text:
    STATE of Tennessee, Appellee, v. Michael Allen CARTER, Appellant.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Sept. 11, 1984.
    Permission to Appeal Denied by Supreme Court Nov. 13, 1984.
    David H. King, King & Williams, Franklin, for appellant.

      William M. Leech, Jr., Atty. Gen., Jerry L. Smith, Asst. Atty. Gen., Nashville, Larry D. Drolsum, Asst. Dist. Atty., Franklin, for appellee.
   OPINION

TATUM, Judge.

The defendant, Michael Allen Carter, was convicted of aggravated assault and sentenced to a term of not less than 2 years nor more than 2 years in the State penitentiary. He says that the trial court erred in failing to grant his motion for a judgment of acquittal at the close of the State’s proof and that the verdict of the jury is not supported by the evidence. We find no reversible error and affirm the judgment of conviction.

The State’s proof established that on the night of May 17, 1981, the victim went to Rose’s Pizza Place in Fairview, where the defendant and his girlfriend were employed. After the victim danced with the defendant’s girlfriend, the defendant invited the victim outside to talk with him. The victim accepted, not realizing that the defendant felt anger or animosity toward him. The victim testified that he was in front of the defendant when he went out the door. The victim said that as soon as he got out the door, the defendant struck him from behind and that he remembered nothing else until he awoke in the hospital. He did not see the object with which he was struck, but, from the severity of his wounds, concluded that it was a blackjack or a similar instrument.

Other State’s witnesses saw the defendant’s uncle and several other men struggling to take the blackjack away from the defendant within a minute after the victim and the defendant went out the door. After the blackjack was taken from the defendant, the victim was brought inside the pizza place with four teeth missing. Blood was coming from his mouth and ears.

The defendant moved for judgment of acquittal at the conclusion of the State’s proof, which was overruled by the trial judge. The defendant then testified and introduced other evidence. The defendant testified that he did, in fact, strike the first blow with the blackjack as soon as the parties exited the door, although he was facing the victim at the time. He testified that he obtained the blackjack from his uncle immediately before he and the victim went outside. He obtained the blackjack for the purpose of whipping the victim.

The first issue is that the trial court erred in failing to grant the motion for a judgment of acquittal at the close of the State’s proof. The motion made at the conclusion of the State’s proof was waived when the defendant testified and introduced other evidence after the motion was overruled. Mathis v. State, 590 S.W.2d 449 (Tenn.1979). The motion was renewed at the conclusion of the introduction of all of the proof and was again overruled. We, therefore, consider all of the evidence, including the defendant’s testimony that he did indeed strike the victim with a blackjack.

The defendant says that he was convicted of an offense for which he was not indicted. The indictment charges the following:

“(t)hat MICHAEL ALLEN CARTER heretofore, to wit, on the 17th day of May, 1981 before the finding of this indictment, in the county aforesaid, unlawfully and feloniously did assault another, KENNETH W. BRAZZELL, while displaying a deadly weapon contrary to Tennessee Code Annotated § 39-601 and against the peace and dignity of the State of Tennessee.”

In his brief, the defendant quotes T.C.A. § 39-601 as it appeared before the enactment, of Chapter 142, Public Acts of 1977. This Act deleted the old language and substituted a new statute. The current law has been recodified as T.C.A. § 39-2-101. Subsection (b)(3) of Section 39-2-101 provides that any person is guilty of an aggravated assault who “Assaults another while displaying a deadly weapon....” This is the offense for which the defendant was indicted and convicted. The jury foreman reported that the jury found the defendant “guilty of aggravated assault, with a deadly weapon.” The trial judge questioned the foreman and ascertained that it was the intent of the jury to find the defendant guilty “as charged.” The trial judge sentenced the defendant for “aggravated assault as charged in the indictment.”

The overwhelming and undisputed evidence established that the defendant struck the victim in the head with the blackjack. This evidence supports the jury’s finding that the defendant displayed the blackjack when he struck the victim with it. The word “display” is defined by the Random House College Dictionary, Revised Edition, as meaning “to show; exhibit; make visible...” The defendant’s open and visible use of the blackjack was a display of the weapon, regardless of whether the victim or any of the witnesses saw it. The weapon was there to be seen had anyone happened to look in that direction.

Contrary to the defendant’s insistence, we hold that the defendant was not found guilty of an offense with which he was hot charged. We find that the evidence and the jury verdict conformed to the charge in the indictment.

The minute entry on the final judgment erroneously stated that the jury found the defendant “guilty of aggravated assault while in possession of deadly weapon...” The finding of the jury was that the assault was committed while the defendant was “displaying” a deadly weapon instead of being in “possession” of a deadly weapon. We accordingly correct the judgment by striking the word “possession” and placing in lieu thereof the word “displaying.”

We find evidence upon which a rational trier of fact could be convinced beyond a reasonable doubt of the defendant’s guilt of the offense for which he was indicted. The evidence meets the standard required by Rule 13(e), T.R.A.P.

With the minute entry of the judgment corrected we affirm the judgment below.

DUNCAN and CORNELIUS, JJ., concur.


source: Caselaw Access Project

author: TATUM, Judge.

license: Public Domain

text:
    STATE of Tennessee, Appellee, v. Alvin Emmett LAND, Jr., Appellant.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Oct. 25, 1984.

      Hugh R. Poland, Jr., Poland & Poland, Clarksville, for appellant.
    W.J. Michael Cody, Atty. Gen., David M. Himmelreich, Asst. Atty. Gen., Nashville, Patrick McCutchen, Dist. Atty. Gen., Clarksville, for appellee.
   OPINION

TATUM, Judge.

The defendant, Alvin Emmett Land, Jr., was convicted of grand larceny and sentenced to serve a 4-year term in the State penitentiary. He raises two issues on this appeal: (1) that the evidence was insufficient to support the verdict, and (2) that the court committed reversible error by allowing into evidence the results of a polygraph examination of the defendant. We find no reversible error and affirm the judgment below.

We first consider the issue attacking the sufficiency of the evidence. Daniel Joe Armstrong testified that he observed his boat, motor and trailer parked in its usual spot in front of his apartment building at approximately 1:00 A.M. on May 12, 1983. Around 4:30 A.M. that same morning, Mr. Armstrong noticed that his boat, motor and trailer were missing.

At approximately 3:30 A.M. on May 12, 1983, Officer Thomas Nelson of the Montgomery County Sheriff’s Department stopped the defendant and asked for his driver’s license, car registration and registration for the boat that he was towing. The defendant could produce only an expired driver’s license. He told the officer that he owned both the boat and the car and that he had, but could not find, proper registration papers. Moments after allowing the defendant to leave, the officer received a dispatch describing a stolen boat, motor and trailer matching those that he had seen the defendant towing. The officer then caught up with the defendant, stopped him and made an arrest. After being arrested, the defendant signed a statement to the effect that he had found the boat around 10:00 o’clock the previous night while he had been lost on a back road. He thought the boat was stolen because four white males ran away from the rear of the boat when he happened upon them.

The defendant offered no proof other than his own testimony. He testified as follows:

.. On May the 11th, or you can say the 12th, that’s when I got arrested. I was coming in from Texas and I missed Dickson and Waverly exit so I went all the way down to Nashville, took Nashville exit. From there I come up through, I guess, 41-A, coming from Nashville. From there I decided to take one of the side roads coming in through Gratton Road instead of taking the highway all the way around. From there I was coming up one of the ravines or valley, as Mr. Nelson stated, and I seen this truck with people in it take off. From there I decided the boat was stolen. From there I picked it up and put it on my car hitch. It did not fit the ball of my car. From there I tied it on with the rope that was there on the boat itself, walked around the boat and found some nuts. From there I took the boat and was headed up the road there. I seen Mr. Nelson come or didn’t see him but his lights were shining. From there I slowed down ‘cause my car was giving me a little trouble. From there Mr. Nelson turned on his lights and stuff and I waved him around. From there he came on the speaker and said, ‘Please stop your car.’ From there I stopped, we got out and we talked, and a few minutes later I told him where I was going and everything and he asked me for papers and stuff on my car and everything and I told him well, they are in my black bag, somewhere in my car. From there he let me go and then, I guess about a fourth of a mile down the road, he stopped again and said I was under arrest. From there I didn’t say no more.”

In claiming that the evidence was insufficient to support the verdict, the defendant emphasizes that no one witnessed the boat, motor and trailer being removed from Mr. Armstrong’s premises. He argues that his own testimony, in concert with the statement he gave to the police, gave a reasonable account of how he came into possession of these goods, and, as such, was sufficient to raise a reasonable doubt in the minds of rational jurors.

There is no validity in the defendant’s argument. He is guilty of larceny by his own testimony. The offense of larceny does not require that goods be taken from the possession of the true owner. Larceny is defined as “the felonious taking and carrying away the personal goods of another.” T.C.A. § 39-3-1101. To be guilty of larceny, a defendant must only take possession from another, including from a thief.

“The fact that the person from whom the property was stolen himself acquires it illegally is not a defense in a prosecution for larceny.... (I)t is immaterial that the property taken from the possessor was stolen by him or was obtained by him from a thief.”

52A C.J.S., Larceny, § 19 (1968) (quoted with approval in Campbell v. State, 2 Tenn.Crim.App. 39, 450 S.W.2d 795, 804 (1969)).

