satisfied only if the

law enforcement agent’s conduct “was such as to cause an ordinarily law[-]abiding

person of average resistance nevertheless to commit the offense.” Id. at 914; Flores

v. State, 84 S.W.3d 675, 682 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

The defense of entrapment, when raised, is normally a question for the jury to

decide. See Hernandez, 161 S.W.3d at 498.

      A jury charge on a defensive issue is required if properly requested and if

evidence from any source raises that defense. Muniz v. State, 851 S.W.2d 238, 254

(Tex. Crim. App. 1993). In determining whether the evidence raises the defense,

the credibility of the evidence is not at issue; the evidence may be strong, weak,

contradicted, unimpeached, or unbelievable. Id. When the evidence fails to raise a

defensive issue, the trial court does not err in refusing the defendant’s request. Id.

      We have reviewed the record and we conclude that the trial court did not err

in refusing Day’s request. The evidence shows that the original post by the

Investigator did not contain any sexually explicit content and Day, along with

many others, voluntarily responded to the request. The Investigator testified that of

the “[p]robably over -- 100” responses to Kelly’s post, once Kelly notified the

responders that Kelly was fourteen years old, “[n]early all” of them stopped

responding, except for “daycr11[,]” later identified as Day. Although Day was told

                                           8
in the second post from Kelly that Kelly was only fourteen years old, Day

voluntarily continued to correspond, he asked to have sex with her, and he asked to

meet with her. At the time he sent such posts, he committed the offense of online

solicitation. Day continued to send Kelly sexually explicit messages and texts, as

well as photos of himself. Exhibits containing the email and text messages between

Appellant and Kelly were introduced into evidence. Nothing in the record indicates

that Appellant was either subjectively or objectively induced by the Investigator to

commit the offense by such persuasion that would cause an ordinarily law-abiding

person of average resistance to commit the crime of online solicitation of a minor.

See Tex. Penal Code Ann. § 8.06(a); England, 887 S.W.2d at 908. Because no

evidence of such inducement was introduced at trial, the evidence did not raise the

defense of entrapment. Therefore, Appellant was not entitled to a jury instruction

on the defense of entrapment. Appellant’s sole issue is overruled. We affirm the

judgment of the trial court.

      AFFIRMED.
                                                   _________________________
                                                      LEANNE JOHNSON
                                                            Justice

Submitted on August 6, 2015
Opinion Delivered October 14, 2015
Do Not Publish

Before Kreger, Horton and Johnson, JJ.
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