SABINO FRAIRE v. THE STATE OF TEXAS (2010)

OPINION

Opinion By Justice Morris

A jury convicted Sabino Fraire of possession of cocaine with intent to deliver.   He now contends on appeal that the evidence against him is legally and factually insufficient to support the jury's implicit rejection of his entrapment defense.   Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

Factual Background

Dallas police officer Mario Castanon received information from a confidential informant about drug dealers in an area of Oak Cliff.   Acting undercover, Castanon attended a party in that area with the informant.   He told a man there that he “moved” large amounts of marijuana and was looking for a new connection.   That man brought appellant to Castanon.   After making a phone call, appellant, in turn, led Castanon to a bar where he met Jesus Medina.   Medina offered Castanon a quarter of a pound of marijuana to sample.   He then instructed appellant to exchange phone numbers with Castanon.   A couple of days later, appellant called Castanon and asked if he was ready to buy marijuana from Medina.   Castanon told appellant he wanted to buy three pounds for $400 per pound.

At the time of the marijuana sale, Castanon met with appellant and Medina in the bar.   Castanon bought three pounds of marijuana, then appellant said he could buy a fourth pound for $350.   Castanon agreed to the deal.   Afterward, appellant accompanied Castanon as he walked to his car.   He invited Castanon to come back inside for a beer.   Castanon accepted.   As he sat at a table with Castanon and appellant, Medina said to appellant, “Tell him what I really do.”   Appellant informed Castanon that their main business was moving cocaine.   Castanon responded by telling them that he had “traps” and connections all around the Dallas area.¹  They began negotiating a deal for the sale of kilos of cocaine.   At the time, Medina wanted to sell a kilo to Castanon for $19,000, but Castanon said that the price was too high.   Castanon said that he was getting ready to go home for the Christmas holidays, so Medina told him to get in touch when he got back into town.

While he was away on vacation, Castanon received several calls from appellant about the cocaine deal.   Once he returned, they agreed to a deal where Castanon would purchase two ounces of cocaine as a sample, then buy two kilos if the sample was acceptable.   Castanon went to the bar for the first cocaine deal.   From there, Medina and appellant had him follow them to a house in Pleasant Grove.   At the house, a man came outside saying he had the two kilos ready for sale.   Castanon reiterated that he just wanted to buy two ounces at that time.   Appellant agreed and told the sellers that Castanon was only to purchase the two ounces at that time.   After that purchase, Castanon left the house.

A few days later, appellant called Castanon and said he had two kilos of cocaine ready for him.   They set up a meeting for that evening, but the deal fell through.   Appellant then “guaranteed” appellant that they would be able to do the deal the next day.   The following morning, appellant called him and assured him that the kilos were available.   That evening, Castanon met with appellant at an apartment complex parking lot.   Although appellant had told Castanon they could do the drug buy in the parking lot, he told appellant that Medina had refused to take the cocaine into the parking lot.   At Castanon's insistence, appellant went into an apartment to question Medina about whether he would take the cocaine out of the apartment.   At the same time, Castanon discussed the safety difficulties with Felan, another undercover officer who was helping with the drug buy;  the two agreed to go into the apartment.   They informed Special Weapons and Tactics Unit officers in the area that they would be going inside and would be giving the SWAT team information on exactly where to find the location.

Castanon called appellant on his cell phone and told him he would agree to go in the apartment.   Appellant said he would meet him in a breezeway at the apartment complex.   From the breezeway, appellant led the two officers to apartment 124.   He knocked on the door, and Medina let them inside.   The apartment was unfurnished.   In the kitchen area there was a counter with a kilo of cocaine and a scale on it.   Castanon introduced Felan, then Felan cut open the package of cocaine to test it.   After Felan said that the cocaine looked “good,” Castanon said that his money was close-by and it would take him two minutes to get it.   Felan and Castanon left the apartment, then Felan called the SWAT team in the area to give them directions to the apartment before he and Castanon left the location.   The SWAT team knocked open the door, arrested appellant and Medina, and seized the scale and the kilo of cocaine.   An officer found a small baggie of cocaine in appellant's shirt pocket.   Castanon had covertly video recorded the events at the apartment complex.