We further note that Tennessee follows the general rule that an unsatisfactorily explained possession of very recently stolen property may, in light of surrounding circumstances, support a conviction of larceny. State v. Hatchett, 560 S.W.2d 627 (Tenn.1978). The inference of guilt which may arise from the proven fact of possession of recently stolen property is not destroyed by contradictory evidence and does not vanish when a defendant provides explanation; rather, the inference remains to be weighed by the jury against the defendant’s explanation. Bush v. State, 541 S.W.2d 391 (Tenn.1976). Both the State’s version of the facts and the defendant’s version establish that the defendant is guilty of grand larceny. The evidence more than meets the standard required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Rule 13(e), T.R.A.P.

The defendant next contends that the trial court committed reversible error by allowing into evidence the testimony of a polygraph examiner regarding the results of a lie detector test given the defendant. As a result of settlement negotiations, the defendant and the State entered into a written agreement regarding the polygraph test. The State agreed to dismiss the charges if defendant passed the test without the use of drugs. Defendant, in turn, agreed to stipulate to the admissibility of the test results if the results favored the State. The agreement expressly stated that defendant was aware “that lie detector tests are not admissible in the absence of (his) agreement.” Courts faced with the same question with which we are confronted have reached different conclusions on the issue of whether the results of lie detector tests should be admissible in evidence upon prior stipulation. See generally Annot. 53 A.L.R.3rd 1005 (1973) (Supplement 1984).

Tennessee follows the general rule that the results of a lie detector test are inadmissible in evidence and that the circumstances surrounding the taking or not taking of such tests are likewise inadmissible. Hembree v. State, 546 S.W.2d 235, 240 (Tenn.Crim.App.1976). The reason for the rule is that polygraph tests are “inherently unreliable.” State v. Plummer, 658 S.W.2d 141, 143 (Tenn.Crim.App.1983). In our view, evidence which is inherently unreliable, such as a polygraph test, should not be admitted. A stipulation does not cure the infirmity of unreliability. This type of evidence, if admitted on behalf of either the State or the defendant, could frequently result in erroneous verdicts. We think that this evidence is dangerous in that it could easily convict the innocent or acquit the guilty.

The State argues that to ignore the prior agreement regarding the results of the polygraph examination would be to allow the defendant a double chance to negate its effect, saying that the defendant would have alleged prosecutorial misconduct if he had passed the test and the State had refused to dismiss the indictment. The State says that since it would have been bound by the agreement, that the defendant should also be bound. We hold that neither the State nor the defendant was bound by the stipulation for the reasons above stated. We reiterate that the results of polygraph examinations are not admissible in Tennessee on behalf of either the State or the defendant, over timely objection, even by prior stipulation.

We must yet determine whether, considering the whole record, the error more probably than not affected the judgment. See Rule 36(b), T.R.A.P. As stated, the defendant was apprehended immediately after the theft while towing the stolen property. He falsely told the officer that the property belonged to him and that he had documentary evidence of ownership. Further, the defendant, by his own testimony at trial, is guilty of the offense, as previously discussed. We can find no way in which the evidence might have affected the judgment under the circumstances. Nor would the error result in prejudice to the judicial process. It results that we must find the error to be harmless.

The judgment of conviction is affirmed.

O’BRIEN and DAUGHTREY, JJ., concur.


author: McGEE, Justice. ROBERTSON, Justice, McGEE, Justice.

text:
    KELLY ASSOCIATES, LTD., Petitioner, v. The AETNA CASUALTY AND SURETY COMPANY, Respondent.
    No. C-2794.
    Supreme Court of Texas.
    July 11, 1984.
    On Rehearing Oct. 31, 1984.

      Bankston, McDowell & Olivier, D. Craig Olivier and John T. McDowell, Houston, for petitioner.
    Fulbright & Jaworski, Osborne J. Dykes and Roger Townsend, Houston, for respondent.
   McGEE, Justice.

This is a summary judgment case involving the interpretation of certain terms in a stockbroker’s blanket fidelity bond. Kelly Associates, Ltd., sued its insurer, the Aet-na Casualty and Surety Company, after Aetna refused payment on a claim made under Kelly’s blanket bond. Both parties moved for summary judgment. The trial court denied Kelly’s motion and granted Aetna’s motion that Kelly take nothing by its suit. The court of appeals affirmed the trial court judgment. 662 S.W.2d 777. We reverse the judgments of the courts below.

Prior to September 26, 1981, Kelly Associates, Ltd., a limited partnership organized pursuant to the Texas Uniform Limited Partnership Act, Tex.Rev.Civ.Stat.Ann. art. 6132a (Vernon 1970), conducted business as a discount stock brokerage. The partnership consisted of two general partners and eleven limited partners. Kelly leased office spaces in Houston, Dallas, and Austin, and employed approximately 80 workers.

Kelly was insured under a stockbroker’s blanket bond issued by Aetna, which protected Kelly from the misappropriations of its employees. The bond covered only those losses discovered during the policy period. The bond, issued by the insurance company, was a printed form contract which contained the following standard provision:

This bond shall be deemed terminated or cancelled as an entirety ... immediately upon the taking over of the Insured by another business entity.

On September 26, 1981, Kelly’s general partners, with the authorization of the limited partners, executed a “Purchase Agreement” and “General Conveyance, Bill of Sale and Assignment", the effect of which was to transfer a good part of the assets and business of Kelly to Fidelity Brokerage Services, Inc., a Massachusetts firm.

Two months later, on November 27, 1981, Kelly discovered that a former employee had fraudulently misappropriated roughly $200,000. Kelly notified Aetna of its discovery but Aetna rejected the claim on grounds that the September 25th transaction constituted a takeover of Kelly by Fidelity, terminating the bond. The sole question raised by Aetna’s motion for summary judgment and Kelly’s response is whether, on the November 27th discovery date, Kelly had been “taken over” within the meaning of the termination clause. The answer to this question depends upon the construction of the words “taking over.”

The contract by which Kelly undertook to sell its business to Fidelity provided for a conversion process to begin September 25th, the “Closing Date.” The process was to extend through a “Closing Period” during which time Kelly’s accounts were to be submitted to Fidelity for their acceptance or rejection, and was to end on the “Closing Completion Date” of June 25, 1982. The accompanying General Conveyance provided for the transfer of “All of the Subject Business of [Kelly],” all Kelly’s accounts, except those rejected by Fidelity, and all of Kelly’s “privileges, franchises and records.” Fidelity acquired all of Kelly’s furniture, fixtures, computers, records, leases, rental agreements, the right to Kelly’s name, trademarks, goodwill, and some of its customer accounts.

Several indices of “doing business,” however, existed on behalf of Kelly subsequent to September 25,1981. For example, Kelly retained all preexisting expenses and liabilities. It retained entitlement to all revenues from transactions made prior to September 25th and from accounts not accepted by Fidelity. As of September 25, Kelly retained membership in the New York Stock Exchange and National Association of Securities Dealers (NASD). According to Kelly, it retained 1.1 million dollars of its liquid assets after the sale, totalling some 73 percent of Kelly’s book value assets as of the sale date. One of the two general partners testified that Kelly had only transferred 27 percent of its total assets to Fidelity. Kelly also retained all of its automobiles.

The Kelly limited partnership continued to operate as “Kelly Associates Ltd.” after September 25, 1981, and used the same letterhead and phone number it had prior to that date. After the sale of the business, Kelly released all of its employees, many of whom began work on Fidelity’s payroll, and resigned its stock exchange memberships. It is apparent from the deposition of general partner Lawrence Kelly that the partnership was, at the time of this litigation, in its winding-up stages. Although the contract provided that during the closing period, “Kelly will continue to operate the business of Kelly relating to the Accounts, subject in all respects to direction and control by [Fidelity],” this provision is not of controlling importance. This is because a subsequent provision in the contract states: “[t]he foregoing notwithstanding, ... Kelly shall be responsible for expenses and liabilities incurred, and shall be entitled to revenues (a) relating to the period prior to the Closing Period, (b) relating to any Causally Rejected Accounts, and (c) relating to all transactions effected during the period on or prior to the Closing Date.” (emphasis added). Therefore, Kelly was not subject to the direction and control of Fidelity in all respects and, in particular, was not subject to Fidelity’s control as to the winding-up phase of its business.

Takeover clauses such as the one in issue are standard in bankers’ and brokers’ bonds, but have received little scrutiny by either the courts or commentators. We have found no Texas case that has construed the words “taking over” or “takeover” in an analogous fact situation. In its ordinary meaning, “takeover” means “to assume control or possession of” or to “succeed to the management of.” Webster’s Third New International Dictionary 2332 (1961); see also Black’s Law Dictionary 1304 (5th ed. 1979). The case of National Union Fire Insurance Co. v. Young, 199 So.2d 70 (Miss.1967), involved a termination clause similar to the one at bar. A corporate takeover was found to occur where all the stock and assets of the insured corporation were transferred to another corporation. Since the right to participate in management is one of the property rights inherent in the general partners, a takeover in the corporate sense, by acquisition of a controlling number of voting shares, is not possible in a partnership.

