COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and ALCALA, JJ., joined.
After rejecting his entrapment defense, a jury convicted appellant of three drug offenses. On appeal, he complained that the trial judge reversibly erred by not instructing the jury accurately on his entrapment defense because the application instruction did not list inducement by the confidential informant as well as inducement by an undercover officer. The court of appeals, relying on Posey v. State, held that appellant's failure to request that specific application instruction, or object to its omission, forfeited the issue on appeal.
A confidential informant ("Jerry") told Special Crimes Unit Investigator Marshall Whitlock that appellant was a drug dealer in Tarrant County who could deliver a large quantity of methamphetamine to Johnson County. Undercover Officer Whitlock contacted appellant and arranged to purchase one ounce of methamphetamine from him for $1,400. They agreed to meet on August 5th at a Waffle House in Johnson County.
Officer Whitlock wore a recording device that captured some video, and all of the audio, of the drug deal. Appellant provided the drugs, the pair weighed them, and then appellant counted the money. Officer Whitlock asked appellant about the quality of the drugs, and appellant told him, "In all reality, dude, if there is an issue, let me know and I will fix it." Appellant was relaxed and "talked about his ability to obtain more than what was purchased that day." He offered Officer Whitlock advice on how to "dub" the drugs out, thus cheating the buyer and making more money. Appellant also explained that "I have a real sweet deal going on at Fantasy Ranch where I get to do all the business I want and the managers all look the other way and no one cares." He talked about his desire to cut out the middle-man and bragged about dealing in "meth," "ice," and "coke."
A couple of days after the initial sale, appellant contacted Officer Whitlock, texting, "Were u going to need more ice this week?" Eventually, they made a deal for another ounce of methamphetamine. Just hours before the scheduled August 19th meeting, Officer Whitlock doubled his order to test appellant's connections. Appellant came to the Waffle House with the two ounces, and, as appellant was counting the money, Officer Whitlock asked him about buying a "QP" — a quarter pound. "QP" was the code word for the "bust" team to come in and arrest appellant, which they did. Besides the two ounces, appellant had three plastic bags of marijuana on him and another 1.32 grams of methamphetamine in his car. This "buy-bust" was also recorded.
Appellant admitted delivering the drugs, but he raised the defense of entrapment to the first sale: "Jerry" had induced him to sell drugs. Appellant testified that he and his wife have a critically ill toddler and no health insurance. Appellant earned too much money for the couple to qualify for Medicaid, but too little to afford a policy covering pre-existing conditions. The couple split up, so that his wife would qualify for assistance as a single mother. Appellant also said that he was in danger of losing the salesman job he had held for several years. Depressed and lonely, appellant began going to the Fantasy Ranch — a Tarrant County topless bar — to drink and talk to people.
Appellant testified that "Jerry" gave him $500. When appellant asked him how he kept his wallet full, "Jerry" introduced him to both Dreamer — a dealer — and Officer Whitlock — a "buyer." Dreamer supplied appellant with the methamphetamine that he sold to Officer Whitlock. Appellant made $200 for the first delivery,
Appellant testified that the State failed to offer some of the text messages between himself and Officer Whitlock, including "the one where I had Whitlock begging me to come back up there and do a delivery for him." Still, appellant admitted that he initiated the second deal: "I was not induced on the second one ... I was not forced.... They flashed money in front of me and I needed it." He also admitted to selling cocaine and marijuana.
Appellant said that he sold drugs to six or seven people at Fantasy Ranch, beginning toward the end of July before any delivery to Officer Whitlock. He said that "Jerry" suggested the first sale, but his comfort with the drug business quickly grew:
Still, appellant insisted that the dealer persona he presented to Officer Whitlock was an act: "I've been trained my entire life in customer service, and that is just how I react to people. I'm always friendly. I'm always nice. I'm always trying to be helpful to people."
Although the record does not reflect whether appellant requested it, the trial judge included abstract and definitional instructions concerning the defense of entrapment.