Castanon testified that he never had a phone number for Medina during their drug transactions;  he arranged the buys through appellant only.   He stated that he called appellant on the phone twenty to twenty-five times.   He claimed that he merely returned appellant's calls and called appellant to arrange meeting places and times.

A narcotics expert in the Dallas police department testified that drug selling organizations often have brokers or networkers who hustle customers and bring them to the selling location in exchange for a cut of the money made in the sale.   The officer further testified that during a sale of an amount of cocaine like the one in this case, a person would not be allowed to be in the room unless he was involved in the sale himself.

Appellant testified in his own defense.   He claimed the only drug deals he ever participated in were the ones involving Castanon.   He works as an electrician.   Appellant stated that when he learned at a party that Castanon was looking for a person who would sell him drugs, he agreed to take him to Medina.   According to appellant, he had known Medina for approximately five years but did not have a “close relationship” with him.   Appellant explained that he knew Medina was a drug dealer so he got Castanon in contact with him “so they could come together and make a deal.”   He claimed he did not know at the time that “making a deal” was illegal.   Appellant claimed he does not sell drugs and has never been in possession of large quantities of drugs.   He further claimed he did not know if Medina was going to give him any money for his part in the marijuana deal.   Appellant admitted he handled the marijuana but claimed it was just “to look at it.”   He initially claimed that he received no money for his participation in the marijuana deal but later admitted he received $150.

Appellant admitted giving Castanon his phone number when Medina asked him to do so.   Appellant assumed this was to protect Medina.   Once they exchanged numbers, appellant claimed, Castanon called him “regularly” to see if they had the cocaine for a deal.   Appellant also testified that he was hoping Medina would give him money for the cocaine deal but he did not “anticipate” that he would.   He admitted it was possible he told police he was going to get $200 for helping with the deal.   Appellant was aware that the deal involved $19,000.   He stated that he stayed in the apartment with Medina for approximately twenty minutes before Castanon arrived at the apartment complex.   Appellant claimed he would not have participated in the deal if Castanon had not called him so frequently.   He acknowledged, however, that he never told Castanon to stop calling him.

Discussion

In his two points of error, appellant claims the evidence against him is legally and factually insufficient to support the jury's implicit rejection of his entrapment defense.   A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he aids or attempts to aid the other person in committing the offense.   See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon Supp.2003).   It is a defense to prosecution that the defendant engaged in the charged conduct 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.   Id. § 8.06(a).   Conduct that merely affords the defendant an opportunity to commit the offense does not constitute entrapment.  Id. Generally, a defendant's testimony alone cannot establish entrapment as a matter of law because, absent unusual circumstances, the jury is almost always entitled to disbelieve that testimony.  Hernandez v. State, 161 S.W.3d 491, 499 (Tex.Crim.App.2005).

In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007).   The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony.   Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.).

In a factual sufficiency review, we consider all the evidence to determine whether it is so weak that the fact finder's verdict seems clearly wrong and manifestly unjust or whether, considering conflicting evidence, the verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence.   See Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App.2007).   A clearly wrong and manifestly unjust verdict shocks the conscience or clearly demonstrates bias.   See id.   In a factual sufficiency review, we may substitute our judgment for the fact finder's on the issues of the weight and credibility to be given to witness testimony only to a very limited degree.   See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006).

Here, Castanon merely inquired about who could help him find a drug dealer, and appellant volunteered.   Appellant agreed to give Castanon his phone number for the purposes of negotiating the drug deals, and he was paid $150 for his part in the marijuana deal.   He was also hoping to be paid for his part in the cocaine deal, and he never told Castanon to stop calling him.   He readily participated in the ongoing drug sales between Castanon and Medina.   Repeated telephone calls are not sufficient to induce a person to commit an offense if the person is not already so disposed.   See Sebesta v. State, 783 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd).   After reviewing all the evidence under the applicable standards, we conclude the evidence is legally and factually sufficient to support the jury's rejection of appellant's entrapment defense.   We overrule appellant's two points of error.

We affirm the trial court's judgment.

FOOTNOTES

FN1. The officer defined a trap as an apartment or house where smaller amounts of drugs are sold constantly for “quick money.”.  FN1. The officer defined a trap as an apartment or house where smaller amounts of drugs are sold constantly for “quick money.”

JOSEPH B. MORRIS JUSTICE