The interpretation of the takeover clause is a question of law for the court. See, e.g., Standard Fire Insurance Co. v. Griggs, 567 S.W.2d 60 (Tex.Civ.App.— Amarillo 1978, writ ref’d n.r.e.); Maryland Casualty Co. v. Golden Jersey Creamery, 389 S.W.2d 701 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n.r.e.); Home Insurance Company v. Enloe, 287 S.W.2d 235 (Tex.Civ.App.—Amarillo 1956, writ ref’d n.r.e.). In the instant case, the parties disagree as to the meaning of the word “takeover” in the context of the insurance policy. Kelly asserts that when the insured entity is a partnership, a takeover can only occur when the partnership is completely terminated, its partners disbanded, and its business wound up and transferred to another entity. In response, Fidelity argues that termination is not a necessary predicate to a takeover and that a takeover may occur with the sale of the partnership’s business.

The case of Ramsay v. Maryland American General Insurance Co., 533 S.W.2d 344 (Tex.1976), is analagous to the case at bar. In Ramsay, this court was confronted with the interpretation of a term used in an insurance policy. The parties agreed that a term used in the exclusionary clause of an insurance policy had a plain and generally accepted meaning but, as here, disagreed as to what that meaning was. This court concluded that while the term “commercial automobile” was normally unambiguous, ambiguity existed because the term was susceptible to more than one reasonable construction. We held that:

It is a settled rule that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer, and especially so when dealing with exceptions and words of limitation_ When the language of a policy is susceptible of more than one reasonable construction, the courts will apply the construction which favors the insured and permits recovery.

Id. at 349. Again, in the case of Glover v. National Insurance Underwriters, 545 S.W.2d 755 (Tex.1977), this court was faced with the interpretation of an ambiguous term used in an insurance contract. In Glover, we held that:

[W]e must adopt the construction of an exclusionary clause urged by the insured as long as that construction is not itself unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent, (citations omitted) ...
[T]he plain language of an insurance policy, like that of any other contract, will be given effect when the parties’ intent may be discerned from that language. But when the language of an insurance contract is ambiguous, that is, is subject to two or more reasonable interpretations, then that construction which affords coverage will be the one adopted.

Id. at 761. These same rules of insurance contract construction were adhered to in Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762, 763 (1953); Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, 381 (1951); Lloyd’s Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605, 609 (1950); United Service Automobile Ass’n v. Miles, 139 Tex. 138, 161 S.W.2d 1048, 1050 (1942); see also Insurance Company of North America v. Cash, 475 S.W.2d 912, 915 (Tex.1971). We find the authority of these cases to be persuasive. Since the term “takeover” in the instant case was susceptible to more than one reasonable construction, we are compelled to apply the construction favoring the insured and permitting recovery.

Furthermore, Kelly could reasonably expect that the bond coverage would extend through the winding-up phase of its business. This was a period in which its affairs were in a state of flux and in which it was as susceptible to employee misappropriation as it was at any other time. Dissolution, winding-up, and termination are distinct phases of a partnership’s existence. Tex.Rev.Civ.Stat.Ann. art. 6132b, § 30 (Vernon 1970). Dissolution does not necessarily terminate the partnership business. •As stated in Woodruff v. Bryant, 558 S.W.2d 535 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.), “[ejven if the business is to be discontinued, the partnership continues to exist, at least for the limited purpose of winding up. It is only upon termination that the final partnership relationship ceases to exist.” Id. at 539. There was no assignment of partnership rights or interests, nor any admission of new partners to the Kelly limited partnership. The same individuals remain in control of the partnership, in its winding-up stages, as did prior to the sale.

While the business of Kelly Associates, Ltd. was effectively transferred to Fidelity, the partnership continues its existence for the purpose of winding up its affairs, which include the fulfillment of its remaining obligations under the sales contract and the collection and distribution of assets to the partners. These functions remain under the sole management of the partners and have not been taken over by Fidelity. The partnership could be victimized by employee misappropriations during winding up just as it could prior to dissolution. We interpret the insurance contract to extend coverage through the winding-up phase of the limited partnership.

The judgments of the courts below are reversed and judgment is rendered that Kelly recover under the terms of the blanket fidelity bond.

ROBERTSON, J., dissents with opinion in which POPE, C.J., and SPEARS, J., join.

ROBERTSON, Justice,

dissenting.

I respectfully dissent. The summary judgment evidence in this case reveals that Kelly Associates, Ltd., was in its winding-up stages when its employee’s malfeasance was discovered. Control of the partnership’s business had been transferred to Fidelity, the acquiring company, two months prior to discovery. Kelly's insurance policy clearly stated that it covered losses sustained at any time but discovered during the policy period, and just as clearly provided that the policy would terminate upon Kelly’s being taken over by another business entity. Therefore, Kelly’s right to recover under the policy hinges on whether the September 25, 1981 transaction was a takeover.

As the majority recognizes, the common meaning of the word “takeover” focuses on continuity of management. First National Life Insurance Company v. Fidelity & Deposit Company, 525 F.2d 966, 969 (5th Cir.1976). Kelly’s stock brokerage business was placed entirely under the direction and control of Fidelity, leaving behind a skeletal legal entity whose only purpose was to disburse its remaining assets to the former partners. Despite this relinquishment of control, the majority holds that management was continuous, and that the partnership was not taken over.

The majority states that several indices of “doing business” existed after the acquisition by Fidelity on September 25, 1981. We do not find in the evidence any indication that Kelly continued to do business “as a broker-dealer in the securities business”, the purpose for which the partnership was formed.

After the sale of the business on September 25th, Kelly released all its employees, many of whom began work on Fidelity’s payroll. Some 30,000 customer accounts were transferred to Fidelity, less than 50 “problem accounts” were retained. General partner Lawrence Kelly stated in his deposition that the only task remaining to be done on behalf of the partnership was to complete the few remaining account transfers to Fidelity and distribute the remaining sale proceeds to the partners, 95% of which had already been distributed. In various communications the general partners referred to the transaction of September 25th as an “acquisition” of Kelly by Fidelity, and the “sale ... of all the assets and business of Kelly Associates, Ltd.” In its notice of discovery of loss sent to Aetna on December 17, 1981, Kelly stated that on September 25th it had “sold all its assets to Fidelity Brokerage Services, Inc.” The employment and noncompetition agreement which general partner Lawrence Kelly signed on September 25th recognizes that Fidelity “proposes to continue to engage in the business heretofore run by [Kelly].”

The fact that Kelly remained a member of the New York Stock Exchange and NASD for a brief period following the takeover is of no significance whatsoever: no business was done by the partnership under its memberships, and the memberships were quickly resigned. The retention of certain cash assets on Kelly’s ledgers after the takeover by Fidelity is also irrelevant. What matters is that the business of Kelly Associates, Ltd., was transferred to Fidelity and placed under its control.

The employee thefts for which Kelly seeks coverage occurred both before and after the September 25th takeover. However, Kelly only seeks recovery for thefts occurring before the takeover. Fidelity filed a claim with its insurer (Fireman’s Fund) for all post-takeover thefts, and recovered its losses. I consider this further evidence that the September 25th transaction was a takeover.

I agree that where terminology is in dispute, the accepted rules of insurance policy construction compel us to adopt the insured’s interpretation, so long as that construction is reasonable. Glover v. National Insurance Underwriters, 545 S.W.2d 755, 761 (Tex.1977). Kelly argues that takeover within the meaning of this policy means “complete takeover.” Kelly argues that under the facts of this case, the partnership would not be taken over until the partnership completely terminated. This construction is unreasonable. Partnerships are capable of change and reformation, including change in management, without termination.

In this case, the entirety of the partnership’s business has been transferred to another business entity, in a transaction which simultaneously placed the managing partners under the control of that entity and prevented the original partnership from continuing existence for any other purpose than to wind up its affairs and terminate. The termination clause at issue became effective upon the taking over of the insured, not upon its termination. I would affirm the judgments of the courts below finding that as a matter of law the sale on September 25, 1981, constituted a taking over of Kelly Associates, Ltd., by Fidelity within the meaning of the bond.

POPE, C.J., and SPEARS, J., join in this dissenting opinion.

ON MOTION FOR REHEARING

McGEE, Justice.

Aetna, in its motion for rehearing, correctly points out that this case should be remanded to the trial court.

Both parties moved for summary judgment in the trial court. Although Kelly has assigned as error the granting of Aetna’s motion for summary judgment, it has not properly preserved the error of the trial court in failing to grant its motion for summary judgment. The amount of damages also must be determined. Therefore, we cannot render judgment, but must remand the case to the trial court. Gulf, Colorado & Santa Fe Ry. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958); Farah Mfg. Co. v. Continental Airlines, Inc., 524 S.W.2d 815 (Tex.Civ.App.—El Paso 1975, writ ref’d n.r.e.).

Respondent’s motion for rehearing is granted in part. The judgments of the courts below are reversed and the cause is remanded to the trial court.

GONZALEZ, J., not sitting.


author: TEAGUE, Judge.

text:
    Anthony Raymond GLASS, Appellant, v. The STATE of Texas, Appellee.
    No. 307-83.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 14, 1984.

