Busby, Lecinthia Deneane v. State ( 2003 )

Opinion issued December 18, 2003  

    In The

Court of Appeals

For The

First District of Texas

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  NO. 01-02-00554-CR

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 LESCINTHIA DENEANE BUSBY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 9th District Court

 Waller County, Texas

Trial Court Cause No. 01-06-10,674

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MEMORANDUM OPINION

          A jury found appellant, Lescinthia Deneane Busby, guilty of delivery of cocaine weighing between one gram and four grams. See Tex. Health & Safety Code Ann. § 481.112(c) (Vernon Supp. 2004). The jury assessed punishment at five years in prison. We determine whether (1) the trial court erred in denying appellant’s applications for deposition without a hearing, (2) appellant was denied due process by the State’s alleged withholding of evidence, and (3) appellant was entitled to a finding of entrapment as a matter of law. We affirm.

Background

          On October 15, 1999, three undercover investigators from the Westside Narcotics Task Force approached appellant’s home after there was a complaint of drug trafficking in the area. Investigator Steve Duong knocked on appellant’s door and told her that he and the other investigators wanted to buy cocaine. Appellant stated that she did not have any cocaine, but that she would call her cousin to get some. Appellant’s cousin then delivered cocaine to the officers in exchange for cash. Following that day, Investigator Duong and his partner, Investigator Mike Hutto, visited appellant’s home on several occasions. Investigator Duong also attempted to establish a rapport with appellant by driving her to the store to get cigarettes or to get liquor. On November 9, 1999, Investigator Duong and Investigator Hutto visited appellant’s home and asked her if they could purchase cocaine. Appellant replied that she could get it if they would give her a ride. The investigators then drove appellant as she directed them to a house that was known for drug activity. Investigator Duong and Investigator Hutto each gave appellant $100, and she went into the house and returned five to 10 minutes later with cocaine. The investigators and appellant then returned to appellant’s house. Appellant produced three bags of cocaine powder and divided one bag in half. She gave one and one-half bags of cocaine to Investigator Duong and the other one and one-half bags to Investigator Hutto. Appellant was arrested for this offense on August 8, 2001.  

Denial of Applications for Depositions

          In her second point of error, appellant argues that the trial court erred in denying, without a hearing, her pretrial applications for depositions. Appellant relies on Texas Code of Criminal Procedure article 39.02 as the basis for her argument that the trial court was required to hold a hearing on her applications. See Tex. Code Crim. Proc. Ann. art 39.02 (Vernon 2003).

          Under article 39.02, a defendant may take the deposition of a witness when “good reason” is shown. See Cooks v. State, 844 S.W.2d 697, 729 (Tex. Crim. App. 1992); see also Tex. Code Crim. Proc. Ann. art 39.02. The trial court has broad discretion in ruling on an application to take a deposition. Cooks, 844 S.W.2d at 729. If the application for deposition is denied, the defendant must show that she was harmed in order to establish an abuse of discretion. May v. State, 738 S.W.2d 261, 273 (Tex. Crim. App. 1987).

          Both the State and appellant assert in their briefs that the trial court ordered that pre-trial motions be filed by February 11, 2002 and that a hearing on the motions be held on February 18, 2002. We note that the State and appellant signed an agreement requiring those deadlines, but that the trial court did not sign the agreement. However, because appellant admits on appeal that she was required to file any applications for depositions by February 11, 2002, and because she considered this agreement to have been the equivalent of a court-ordered deadline, we, too, consider that she was required to meet that deadline.

          Appellant claims that she complied with the trial court’s order by filing her applications for depositions by February 11. However, the district clerk’s office file-stamped the applications on February 18, and the accompanying affidavit of appellant’s counsel was also dated February 18. Code of Criminal Procedure article 28.01 states that, when a criminal case is set for a pre-trial hearing, any preliminary matters not filed seven days before the hearing cannot be filed without the court’s permission given for good cause shown. See Tex. Code Crim. Proc. Ann. art. 28.01, § 2 (Vernon Supp. 2004). Article 28.01 includes discovery as such a preliminary matter. See id. § 1(8) (Vernon Supp. 2004). Because appellant did not timely file her applications for depositions, we hold that the trial court did not abuse its discretion in denying the applications.

          We overrule appellant’s second point of error.State’s Alleged Withholding of Evidence  

          In her first point of error, appellant argues that the State completely closed its files to her by (1) refusing to give her a means to interview the officers who testified at trial; (2) refusing to give names of witnesses other than those who would testify at trial; and (3) failing to provide basic information concerning when the offense occurred, who initiated the contact, and how the offense was completed.

