Opinion filed June 6, 2013




                                     In The


        Eleventh Court of Appeals
                                  __________

                             No. 11-11-00192-CR
                                 __________

                  RICHARD ARTHUR JONES, Appellant

                                       V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 266th District Court
                              Erath County, Texas
                        Trial Court Cause No. CR13465


                      MEMORANDUM OPINION
      The jury convicted Richard Arthur Jones, Appellant, of the offense of online
solicitation of a minor and assessed his punishment at confinement for twenty
years and a $10,000 fine. As charged in this case, the offense was a second-degree
felony because Appellant, intending to gratify himself sexually, communicated by
text message or electronic message “in a sexually explicit manner, to-wit:
descriptions of oral sex, deviant sexual intercourse, and masturbation, with Tony
Yocham, using the identity” of K.M.L., an individual younger than fourteen years
of age or whom Appellant believed to be younger than fourteen years of age. See
TEX. PENAL CODE ANN. § 33.021(b)(1), (f) (West 2011). We affirm.
      In his sole issue on appeal, Appellant contends that the trial court erred when
it refused to submit the defense of entrapment in its charge to the jury. Entrapment
is a defense to prosecution when the defendant “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).      Entrapment includes both a subjective and an objective
component: the defendant must show both that he was actually induced to commit
the charged offense and that the persuasion was such as to cause an ordinarily law-
abiding person of average resistance to commit the crime. England v. State, 887
S.W.2d 902, 913–14 (Tex. Crim. App. 1994). Objective inducement occurs when
law enforcement tactics rise to the level of “active and overt persuasion, more than
mere temptation.” Id. at 911. “Conduct merely affording a person an opportunity
to commit an offense does not constitute entrapment.” PENAL § 8.06(a). The
defense of entrapment, when raised, is normally a question for the jury to decide.
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 a 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.
      The record in this case shows that Appellant timely requested a jury charge
on the defense of entrapment. Appellant asserted that the e-mails in State’s Exhibit
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No. 1 contained evidence of inducement that raised the defense of entrapment.
The trial court determined that entrapment was not raised by the evidence and,
accordingly, denied Appellant’s request.
      We have reviewed the record, and we agree that the evidence failed to raise
the defense of entrapment. The evidence shows that, prior to the involvement of
law enforcement in this case, Appellant had been conversing with K.M.L. via text
messages and e-mails. K.M.L.’s brother found out and sent messages to Appellant
telling him to leave K.M.L. alone and informing him that K.M.L. was only thirteen
years old. According to K.M.L. and her mother, sexually explicit text messages
from Appellant were on K.M.L.’s phone. K.M.L.’s mother testified about the
content of one of those messages; it stated that Appellant “wanted to squirt cum”
all over K.M.L.’s body. K.M.L.’s parents took her phone away, and her father
monitored the incoming messages for about a week. While K.M.L.’s father had
her phone, Appellant sent a text message stating that he was FBI or ex-marine and
could track her down.       Alarmed, K.M.L.’s parents contacted the police.
Investigator Anthony Wayne Yocham took over K.M.L.’s persona and made it
clear in e-mails to Appellant that Appellant was conversing with a thirteen-year-
old girl. Investigator Yocham’s e-mails to Appellant did not initiate sexually
explicit conversations or use any type of persuasion that would cause an ordinarily
law-abiding person to commit the offense of online solicitation of a minor. Fifty-
year-old Appellant thought he was conversing with thirteen-year-old K.M.L. when
he sent sexually explicit messages, in which Appellant described various sexual
acts that he wanted to engage in with K.M.L., to K.M.L.’s e-mail address. An
exhibit containing the e-mail messages between Appellant and Investigator
Yocham was introduced into evidence. None of those e-mails support Appellant’s
contention.


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      Nothing in the record indicates that Appellant was either subjectively or
objectively induced by a law enforcement agent 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 PENAL § 8.06(a).
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.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


June 6, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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