      Philip R. Presse, Leon J. Grizzard, Austin, for appellant.
    Ronald Earle, Dist. Atty., and Ralph Graham and LaRu Woody, Asst. Dist. Attys., Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

Anthony Raymond Glass, the appellant on appeal and the defendant in the trial court, attempted in the trial court, through a written motion to suppress, to keep “[a]ny evidence, including contraband, alleged to have been recovered from the Defendant or from the vehicle which the Defendant was driving, after it was stopped by law enforcement officers on or about the 17th day of November, 1979,” from being admitted into evidence at his trial. He was unsuccessful. After a hearing on stipulated evidence, which had been adduced at an examining trial, the trial judge overruled the motion. Thereafter, appellant waived his right to trial by jury and entered a plea of not guilty to the charge of unlawful possession of methamphetamine, a controlled substance, after which the trial court found him guilty. Punishment was assessed at five (5) years’ confinement in the penitentiary, probated, and a fine of $1,000, which was not probated.

Appellant’s sole contention on appeal was: “The trial court erred in failing to grant appellant’s Motion to Suppress, and in admitting evidence at trial which was the fruits of the illegal stop.” He argued under his contention that the initial automobile stop by the police was not supported by reasonable suspicion and that the items recovered from the vehicle he had been driving were the fruits of an illegal stop by the police. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The Austin Court of Appeals, in a unanimous but unpublished opinion by Justice Powers, overruled appellant’s contention and affirmed the conviction. See Glass v. State, No. 3-82-373-CR (T), March 3, 1983. We reverse.

Because of the issue that is presented, we find it necessary to state some of the more prominent facts that led the police officers to stop the vehicle appellant was driving, which stop resulted in the seizure, inter alia, of methamphetamine for which appellant was charged and convicted for possessing.

The facts presented through Officer Ben Rodriguez of the Austin Police Department reflect or indicate that a dispatcher of the Austin Police Department received a telephone call from a person who did not identify himself. The caller notified the dispatcher that occupants of two automobiles, which automobiles were only described by the caller as a brown over beige El Camino and a blue Fairlane, were shooting at each other at or near the intersection of Parker and Oltorf Streets in Austin.

The dispatcher relayed the information that he had received from the anonymous telephone caller, through police radio channels, presumably to all police patrolling units that were situated in that area of Austin.

Patrol Officers Rodriguez and Garza heard the dispatch, after which they immediately proceeded to the intersection. However, after arriving at the intersection, they saw no unusual activity occurring or taking place, such as persons in one vehicle shooting at persons in another vehicle. Nevertheless, they stationed themselves near the intersection. Within three or four minutes, they observed a brown over beige colored El Camino vehicle traveling south on Parker Lane. The officers stopped the vehicle. Garza went to the driver’s side of the vehicle and Rodriguez went to the passenger’s side of the vehicle.

Rodriguez testified that after he went to the passenger’s side of the vehicle, he “noticed” the outside passenger in the car looking at him. To Rodriguez, the passenger “seemed kind of nervous.” Rodriguez also testified: “As I walked up he turned away from me, and I walked up and asked for identification. He was nervous then and made me nervous, so I asked him to get out of the car,” which the passenger did. A search of the passenger compartment of the vehicle appellant had been driving followed, revealing two pistols and methamphetamine, the latter which is the basis of this case.

We first hold that the above facts, that gave rise to Rodriguez and Garza stopping the vehicle driven by appellant, do not rise to the level of probable cause to arrest or probable cause to search either appellant or the occupants of the vehicle or the vehicle itself. This is because an anonymous telephone call, like an anonymous letter, standing alone, will never provide sufficient facts that would authorize a war-rantless arrest or search, which is, per se, unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Something more is required before probable cause to make a warrantless arrest or search is shown to exist. E.g., Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, 541 (1983).

Notwithstanding that we have concluded that we are not presented with sufficient probable cause facts, that would have authorized Rodriguez and Garza to stop the vehicle driven by appellant, we must decide whether sufficient facts were established that would have authorized them to make an investigatory stop short of a warrant-less arrest. We find that such facts do not exist in this record.

In order to justify an investigative stop, Rodriguez and Garza were required by law to meet the standard that justifies the intrusion of an investigatory stop. That standard is that before Rodriguez and Garza were lawfully entitled to stop the vehicle driven by appellant, they had to have specific, articulable facts, which in light of their experience and general knowledge, together with rational inferences from those facts, would reasonably warrant their intrusion on the appellant and the occupants of the vehicle he was driving when they stopped him. See Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S.Ct. 1868, 1880, 1884, 20 L.Ed.2d 889, (1968). Also see Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). Mere suspicions do not meet this test, Hull v. State, 613 S.W.2d 735 (Tex.Cr.App.1981), but neither is absolute certainty required. Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1977) (opinion on rehearing). Under the above facts, we find that the officers were not justified in stopping the vehicle driven by appellant.

“Probable cause to investigate” exists only where the circumstances reasonably indicate that the particular person either has committed or is preparing to commit a crime. However, the inarticulate hunch, suspicion, or good faith of the investigating officer is never sufficient to justify a police officer to order a subject to stop his motor vehicle or to order a subject from his automobile. Otherwise, “[i]f subjective [belief] alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, places, and effects,’ only in the discretion of the police.” Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964); Brown v. State, supra.

In this instance, the record does not reflect when the alleged incident occurred or when the anonymous report was received, and therefore does not show any proximity of time of the stop to the events held by the court of appeals to justify the stop of the vehicle appellant had been driving. Without such proximity in time, it would not be reasonable to conclude, solely on the basis of the match of color and make of the car, that the car stopped was the car involved in the reported incident. Thus, the record does not support a finding that the anonymous tip authorized the stop of the automobile driven by appellant.

Nor do we find that after Rodriguez and Garza stopped the vehicle that was driven by appellant did sufficient facts surface that would have authorized them to order the persons in the vehicle out of the vehicle. Rodriguez’ conclusion from his observation that the passenger was “nervous,” thus causing him to become “nervous,” which caused him to order the passenger from the vehicle, which placed into motion events which led to appellant’s arrest and the charge filed against him, is too tenuous to authorize us to approve a police officer ordering a citizen to leave the motor vehicle in which he might then be situated simply because the officer concluded the citizen was “nervous.” We pause to point out that Rodriguez never amplified on why he thought the passenger appeared to him to be “nervous.” We believe that in this day and time that when a citizen is suddenly facing an imminent confrontation with police officers for unknown reasons, most citizens with nothing to hide will nevertheless manifest an understandable nervousness in the presence of the officer. Not only the guilty,- but the not guilty as well, will react much the same as the outside passenger did in this instance, i.e., exercising a natural impulse. Thus, the appearance of being nervous is as consistent with a person being guilty of having committed or preparing to commit a criminal wrong'as with a person not being guilty of anything more than being in the wrong place at the wrong time. People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 (1970). We again pause, this time to point out that until Rodriguez ordered the outside passenger to remove himself from the inside of the automobile, neither Rodriguez .nor Garza ever witnessed anything that could even be remotely considered wrongful or criminal conduct.

For all of the above reasons, we conclude that the trial' court erred in not granting appellant’s motion to suppress and the court of appeals erred in sustaining the trial court’s decision to overrule the motion to suppress. Therefore, the judgment of the court of appeals is reversed and the cause remanded to the trial court.

McCORMICK and CAMPBELL, JJ., concur.


author: ODOM, Judge. CLINTON, Judge, MILLER, Judge,

text:
    Tiburcio SOTO, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 464-83.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 19, 1984.

      Stephen M. Orr, Austin, for appellant. Ronald Earle, Dist. Atty. and Philip A. Nelson, Jr. and Ralph Graham, Asst. Dist. Attys., Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of delivery of heroin. On appeal the Court of Appeals found that appellant raised the issue of entrapment, V.T.C.A., Penal Code See. 8.06, and that the state failed to disprove the defense. Soto v. State, 649 S.W.2d 801 (Tex.App.—Austin 1983). We granted the petition for review to consider the correctness of that ruling.

We summarize the evidence as recited in the opinion of the Court of Appeals:

“On October 17, 1978, the appellant and Rosalinda Cervantes, an informant for the Austin Police Department, were together at her grandmother’s house. Rosalinda used the phone, after which she asked the appellant if he wanted ‘to score’ for her. The appellant replied, ‘[n]o. You can score for me.’ Rosalinda then said, ‘[c]ome on, he is a good friend of mine. I just called him and asked him to come over.’ Appellant replied, ‘yeah, yeah.’ In fifteen minutes an undercover officer of the Austin Police Department drove up. Appellant testified that he still did not want to go but that Rosalinda urged him to do so. Appellant then left with the officer. He told the officer to wait for him some place and that he would go and ‘get it for him.’ Appellant testified, ‘[s]o, I went and got the dope for him and came back and gave it to him.’ He admitted telling the officer to pick the two largest of the four packets which he had brought back to the officer. He testified that he delivered the ‘dope’ because of his sexual relationship with Rosalinda and because she asked him to do so. He testified that she talked him ‘into it.’ He admitted that the officer gave him the money and asked ‘if I could score for him.’ He told the officer that he could do so, left, got the ‘dope’ and delivered it to the officer.
“The transaction between the appellant and the officer occurred as a result of a contact between the informant, Rosalinda Cervantes, and the officer. The officer testified that the informant called him to ask if he wanted to ‘score some more heroin.’ She gave the officer directions as to where and when to meet the appellant. The officer testified that he did meet the appellant and that the two drove in a vehicle, under directions given by appellant, to a laundromat on Holly Street. The appellant told the officer, ‘well, let me have the money and I will go get it for you, but you will have to wait for me here.’ The officer testified that he gave the appellant fifty dollars for one gram of heroin whereupon appellant told the officer, ‘no, you are going to have to buy two grams so I can have some of it, or else I’m not going to do it.’ The officer gave the appellant an additional fifty dollars; the appellant left and returned in a short time with four squares of aluminum. He asked the officer to pick the two largest squares. The officer did so and appellant retained the other two squares. The squares delivered to the officer, by chemical analysis, were determined to contain heroin.”

