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Click here for the full text of this decision FACTS:A bail bondsman in Cameron County, Michael Garza, contacted Rebecca Rubane, an assistant district attorney, to tell her that one of his clients, Xavier Resendez, had asked if there was a way to have the cocaine possession charges against him worked out “under the table.” Garza agreed to phone Resendez and record the conversation in a sting operation. During the phone conversation, Garza told Resendez that he had a number and name for him. Resendez did not understand what Garza meant until Garza said something about doing something “under the table.” Once he did understand, Resendez took down the name and number, both of which belonged to Rubane’s boyfriend, who was part of the sting. Resendez contacted the boyfriend on several occasions, arranging payment amounts and delivery of $7,800. Resendez was then charged with bribery with enhancement. He was convicted and sentenced to 15 years and a fine of $5,000. On appeal, Resendez says that he was entrapped. He also says the trial court made improper comments and remarks during trial, and he says his counsel was ineffective. HOLDING:Affirmed. The court first rejects the state’s argument that Resendez has waived his right to challenge the sufficiency of the evidence when he admitted guilt during the punishment phase. The court agrees that this is the general principle of the De Garmo doctrine, named for De Garmo v. State, 691 S.W.2d 657 (Tex. Crim. App. 1985), which says that a defendant who admits guilt at the punishment phase of trial waives his right to bring a sufficiency challenge of the verdict on appeal. The court finds the De Garmo doctrine was not meant to apply to challenges to the legal sufficiency of the verdict. The high court’s opinion in Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998), pointed out a basic unfairness in this doctrine, that if the defendant admits guilt at the punishment phase, the De Garmo doctrine prevents an appeal. However, if the defendant continues to deny guilt, the potential consequences include punishment for perjury and a potentially longer sentence for failure to show remorse. If the defendant tries to avoid this problem by refusing to testify at all during the punishment phase, the opportunity is lost for the defendant to give the jury meaningful mitigating information that only the defendant can provide. The court thus finds that with Leday in mind, Resendez did not waive his right to challenge the legal sufficiency of the jury’s decision regarding an entrapment defense. The court then turns to Resendez’s argument that he was entrapped. The court points out that entrapment is not an affirmative defense, but is instead a defense to prosecution, so Resendez has the initial burden to produce evidence raising the defense. To satisfy the requirements of the entrapment defense, a party must produce evidence demonstrating 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. The court finds that, though, Resendez at first didn’t know what Garza was talking about at first, once he did figure out what Garza meant, he vigorously assented and then began asking for detailed instructions. He also made the call to arrange the bribe, came to prearranged meetings, gave the agent $7,800 and began arranging for additional bribes on behalf of two other people. The court finds the comments made by the trial court, such as admonishing Resendez’s attorney to “quit testifying,” were not statements of the judge’s opinion of the case. Similarly, Resendez’s attorney’s failure to object to these comments, since they were not improper opinions, did not amount to ineffective assistance, either. OPINION:Garza, J.; Valdez and Justices Rodriguez and Garza

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