          Appellant was necessarily aware of the allegedly withheld evidence prior to trial, but failed to object or to request a continuance on that ground. Accordingly, the appellant either waived any error regarding withheld evidence or did not show that the error prejudiced her. See Tex. R. App. P. 33.1(a)(1); cf. Apolinar v. State, 106 S.W.3d 407, 421 (Tex. App.—Houston [1st Dist.] 2003, pet. granted) (holding that, when withheld evidence is disclosed at trial, error is waived if defendant does not request continuance or show that delay was prejudicial); Williams v. State, 995 S.W.2d 754, 762 (Tex. App.—San Antonio, 1999, no pet.) (holding that failure to object or to request continuance constitutes error when withheld evidence is disclosed at trial).

            We overrule point of error one.

Entrapment

          In her third point of error, appellant contends that entrapment was proved as a matter of law.

          Entrapment is a defense. See Becker v. State, 840 S.W.2d 743, 746 (Tex. App.—Houston [1st Dist.] 1992, no pet.); see also Tex. Pen. Code Ann. § 8.06(a) (Vernon Supp. 2004). A review of the jury’s rejection of an entrapment defense centers on the legal sufficiency of the evidence. See Flores v. State, 84 S.W.3d 675, 681 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). The Court views the evidence in the light most favorable to the prosecution 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 [the] defense beyond a reasonable doubt.” Id.

          Here, appellant admitted at trial that she took money from the officers and delivered drugs to them on the date alleged. This testimony was legally sufficient to support the elements of the crime. See Tex. Health & Safety Code Ann. § 481.112(c) (Vernon Supp. 2004). As a result, we must determine only the legal sufficiency of the evidence to support the jury’s implicit finding that appellant was not entrapped. See Flores, 84 S.W.3d at 681.

          Texas Penal Code section 8.06 provides that the entrapment defense applies when “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.” Tex. Pen. Code Ann. § 8.06(a). Because entrapment is a defense to prosecution, not an affirmative defense, the defendant has the burden of producing evidence to raise the defense, but the State has the burden of persuasion to disprove the defense. See Becker, 840 S.W.2d at 746.

          To raise the entrapment defense, appellant had to produce evidence that (1) she was actually induced to commit the offense and (2) the inducement would have caused an ordinarily law-abiding person of average resistance nevertheless to commit the offense. See England v. State, 887 S.W.2d 902, 913-14 (Tex. Crim. App. 1994). To pass the first prong of the test, the defendant must show that, because of police persuasion, she was induced to act. Flores, 84 S.W.3d at 682. The second prong is an objective test requiring a showing of prohibited police conduct including, but not limited to, extreme pleas of desperate illness in drug cases; appeals based on sympathy, pity, or close personal friendship; offers of inordinate sums of money; and other methods of persuasion that are likely to cause an otherwise unwilling person to commit a crime. See Sebesta v. State, 783 S.W.2d 811, 814 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).

          Appellant first focuses her argument on the factual similarities between her case and Soto v. State. Although the Austin Court of Appeals found that the defendant in Soto was entrapped, the Court of Criminal Appeals subsequently reversed that decision on the same ground. See Soto v. State, 681 S.W.2d 602 (Tex. Crim. App. 1984). Thus, the Soto decision does not avail appellant.

          Appellant next argues that she helped the officers get cocaine because they continued to come to her house and because “they would not take ‘no’ for an answer.” Appellant asserts that she gave in to the officer’s requests to get cocaine for them only because they visited her home repeatedly and because she thought that they were her friends. However, appellant also testified that she called her cousin to come over to deliver drugs to the officers on the first day that they came to her house. Additionally, appellant testified that the officers never pressured her to sell them any drugs. Any inconsistencies in the testimony must be resolved in favor of the factfinder’s determination. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). Under these circumstances, a rational trier of fact could have concluded beyond a reasonable doubt that appellant was not induced to deliver cocaine to the officers based on any prohibited police conduct. We thus hold that appellant was not entrapped as a matter of law.

          We overrule appellant’s third point of error.Conclusion

We affirm the judgment of the trial court.

                                                                        Tim Taft

     Justice

Panel consists of Justices Taft, Nuchia, and Keyes.

Do not publish. Tex. R. App. P. 47.2(b).