Although appellant’s testimony indicates he did so as a result of inducement by police informant Cervantes, the testimony of the officer raised a fact issue as to the reason appellant committed the offense. Although the officer’s testimony did not contradict the testimony given by appellant as to the conversation had with Cervantes and his relationship with her, it did contradict appellant’s assertion that he committed the offense as a result of that conversation and relationship. Specifically, the officer testified that before appellant agreed to perform the transaction he said “you are going to have to buy two grams so I can have some of it, or else I’m not going to do it.” This evidence shows a different motive: appellant committed the offense in order to obtain heroin for himself and he initiated the condition for delivery. The trial court as trier of fact was authorized to weigh the evidence and draw a conclusion from the circumstances that appellant was not induced by Cervantes to commit the offense.

Another reason that entrapment is not established is the failure of the evidence to show that Cervantes was a law enforcement agent under Sec. 8.06, supra. In Rangel v. State, 585 S.W.2d 695, the Court said:

“See. 8.06(b) clearly requires some type of communication between the law enforcement official and his agent or informant, than action by the informant on this communication. The nature of this communication and the extent to which the informant must be instructed or controlled by the law enforcement official has yet to be determined by this Court. However, the mere classification or labeling of a citizen as a ‘police informant’ is clearly insufficient when one considers the language of Sec. 8.06(b) and the practice commentary following. That commentary provides:
“ ‘The promotion of crime by anyone for the purpose of enforcing the law is questionable, and it certainly should not be permitted by agents over whom the police have control. Thus, the police should at the very least, apprise their agents of methods not to be used.’
“The quest in such cases is to determine the degree of police involvement and to judge whether that involvement provided only the opportunity for the criminal mind to commit the offense. Lopez v. State, 574 S.W.2d 563 (Tex.Cr.App.1978). Such an examination must cover two areas.
“The first area of inquiry should be the specific case at bar. A search must be made to determine if the officer specifically instructed his agent or informant to use an improper procedure to ‘make a case’ against a particular defendant. If such specific instructions are discovered, the entrapment defense is available....
“The control or instruction from a police officer to his informant which would constitute entrapment may also be of a general nature. Such general control might arise when an informant has been used repeatedly. After the informant becomes ‘experienced,’ he realizes how to ‘set up’ people to make cases. In such a situation, there is no specific instruction but the police official is still exercising control by failing to properly instruct his agents. Factors for consideration in such cases include number of cases this informant has been involved in and their disposition, if available; the amount and method of compensating the informant; the working relationship between the police officer and the informant; and his contacts with police officers.”

The record in this case is scant in this regard. The opinion of the Court of Appeals reveals these facts from this case:

“The officer admitted that he had no direct knowledge as to who initiated the transaction or who initiated the conversation about the exchange of heroin. That is, he did not know whether Rosalinda asked the appellant to sell or whether appellant asked her if she wanted to sell.
“... The undercover officer admitted that Rosalinda and the appellant had once travelled to Arizona. He further testified that the Austin Police Department paid the expenses of Rosalinda and the appellant coming back to Austin after they went off to Arizona together. The officer admitted that he was introduced to Rosalinda Cervantes by other officers of the Austin Police Department; that he was told that Rosalinda and he were to work together on heroin cases in East Austin; and that he was to be sent ‘specifically to East Austin with Rosalinda to work on making buys of controlled substances, specifically heroin.’...”

The record reflects the summary above. The first part quoted demonstrates a lack of specific instruction such as would render Cervantes a law enforcement agent under the first test of Rangel. The second part quoted, although revealing the objective of the relationship between Cervantes and the police does not reveal what degree of general control may have existed. We find the evidence does not show Cervantes was a law enforcement agent as defined in Sec. 8.06(b), supra, such as to support a finding of entrapment.

The judgment of the Court of Appeals is reversed and the cause is remanded to that court for such further proceedings as are appropriate.

CLINTON, Judge,

dissenting.

The majority would have it that “[ajnother reason that entrapment is not established as a matter of law is the failure of the evidence to show that Cervantes was a law enforcement agent under Sec. 8.06 ...” That reason has not been made an issue in this cause, so the Court ought not to reach out for it to reverse the judgment of the Austin Court of Appeals.

Jurisdiction of this Court in a cause such as the one at bar is “to review a decision of a Court of Appeals in a criminal case as provided by law,” Article V, § 5, Constitution of the State of Texas. The Legislature has provided by law that this Court may “review any decision of a court of appeals in a criminal case,” Article 4.04, § 2, V.A.C. C.P.; Articles 44.01 and 44.45, id.; see also Tex.Cr.App. Rule 302 and Rule 304(a). Within the authority granted by Article 44.45(c), supra, we have promulgated appellate rules which direct the party who petitions for discretionary review, inter alia, to identify grounds or questions for review and reasons therefor, with the assurance that “opinions of the court of appeals will be considered with the petition,” Tex.Cr. App. Rule 304(d)(4) and (5); furthermore, when we grant a petition the practice is for our Clerk to notify the parties of the ground or grounds to be reviewed so that they may prepare and file a brief on the merits pursuant to Tex.Cr.App. Rule 306. Thus the issues the Court will exercise its jurisdiction to consider are specified for the understanding of all concerned, and no participant is likely to be “ambushed.”

In this cause the only ground of error presented to the court of appeals is: “The trial court erred in failing to find that the appellant was entrapped into delivering heroin and was entitled to a finding of not guilty as a matter of law.” The sole “counterpoint” by the State is a negative assertion of the ground of error. The court of appeals rendered a decision on March 9, 1983, reversing the judgment of conviction and remanding the cause with instruction to dismiss with prejudice. The State timely filed a motion for rehearing in which the thrust of its contention is that it had offered evidence rebuting the defense of entrapment sufficient that the trial court found against appellant on the issue, relying on the opinion of this Court in Cook v. State, 646 S.W.2d 952 (Tex.Cr.App.1983) to the effect that it is not error to deny a motion for acquittal when there is conflicting evidence on the issue of entrapment before the factfinder, whose ultimate resolution of the conflict is not to be disturbed. Responding to that motion the court of appeals withdrew its original opinion and rendered the instant decision now before this Court for review. Soto v. State, 649 S.W.2d 801 (Tex.App.—Austin 1983).

The court of appeals was not called on to decide whether “Cervantes was a law enforcement agent under Sec. 8.06,” and it did not gratuitously do so. Indeed, that she was is a matter accepted by all parties and the court, and upon that basis the cause was presented and decided.

In his petition the district attorney directly focuses on the holding of the court of appeals that the State failed to rebut the entrapment defense, contending that the court “ignored evidence squarely rebutting such defense, thereby usurping the Trial Court’s authority as the trier of the facts and sole judge of the credibility of the witnesses.” More elaborately the State Prosecuting Attorney frames five questions for review, but none remotely addresses whether “Cervantes was a law enforcement agent under Sec. 8.06.” As reasons for review both assert that the decision of the court is in conflict with applicable decisions of this Court and of other courts of appeals, but neither ever cites Rangel v. State, 585 S.W.2d 695 (Tex.Cr.App.1979), nor claims that its test is implicated in the case at bar. Likewise in his brief the district attorney pretermits any “Rangel” contention.

Accordingly, whether there is evidence to show that “Cervantes was a law enforcement agent under Sec. 8.06” never has been made an issue in this cause. For the Court sua sponte to raise for the first time an issue of sufficiency of evidence to support an element of a defense to prosecution smacks of a denial of due process. As with all statutory defenses the issue of entrapment is raised when evidence is admitted supporting the defense, and it then becomes the burden of the prosecution to disprove the defense beyond a reasonable doubt. V.T.C.A. Penal Code, § 2.03(c) and (d); Rodriquez v. State, 662 S.W.2d 352, 354, n. 3 (Tex.Cr.App.1984); Bush v. State, 611 S.W.2d 428, 430 (Tex.Cr.App.1980) (for the continuing vitality of which see Rodriquez v. State, supra, at 355, n. 6). Here clearly the parties accepted that Cervantes was acting in the role of a law enforcement agent and litigated only the issue of “inducement.” In these circumstances and at this stage of the cause it is fundamentally unfair to fault appellant with a finding of failure of proof on a point that was never contested in the trial court.

Therefore, I dissent to a sua sponte determination by this Court of a matter that was neither raised in the trial court, presented to or decided by the court of appeals, nor included in a petition for discretionary review.

Furthermore, the underpinnings of Ran-gel have been weakened if not removed by Rodriquez, supra; the crux of Rangel is found in the following statement:

“The quest is to determine in such case the degree of police involvement and to judge whether that involvement provided only the opportunity for the criminal mind to commit the offense. Lopez v. State, 574 S.W.2d 563 (Tex.Cr.App.1978).”