Appellant did not object to the entrapment instruction as given by the trial judge. The jury rejected appellant's entrapment defense and convicted him of two counts of delivery of a controlled substance and one count of possession of a controlled substance. He was sentenced to imprisonment for 10 years, 25 years, and 5 years, respectively.
On direct appeal, appellant claimed that "[a] missing instruction on inducement by confidential informants impermissibly narrowed the facts under which the jury could find entrapment, undercutting Appellant's defense and causing egregious harm." Appellant argued that inducement by "Jerry" (as well as Officer Whitlock) should have been included in the application paragraph.
The court acknowledged in a footnote that the jury charge did include an instruction on entrapment by a law-enforcement officer.
Appellant petitioned this Court for review, arguing that the court of appeals should have analyzed the alleged error under Almanza.
The trial judge is "ultimately responsible for the accuracy of the jury charge and accompanying instructions."
However, if the trial judge does charge on a defensive issue (regardless of whether he does so sua sponte or upon a party's request), but fails to do so correctly, this is charge error subject to review under Almanza.
In a short opinion, the court of appeals held that appellant had forfeited his sole issue on appeal under Posey. But this case is not like Posey. Posey had complained on appeal that the trial judge reversibly erred by not sua sponte instructing the jury on the defense of mistake of fact. Posey had not requested this instruction, nor had he objected to its absence in the jury charge, and the trial judge gave no mistake-of-fact instruction whatsoever. There was no error, because mistake of fact had not become "law applicable to the case." But, as we held in Barrera v. State, once the jury is charged on a defensive issue, a flaw in that charge is error:
In this case, the jury charge contained the correct abstract definition of the entrapment
We agree with appellant's argument on direct appeal that the jury should have been instructed to find appellant not guilty if it believed that he was induced to commit the first drug sale either "by Jerry, acting as a law enforcement agent," or by Marshall Whitlock, or by both.
Appellant did not object to the jury charge at trial, so he must show that he suffered egregious harm from the charge error to be entitled to reversal.
First, the jury charge indirectly covered inducement by "Jerry" because (1) the definition of "law enforcement agent" informed the jury that "Jerry" was "a person acting in accordance with instructions from a law enforcement agent," for purposes of the entrapment defense, and (2) the application charge covered inducement by "Marshall Whitlock, a law enforcement officer, by persuasion or any other means," and the jury was free to consider "Jerry" as Officer Whitlock's "means."
Turning to the second Almanza factor — the evidence at trial — appellant testified to initial inducement by "Jerry," and further persuasion by Officer Whitlock. Appellant's sole defensive theory was entrapment, but that defense applied only to one of the three drug charges, and it was a marginal theory at best. As the State points out, the prosecutor "thoroughly impeached appellant's tale of woe on cross-examination,"
As for the third Almanza factor — the arguments of counsel — neither the State nor the defense suggested that there was any distinction between "Jerry" and Officer Whitlock. The State urged the jury to reject the defense, not because "Jerry" was not a "law enforcement agent," but because appellant was in it for the money. The defense characterized the entrapment as part of a case of overreaching: STOP used a confidential informant, an agent of law enforcement, to lure the vulnerable appellant from Tarrant County to Johnson County — a place to which he had never before been — to make a drug case for Johnson County.
Applying a straightforward Almanza analysis, we conclude that appellant's rights were not harmed at all, much less "egregiously harmed," by the failure to specifically name "Jerry" in the entrapment application paragraph.
Although the entrapment application paragraph should have listed "Jerry" as well as Marshall Whitlock, the jurors were well aware of "Jerry's" role as a lawenforcement agent acting at Officer Whitlock's behest from (1) the definitional section of the entrapment charge, (2) the evidence, and (3) the parties' arguments. Therefore, while we disagree with the court of appeals that appellant failed to preserve this jury-charge issue, we conclude that appellant has failed to show egregious harm, and we affirm the judgment of the court of appeals.
MEYERS, J., did not participate.