Opinion
No. 04-17-00389-CR
05-16-2018
Yvonne STRIETER, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 15, Bexar County, Texas
Trial Court No. 532470
The Honorable Robert Behrens, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice AFFIRMED
Appellant Yvonne Strieter appeals her conviction for prostitution. On appeal, Strieter argues her conviction should be reversed because she was entrapped. We affirm the trial court's judgment.
BACKGROUND
Strieter was charged with the offense of prostitution. At trial, the jury heard testimony from San Antonio Detective Joey Vidal, who testified he was investigating prostitution activity. Detective Vidal stated he was working in an undercover capacity and driving alone in an unmarked police vehicle when he saw Strieter walking along the street. He contacted his "catch team" — a group of uniformed officers who were working with him — to notify them that there was a prostitution suspect walking along the street. Detective Vidal stated he told his "catch team" he was going to attempt to contact Strieter and asked his team to watch his interaction with her. Detective Vidal testified he was not wearing a recording device.
According to Detective Vidal, he pulled up next to Strieter and honked his horn. Strieter stopped, approached his driver's seat window, and asked for a ride. Detective Vidal testified he told Strieter, "No disrespect but I am looking to get my d___ sucked." He asked if $40.00 would be enough money for the service. Detective Vidal stated Strieter agreed and got into his vehicle.
The jury also heard testimony from Strieter, who testified she was walking to the bus stop when Detective Vidal honked at her. Strieter stated the detective asked if she needed a ride. Because he did not look dangerous, Strieter agreed to accept his offer. According to Strieter, Detective Vidal told her he had $40.00 and asked whether she would like to "hang out." Strieter testified she believed he was asking whether she wanted to grab a drink with him. Strieter agreed. She then stated they began talking about oral sex, and he asked her whether she would perform oral sex. She replied, "why not." Thereafter, Detective Vidal unbuttoned his belt and pulled down his pants. Strieter testified she was surprised and scared because "I wasn't expecting that." She further testified she never would have entered the vehicle if she had known Detective Vidal's intentions. Strieter also stated she never agreed to accept money from Detective Vidal for any reason.
The jury ultimately convicted Strieter of prostitution, and the trial court sentenced her to eighteen days' confinement. This appeal followed.
ANALYSIS
On appeal, Strieter raises one point of error, contending her conviction should be reversed because she was entrapped. According to Strieter, "the case against her was only made through the entrapment by Detective Vidal." In support of her contention, Strieter points out the absence of any recording equipment, arguing that if the interaction had been recorded, "a review of the conversation clearly indicates that he induced, entrapped, and even manipulated [her.]" In response, the State contends Strieter failed to preserve this point of error for appeal because at no point during the trial did she raise the defense of entrapment.
Standard of Review and Applicable Law
Entrapment is a defense to prosecution and is established if a defendant can persuade the fact finder that she committed the offense because she was induced by a law enforcement agent using persuasion or other means likely to cause a person to commit the offense. TEX. PENAL CODE ANN. § 8.06(a) (West 2011); Resendez v. State, 160 S.W.3d 181, 188 (Tex. App.—Corpus Christi-Edinburg 2005, no pet.). "Whether a defense is raised by the evidence is a sufficiency question reviewable on appeal as a question of law." Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007). A defense is raised by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that the element is true. Id. at 657-58.
As a general rule, a defendant has the right to an instruction on any defensive issue raised by the evidence, irrespective of whether such evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of this evidence. Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991); Aleman v. State, 497 S.W.3d 518, 526 (Tex. App.—San Antonio 2016, no pet.). However, a defendant must either object to the court's charge that does not contain an instruction on the defense or make a specific request for an instruction on the matter to preserve appellate review of issues relating to the defense. See Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998) (holding that to be entitled to instruction on defensive issue, defendant must object to absence of instruction in court's charge or otherwise bring matter to court's attention); Robert v. State, 613 S.W.2d 291, 293 (Tex. Crim. App. 1981) (pointing out record does not show defense of entrapment developed at trial); One 1984 Ford, VIN No . 1FABP43F7EZ116686 v. State, 698 S.W.2d 279, 285-86 (Tex. App—Fort Worth 1985, no writ) ("This defense [entrapment] is to be determined by the fact finder, in this case the trial judge, and cannot be raised for the first time on appeal."); cf. Donnell v. State, 148 S.W.3d 674, 676 (Tex. App.—Beaumont 2004, no pet.) (holding insanity defense may not be raised for first time on appeal) (citing TEX. R. APP. P. 33.1).
Application
A review of the record in this case reflects that at no point did Strieter raise the defense of entrapment during the trial. Moreover, the jury charge did not contain an instruction on the law of entrapment, and Strieter neither objected to the jury charge nor requested an instruction on the defense of entrapment. See Posey, 966 S.W.2d at 63; Robert, 613 S.W.2d at 293. Accordingly, we hold Strieter cannot raise any complaint on appeal with regard to the defense of entrapment. See TEX. R. APP. P. 33.1(a); Posey, 966 S.W.2d at 63; Robert, 613 S.W.2d at 293; see also Suell v. State, No. 12-07-00193-CR, 2008 WL 836557, at *1 (Tex. App.—Tyler 2008, no pet.) (mem. op., not designated for publication) (holding appellant may not raise defense of entrapment for first time on appeal when review of record shows he did not present entrapment defense at trial or object to jury charge, which lacked entrapment instruction). We therefore overrule Strieter's complaint regarding entrapment. See Posey, 966 S.W.2d at 63; Robert, 613 S.W.2d at 293.
CONCLUSION
Based on the foregoing, we overrule Strieter's sole point of error and affirm the trial court's judgment.
Marialyn Barnard, Justice Do Not Publish