Rangel, at 699. However, Rodriguez held that by enacting § 8.06 the Legislature adopted the “objective entrapment test” capsuled in Norman v. State, 588 S.W.2d 340 (Tex.Cr.App.1979), viz:

“The objective entrapment test mandates that the trier of fact, having once determined that there was an inducement, need now consider only the nature of the State agent activity involved, without reference to the predisposition of the particular defendant.” Id., at 346.

Concomitantly, we concluded in Rodriquez:

“Thus, without reference to ‘predispose tion’ of appellant to commit the theft offenses, the issue is whether appellant was induced to engage in the penal conduct alleged through persuasion or other means likely to cause persons to commit the offenses or was merely afforded an opportunity to commit them.” Id., at 355.

When the defense is that a “police informant” induced an accused to engage in the conduct charged by using persuasion or other means likely to cause persons to commit the offense, the first quest should be to determine whether that person is acting in accordance with instructions from a law enforcement agent in the sense that the agent is directing the “police informant,” without regard to “predisposition” of the accused.

In the case at bar the majority says the evidence is insufficient to show that Cervantes was a law enforcement agent within the meaning of § 8.06(b) in that a specific instruction is lacking and the evidence shows only “the objective of the relationship between Cervantes and the police.” But there is more to what went on here than is indicated in the majority opinion, and to an exposition of those facts I now turn.

Officer Trevino identified himself as a “narcotics officer” for the City of Austin, having then been in the “narcotics detail” for approximately a year and a half. He confirmed his presence and participation in an “initial meeting” with Cervantes somewhere in the Austin police station in late September 1978, held under the aegis of Sergeant Huckabee and Officer Stafford. Trevino was introduced to her, and was told by his superior officers that he and Cervantes were to work together on making buys of heroin (and, if offered, other controlled substances as well) in east Austin and anywhere else in Austin. He said the plan was “to go out on the street and simply see what turned up,” and to that end Trevino adopted a street name and drove around in a variety of motor vehicles.

Meanwhile, appellant was released from prison September 22; he found casual employment, and soon established a sexual relationship with Cervantes. Cervantes is the daughter of Rosa Lopez; she also had a grandmother who resided in east Austin, and with whom she apparently stayed from time to time. Cervantes told appellant that Trevino was a good friend of hers, that she had known him for years.

On the afternoon of October 8, 1978 Trevino drove alone to a grocery store on Holly Street, where by prearrangement he parked near an automobile belonging to Cervantes and occupied by her, Lopez and appellant. According to his corrected version Cervantes came to him and said that appellant “would score, would purchase some heroin for us,” that Trevino was to give her the money (fifty dollars for a gram of heroin) and she in turn would hand it over to appellant; then within five minutes they were to meet at “ ‘Johnny Boys’ on East 7th Street to finalize the transaction.” He handed her the money and watched as she walked directly to appellant and gave it to him. Trevino agreed that “the clear import of the transaction [was] that the money had to be given to [appellant] so he could go buy it for her.” Cervantes rode with Trevino to a parking lot on East 7th, and shortly Lopez drove up in her daughter’s ear with appellant. Lopez got out, walked around to the driver’s side of the truck and handed Trevino a balloon containing one gram of heroin.

When Trevino agreed to what was “the clear import of the transaction,” see ante, he volunteered the following explanation:

“[On] four or five occasions, Rosa Lopez would approach me and would directly try to sell me heroin, and believe it or not, I turned her down four or five times because of the relationship between the informant and, you know, the mother. I did not want to do her — I didn’t — but she just walked right in — and on the sixth time I just couldn’t turn her down.”

The October 9, 1978 transaction forms a .backdrop to provide a clearer perception of the October 17, 1978 offense that is the subject of the instant cause. Among other things we now come to understand what Cervantes meant when she called Trevino at his office on the latter day and opened the conversation by asking if he “wanted to score some more heroin.” His cryptic reply was: “Yeah, fine,” and we also know why that was enough for Cervantes to tell him to “come pick up Butch” at a given intersection near where, according to appellant, her grandmother’s house was situated and from which Cervantes made the telephone call and appellant departed to go wait for Trevino to arrive.

That Trevino did not know who initiated the October 17 transaction is of little moment in deciding whether Cervantes was acting as a law enforcement agent within the meaning of § 8.06(b). Nor did Trevino know of another occasion when appellant delivered heroin to another undercover Austin law enforcement agent, Ciro de la Vega. As appellant summarized the incident, Cervantes instigated that one also.

“She set it all up for me through a good friend of hers. She took me way out to Airport [Boulevard] and everything and introduced him to me. Then he said he wanted to score some dope. She had already called him already.”

While the record does not inform us of the duration of what Trevino euphemistically called an “investigation,” the end came when it was determined that “we had done enough or we couldn’t do any more.” After that Cervantes and appellant “ran off to Arizona.” According to Trevino, at some point Cervantes called the narcotics office, revealed where they were and either “Officer Stafford or Sgt. Huckabee paid their way back to Austin ... to stay in town.”

Accordingly, the records bears out what the parties, the trial judge, the court of appeals and the State Prosecuting Attorney accepted as a given: Cervantes was a “law enforcement agent” within the meaning of § 8.06(b). Circumstantially, she is indeed shown to have been acting under the general direction and control of law enforcement agents in the narcotics detail of the Austin Police Department. See Rangel, supra, at 699.

Because the majority addresses the matter in the first instance, I respectfully dissent; because it then finds the evidence is insufficient to support a finding that Cervantes was a law enforcement officer, I also dissent.

TEAGUE, J., joins.

MILLER, Judge,

dissenting.

In a cleverly crafted essay the majority has successfully evaded the sole issue presented before this Court: whether the uncontroverted evidence concerning the conduct of the police informant raises the defense of entrapment.

The use of informants in law enforcement is not new and the defense of entrapment has been recognized by the judiciary for more than 100 years. The defense of entrapment, codified in V.T.C.A. Penal Code Section 8.06, is available in situations where the informant, in an excessive and corrupt desire to obtain a conviction has persuaded a law abiding person to commit a crime. In Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632 (1928), Justice Brandéis noted:

“But it does not follow that the court must suffer a detective-made criminal to be punished.... This prosecution should be stopped, not because some right of Casey’s has been denied, but in order to protect the Government. To protect it from illegal conduct of its officers. To preserve the purity of its courts.” Id. at 423, 48 S.Ct. at 375 (Brandéis, J., dissenting) (emphasis added).

It is this Court’s duty in preserving the purity of the administration of criminal justice to carefully and judiciously scrutinize the informant’s activities in the instant case for any indicia of overzealousness and overreaching tactics. As Justice Holmes noted,

“It is desirable that criminals should be detected, and to that end all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes.... We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.” Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (Holmes, J., dissenting) (emphasis added).

The majority’s refusal to address the critical issue in this case is inconceivable; and its extension of “a maxim or a definition with relentless disregard of consequences to a ‘dryly logical extreme’ ” is intolerable. Whether one calls it Begriffs-jurisprudenz, mechanical jurisprudence, or slot machine justice, I reject the process the majority has adopted that “obviously a principle, if sound, ought to be applied wherever it logically leads, without reference to ulterior results.”

The fallacies in the majority opinion are many. It assumes that V.T.C.A. Penal Code, Sec. 8.06, the codification of the entrapment defense, requires a showing of a single and exclusive reason for committing the offense in order to “raise” the defense. It does not. In addition, the majority has misinterpreted the word “induce” within Sec. 8.06(a) to mean “constituting the sole reason for the outcome.” In fact, induce simply means and has been judicially applied as “influencing the reason or judgment.” Webster’s Seventh New Collegiate Dictionary (3rd ed. 1969) (emphasis added).

One redeeming feature of the opinion is the tacit acknowledgement of its internal weakness; the form of that acknowledgement, however, constitutes still another problem with the opinion — by misinterpreting the issue presented as including whether the appellant’s evidence establishes that Rosalinda Cervantes was a “law enforcement agent” under Rangel v. State, 585 5.W.2d 695 (Tex.Cr.App.1979), the opinion interjects what logicians call the fallacy of the strawman. At no time has the State in the trial court, in the Court of Appeals, or in this Court ever disputed or contested the issue that Cervantes was acting as a law enforcement agent. If this was an issue raised by the appellant, the majority would have (and has on numerous occasions) summarily dismissed this contention by citing the well-worn and well-established rule that there was “no objection at trial, thus nothing is presented for review,” citing Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1978). For some unexplained reason the majority fails to apply that same rule of law to the State, in its appeal before this Court.

Even if Cervantes’ status as a law enforcement agent is an issue before this Court, the majority has construed the appellant’s “burden of production” in raising a true defense to be a “burden of persuasion beyond a reasonable doubt.” This is patently incorrect. The State has the burden to disprove the defense of entrapment beyond a,reasonable doubt after the issue has been properly raised by the evidence. As this court stated in Bush v. State, 611 S.W.2d 428, 430 (Tex.Cr.App.1980), “The defendant has the burden of producing evidence to raise the defense, but the prosecution has the final burden of persuasion to disprove it.” The proper allocation of burdens of proof in entrapment cases has been discussed by the Fifth Circuit in U.S. v. Dean, 666 F.2d 174, 180 (5th Cir.1982); U.S. v. Webster, 649 F.2d 346, 349 (5th Cir.1981); U.S. v. Dickens, 524 F.2d 441, 444 (5th Cir.1975), cert. den. 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976); as well as in other circuit courts, see U.S. v. Parr, 716 F.2d 796, 802 (11th Cir.1983); U.S. v. Zajac, 677 F.2d 61 (11th Cir.1982); U.S. v. Humphrey, 670 F.2d 153 (11th Cir.1982), cert. den., 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982); and U.S. v. Jannotti, 673 F.2d 578 (3rd Cir.1982), cert. den., 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982).

Assuming, arguendo, that appellant had a burden to prove Cervantes was a “law enforcement agent” (by acting in accordance with instructions from such agents,” V.T.C.A. Penal Code, Sec. 8.06(b)) beyond a reasonable doubt, the majority opinion adds the requirement that such proof be by direct evidence: To hold the testimony of Officer Trevino is insufficient to prove beyond a reasonable doubt that the officer had “general control” over Cervantes in making heroin eases, is to ignore every principle of circumstancial evidence known to the law. Perhaps the majority would be satisfied if the appellant introduced into evidence a written employment contract entered into' by the Austin Police Department and Cervantes to illustrate that Cervantes was, indeed, a “person acting in accordance with instructions from a law enforcement official,” namely, Trevino. See Y.T.C.A. Penal Code, Sec. 8.06(b).

In addition, the majority misinterprets the test set forth in Rangel, supra, and states, in effect, that the Government’s convenient ignorance of their informant’s methodology absolves them of responsibility for the actions of their informants. Such reasoning is in direct conflict with the United States Supreme Court’s holding in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), an entrapment case, in which Chief Justice Warren, writing for the majority, stated:

“The Government cannot disown Kalchi-nian [the informant] and insist it is not responsible for his actions .... In his testimony the federal agent in charge of the case admitted that he never bothered to question [the informant] about the way he made contact with petitioner. The Government cannot make such use of an informer and then claim disassociation through ignorance.” Id., 356 U.S. at 375, 78 S.Ct. at 822, 2 L.Ed.2d at 852 (1958). (emphasis added).

The U.S. Supreme Court’s strongly worded directive concerning the Government’s responsibility for the actions of its informants, holding that ignorance is no defense, and that the government is deemed to have constructive knowledge of such actions, has been cited by the Fifth Circuit in U.S. v. Fischel, 686 F.2d 1082, 1085 (5th Cir.1982); U.S. v. Anderton, 629 F.2d 1044, 1047 (5th Cir.1980); U.S. v. Waddell, 507 F.2d 1226, 1228 (5th Cir.1975); U.S. v. Gomez-Rojas, 507 F.2d 1213, 1218 (5th Cir.1975); U.S. v. Mosley, 496 F.2d 1012, 1016 n. 4 (5th Cir.1974), and by the Fourth Circuit in U.S. v. Perl, 584 F.2d 1316, 1322 n. 5 (4th Cir.1978). See also, U.S. v. Kleinbard, 333 F.Supp. 699, 702 n. 2 (E.D.Pa.1971). Numerous state courts have held that,

“However desirable and helpful the employment of an informant may be in the pursuit and discovery of criminal activity and evidence of crime, law enforcement authorities may not disavow him and disclaim responsibility for his actions when he entraps someone because they had no knowledge and did not approve of the entrapment. In short, ‘Government cannot make such use of an informer and then claim dissasociation through ignorance.’ ” State v. Talbot III, 135 N.J.Super. 500, 343 A.2d 777, 782 (N.J.Super.Ct.1975), citing Sherman, supra.

See also, State v. Perez, 438 So.2d 436, 439 (Fla.Dist.Ct.App.1983); State v. Devine, 554 S.W.2d 442, 447 (Mo.Ct.App.1977); Messelt v. State, 351 So.2d 630 (Ala.Crim.App.1977); State v. Cooper, 248 N.W.2d 908, 910 (Iowa 1976); State v. Tomlinson, 243 N.W.2d 551 (Iowa 1976); State v. Ostrand, 219 N.W.2d 509, 512 (Iowa 1974); Lynn v. State, 505 P.2d 1337, 1343 (Okla.Crim.App.1973); People v. Dollen, 53 Ill.2d 280, 290 N.E.2d 879, 881 (1972); and 21 Am.Jur.2d Criminal Law Sec. 202 at 384 (1981).

Even if the majority were correct in their assumption of innocence concerning Cervantes, that she was waging her own private “war on drugs” campaign in East Austin, the circuit courts have consistently held that entrapment can occur as a result of efforts of informers who are merely private citizens. See generally, U.S. v. Perl, 584 F.2d 1316 (4th Cir.1978) (The court noted that Sherman, supra, allows an entrapment defense even where the government has neither prior knowledge of nor direct involvement in the scheme to entrap. The court noted that there must be a showing that the government and the entrapper have a relationship such that the government is estopped from denying responsibility for the entrapment. The court held that in the Perl case the appellant failed to produce a “shred of evidence” linking the informant to the U.S. government), and Notaro v. U.S., 363 F.2d 169, 172 n. 2 (9th Cir.1966) (Informant, who met a U.S. Treasury agent employed by the Federal Bureau of Narcotics, volunteered his services and requested no compensation and became reacquainted with the appellant, an old friend, in an effort to purchase marihuana from the appellant. The court held that the informant, “though not paid for his activity was an agent with the Government’s law enforcement officer.” Id. at 172). See also, U.S. v. Graves, 556 F.2d 1319, 1326 (5th Cir.1977); U.S. v. Groessel, 440 F.2d 602, 605 n. 1 (5th Cir.1971), cert. den. 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971); Henderson v. U.S., 237 F.2d 169, 174 (5th Cir.1956); Johnson v. U.S., 317 F.2d 127, 128 (D.C.Cir.1963); 1 National Commission on Reform of Federal Criminal Laws, Working Papers, p. 321 (1970); and Model Penal Code, Tentative Draft 9, Sec. 2.10(6) p. 22 (1959).

The majority has chosen to ignore the evidence produced at the pre-trial hearing of the government’s inducement. The record reflects that at the hearing appellant testified that after his release from prison in September, 1978, he established a sexual relationship with the informant. He testified that it was because of this sexual relationship with the informant that he sold heroin to the informant’s “friend,” Officer Trevino, on October 17, 1978. Appellant further testified that he would not have delivered heroin to anyone without having been requested to do so by Rosalinda Cervantes — that she asked him to do it and that was why he did it. Officer Trevino testified that he had no direct knowledge as to who initiated the transaction or who intiated the conversation about the exchange of heroin. The majority has cleverly avoided discussing the facts in this case concerning the sexual relationship between Cervantes and appellant and whether the testimony concerning the sexual relationship between the two raises the defense of entrapment.

In addition, the majority blindly (and perhaps purposefully) ignores the law governing the State’s burden of proof in this ease and the fact, as the Court of Appeals aptly points out in its opinion, that the State could have called the informant to the stand to dispute and disprove the appellant’s claims. The State’s failure to produce Rosalinda Cervantes in rebuttal should require an inference to be drawn against the State on the question of inducement. In addition, the State has failed to present any evidence concerning an inability to locate the informant to testify.

“Many sins in the law have at times been swept under a jurisprudential rug in the guise of fact finding, but neither justice nor reason, neither public policy nor log.ic, compels us to do so here. When questions of law dominate uncontro-verted material facts, resort to fact finding from a congeries of irrelevant evidence is unnecessary.”
“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.”

The majority has failed to hold government officials accountable for their actions and are “creatively expanding” the panel opinion in Rangel. Because I believe that the majority is sanctioning the government’s blissful ignorance of their informant’s activities in order to secure a conviction, I dissent.

TEAGUE, J., joins.

      . We express no opinion on the other grounds of error asserted in the appeal.

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      .Appellant had characterized Cervantes as an "undercover informant” (Brief for Appellant, p. 2); referring to testimony of Officer Trevino, the district attorney called her “his informer” (Brief for the Appellee, p. 2); the court of appeals described her as "an informant for the Austin Police Department,” Soto v. State, supra, at 802. All are correct, as we shall see.

      . Even the State Prosecuting Attorney, who entered this cause after the final ruling of the court of appeals, refers to Cervantes as "a woman who was working as a police informer.” Petition for Discretionary Review, p. 5.

      . The State Prosecuting Attorney did not favor us with a brief, and neither side made oral argument when the cause was submitted to the Court.

      . As member of the panel deciding it, the writer accepted the Rangel test because it emphasized "the degree of police involvement,” and the precedential worth of Langford v. State, 571 S.W.2d 326 (Tex.Cr.App.1978) was not high at the time. See Langford v. State, 578 S.W.2d 737 (Tex.Cr.App.1979). However, I did urge that a factfinder should understand that "the informant could have entrapped the defendant in a variety of agency theories and not only under specific instructions from an agent to entrap,” Rangel, at 701.

      . The Practice Commentary following § 8.06 states that subsection (b) "proscribes entrapping methods by persons directed by a peace officer as well as by the peace officer himself.” As Judge W.C. Davis noted in Rangel, the commentary also alludes to "agents over whom the police have control,” but it would be a mistake to find no “control" when a police informant is being "directed" by a law enforcement agent.

      . Emphasis is added in majority opinion.

      . It is obvious from his own testimony that Trevino did not recruit Cervantes, and apparently neither Sergeant Huckabee nor Officer Stafford briefed him fully about her. For instance, unknown to him was the fact that Cervantes would also work with another undercover Austin law enforcement agent named Ciro de la Vega. Thus, Trevino was not her "control agent” to the exclusion of others, and the majority errs in proceeding on that premise.

      . Referring to Cervantes and Lopez, appellant testified that "they said they was going to score some, so they went down to where he [Trevino] said, to the grocery store, parked there and she [Cervantes] called somebody.” After about an hour “or something like that” Trevino arrived in a white truck. Initially Trevino testified that Cervantes was riding with him and that appellant and Lopez drove up and parked next to them. However, after appellant testified otherwise Trevino was recalled and he recanted that his first version, saying appellant was "right”— "I did drive up to the store by myself [in a truck, or car, or something], and Linda [Cervantes], Momma [Lopez] and Butch [appellant] were already there.” Though the stated purpose of recalling Trevino was for him “to just tell us” about what he "remembered a little bit differently" from his earlier testimony, and Trevino did say he made a “mistake” on two points about which appellant was “right,” he did not dispute the plain inference that Cervantes had called him to come to the grocery store to make a buy — from her own mother, as it turned out.

      . Appellant recounted that Cervantes returned from Trevino, held out and opened her hand with some money in it and told him, "Give it to my momma." Lopez was then in or about the grocery store; when she came out to the car appellant turned the money over to her, saying, “Here is some money Rosalinda says give to you.” Lopez then left the car and went away for about five minutes; when she came back she said that they were “going to go to 'Johnny Boys’ ” and proceeded to drive to the parking lot where the white truck was. Lopez got out, went to the truck, came back and drove off in her daughter’s car. During all of that appellant had remained in Cervantes’ car.

      . Trevino "felt that would be a little strong, to make a case on [an] informant's mother" and “tried not to ... five times.” However, as a consequence of the October 9, 1978 transaction both appellant and Lopez were later indicted together for delivery of heroin.

      . The court of appeals found that Trevino admitted he had no direct knowledge about who initiated the conversation about an exchange of heroin — that is, whether Cervantes asked appellant to sell or "whether appellant asked her if she wanted to sell [sic].” Actually in the tran-sciption of the notes of the court reporter that part of the question is "whether he asked her if she wanted to buy?" In my view the purpose of the inquiry was simply to establish lack of such knowledge on the part of Trevino in order to ensure that he could not create a conflict with the testimony appellant was about to give to the effect that Cervantes not only initiated the conversation with Trevino but also began to "nag" appellant to go with Trevino “to score for her.” In any event, Trevino already knew from the scenario she played out at the grocery store the week before that Cervantes was perfectly willing to implicate appellant.

      . Just how Trevino stated that development indicates the mindset of some peace officers who work in a narcotics detail of a metropolitan police department, viz:

        "... we got a call from Linda [Cervantes] at the office telling us where she was at and who she was with. So we — well, I am not going to say 'we — I believe it was Officer Stafford or Sgt. Huckabee paid their way back to Austin.”
      Functioning through hearsay is a way of life for such peace officers, and it becomes idiomatic to say “we” did this or that and something happened to "us.” When Trevino corrected himself he revealed the ultimate truth: both he and Cervantes had been working under the direction and control of superior officers in the narcotics detail.

      . It has been noted that:
      "From early times law enforcement authorities have utilized informers. Their value in ferreting out crime was recognized in the ancient practice of English medieval law called approvement. Being arraigned on a charge of treason or felony, the approver confessed his guilt, and in order to obtain a pardon, offered to appeal and convict other criminals called the appellees. If the appellees were found guilty the approver was pardoned. If the appellees were acquitted the approver was hanged. The approvement was open to obvious abuses and Sir Matthew Hale observed that ‘this course of admitting of approvers hath been long disused, and the truth is, that more mischief hath come to good men by these kinds of approvements by false accusations of desperate villians, than benefit to the public by the discovery and convicting of real offenders, gaolers for their own profits often constraining prisoners to appeal honest men.’” Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1092 (1951).
      Although the availability of entrapment as a defense was suggested as early as 1878 in United States v. Whittier, 28 Fed.Cas. 591, No. 16,688 (E.D.1878), it was not until 1915 in Woo Wai v. United States, 233 Fed. 412 (6th Cir.1916), that a federal court acquitted a defendant because he was entrapped. The Supreme Court considered the problem in 1895 in Grimm v. United States, 156 U.S. 604, 610, 15 S.Ct. 470, 472, 39 L.Ed. 550 (1895), with Justice Brandéis writing an adumb-rative dissent in Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632 in 1928. It was not until Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), that the Court gave the doctrine careful consideration and undertook to examine its rationale, determine its validity, and prescribe the applicable procedure.

      .V.T.C.A. Penal Code, Sec. 8.06 (1974), provides:
      "(a) It is a defense to prosecution that the actor was 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.
      (b) In this section Taw enforcement agent’ includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents."

      . Hynes v. New York Cent. R. Co., 231 N.Y. 229, 235, 131 N.E. 898, 900 (1921) (Cardozo, J.).

      . U.S. v. Jannotti, 673 F.2d 578, 615 (3d Cir.1982) (Aldisert, J., dissenting).

      . Gluck v. Baltimore, 81 Md. 315, 32 A. 515, 517 (1895). In U.S. v. Jannotti, 673 F.2d 578, 616 (3d Cir.1982), Justice Aldisert in his dissent stated,
      “I believe that the proper test of a legal rule is the extent to which it contributes to the establishment and preservation of a social environment in which ‘the quality of human life can be spirited, improving and unimpaired' [citations omitted] and that law must be judged by the results it achieves, not by the niceties of its inherent structure. ‘It must be valued by the extent to which it meets its end, not by the beauty of its logical processes or the strictures with which its rules proceed from the dogmas it takes for its foundation, [citations omitted].'" Id. at 616.

      . At the pre-trial hearing on the issue of entrapment, Officer Trevino testified that he was an undercover narcotics agent; that he was introduced to Cervantes by fellow officers; that he was told that he and Cervantes were to work together on heroin cases; that he was sent specifically to East Austin with Cervantes to work on making buys of controlled substances, specifically, heroin; that the Austin Police Department financed a return trip to Austin for Cervantes and appellant, and that on the day of the offense Cervantes called Officer Trevino and asked him if he wanted to "score some more heroin.”

      . "Depending upon the facts of each case, examples of prohibited governmental activity may include extreme pleas of desperate illness, appeals based primarily on sympathy, pity or close personal friendships and offers of inordinate sums of money.” (emphasis added) 21 Am.Jur.2d Criminal Law Sec. 206 at p. 378 (1981). Many appellate courts across the nation have been faced with the issue presented before us concerning the defense of entrapment and inducements based on close personal or familial friendships. In People v. Ramon, 86 Mich.App. 113, 272 N.W.2d 124 (1978), the appellate court determined, contrary to the ruling of the trial court, that the defendant was entrapped after the cousin of the defendant, working with law enforcement agents, persuaded the defendant to sell him (the cousin) heroin after the cousin-informant assured the defendant that the informant needed the money to engage an attorney for previous charges of burglary and after assuring the defendant that he would not use the drug himself. In Pascu v. State, 577 P.2d 1064 (Alaska 1978), the court found that there was evidence which revealed that the police agent played heavily on his close personal friendship with the defendant when he asked the defendant to buy heroin for him; made repeated appeals to the defendant’s sense of obligation and sympathy telling the defendant he was sick and needed a "fix.” In People v. McIntire, 23 Cal.3d 742, 153 Cal.Rptr. 237, 591 P.2d 527 (1979), the court found substantial evidence of entrapment to show that the defendant did not want to participate in the transaction but acquiesced after constant urging by her younger brother because of family problems; that the importuning from her brother was the direct result of strong and persistent pressure brought to bear by an undercover police agent. In State v. Kamrud, 611 P.2d 188 (Mont.1980), the court found that the undercover officer who induced the defendant to give them a minute quantity of marijuana did more than merely afford the appellant with the opportunity to commit the offense by making a casual offer to buy. The court found that the agents had befriended him and approached him on more than one occasion for the purpose of soliciting drugs. In People v. Gratzer, 104 Mich.App. 705, 305 N.W.2d 300 (1981), the court of appeals held that the defendants were entitled to dismissal of the charges of delivery and possession of controlled substances on the ground of police entrapment where the police exploited the friendship between the defendants and the police informant. See also, People v. Spahr, 56 Ill.App.3d 434, 14 Ill.Dec. 208, 371 N.E.2d 1261 (1978); People v. Walker, 61 Ill.App.3d 4, 18 Ill.Dec. 315, 377 N.E.2d 604 (1978); State v. Fiechter, 88 N.M. 437, 540 P.2d 1326 (1975); People v. Duis, 81 Mich.App. 698, 265 N.W.2d 794 (1978); and People v. Wisneski, 96 Mich.App. 299, 292 N.W.2d 196 (Mich.Ct.App.1980).

      . Brokers Title Co. v. St. Paul Marine Ins. Co., 610 F.2d 1174, 1177 (3d Cir.1979) (emphasis added.)

      . Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (Brandéis, J., dissenting) (emphasis added).