Case Information
*1 687-15 688-15 689-15 Count of Criminal Appetits of Texts Cathy S. Hask, Cheek 1514 W. Feont St., Ste. 354 Tyler, Texts 75702
May 29th, 2015
Chieles E. Lusk The 5th 1964427 Ellis Unit 1697 FM 980 Huntsville, TX. 77343
Here Creek, Please find enclosed peo se leetition for biscertiontney Review to be tiie in the Couret of Criminal Appetl. Appellant wies mubble to make many copies due to time retretint and indigent supplies denist. However, A copy wks matl to State Athoeney and Smith County bistait athoeney.
FILLED IN COURT OF CRIMINAL APPEALS JUN 04255
RECEIVED IN COURT OF CRIMINAL APPEALS JUN 03255 Abel Acosta, Cierx
Sincerely, Allahad 6. Chis
*2 CAUSE No. 12-14-00205-CR, 12-14-00204-CR, 12-14-00207-CR In the The 12th District Count of Appeals FAK The State of Texas Chadles Eshnes Lusk, Appellant V.
The State of Texas Appellee pro se PATrTION for Discerfionary Revenue Appeals from the 24/55 Swoioinl District Count Smith County, Texas Honokable Sneck SReen Se. Tinal Attomay Danilo S. Davidson P.O. Box 1105
Tyler, Texas 75710 TEL. 903-526-7688
Appell Attomay Austin Reeve Jackson 112. ERst Line, Suite 310
Tyler, TX. 75702 TEL. 903-595-6070 Assistant Comintal District Attomay Michael J. West 100 N. Beasoway Tyler, Texas 75702 TEL. 903-590-1720
*3
TABLE OF CONTENTS
JANOex of Authorities ..... 4 Statement Regarding Oral Argument. ..... 1,2 Statement of the Case. ..... 2 Statement of Procedural History. ..... 3 Apounds for Review. ..... 3 Argument. ..... 4,5,6 Panyer for Relief. ..... 7 Ocetilitate of Service. ..... 7
*4
IABex of ANTIAbities
STATUTE/RILLES
TEX.COUL.COM. PROD. 8 Aet. 28.01
STATE LASE
TAUDA V. STATE, 886 S.W. 2d 262. (Ex. App. 1994). TOBRES V. STATE, 980 S.W. 2d 873 (App. 4Dist. 1998). Richardson V. STATE, 622 S.W. 2d 852, 856 . . 4,5 (TEX.COM. App. 1981). HENNANDEZ V. STATE, 161 S.W. 3d 491,499 (TEX.COM. App. 2005). MECION V. STATE, 713 S.W. 2d 107,113 (TEX.COM. App. 1986). Johnson V.STATE, 23 S.W. 3d 1,15 (TEX.COM. App. 2000). Shakson V. Viegmin, 443 U.S. 307,319, 99 S.C. 2781, G1 L.Ed. 2d 560 (1979).
*5 CAUSE No. 12-14-00225-0R, 12-14-00204-0R, 12-14-00207-0R IN TRE THE 12thDistrictCONET OF AppelLLS FOR TRE STATE OF TEXAS
CHARLES EDWARD LUSK APPELLANT V. THE STATE OF TEXAS, APPELLER
prose PETITION FOR DISCRETIONARY REVIEW TOTHE HONORABLE SUSTICES OF THE CONET OF APPERLLS:
COME Now, Charles Lusk Dies this Petition FOR DISCRETIONARY REVIEW pursUANT to the TEXAS Rules of Appellate PRecedure, and would show the CONET As follows: STATEMENT REAPRINS ORAL AREGUMENT Because AN important question of state or Federal Law that has not been, but should be, settled by the CONET of Criminal AppelLLS. What the state cannot tolerate is
*6 having crime instigated by its officers who are charged with the duty of entorcing the law. Repeated contact by officers proves personally police conduct. officers were trained where the police of the law to enforce the law. officers did target and ensure Appellant into the commission of Crime. Appellant should have been arrested at initial contact by trained where the agents.
STATEMENT OF THE CASE. Chneiss lusk seeks to appeal his convictions and senstences for the three felony offenses of delivery of a controlled substance. (10K1 50; 10042; 10K3 59).'Me, lusk was indicated for these offenses in the 291st district court of Smith County, Texas in February 2014. (10K11;10K21;10K31). Ultimately, a plea of "guilty" was entered. After which the trial court imposed punishment at a term of confinement in each case. (10K150;10K24;10K354). Sentence was pronounced on 4 July 2014 and notice of appeal them timely filed. (10K150,55;10K244,66;10K354,58).
The Clerk's Recoeds in the underlying cases are cited as follows: 12-14-00025-CE is "0K2", 12-14-00206-CE is "0K1", and 12-14-00207-CE is "0K3".
*7
STRIMEENT OF PROCEDURAL HISTORY ON April 30, 2015 Opinion delivered by Justice Beinn Hyde on Appellant direct Appell. in the Court of Appell. Pmuel consisted of Moethen, C.S., Hoyle, S., and Neely, S. . No rehearing was filed. Petition for Disceretionney Review filed.
GROUNDS FOR REVIER
Where defendant establishes that he was induced by law enforcement to commit an offence to which he was not otherwise predisposed by means that would have overcome the resolved of a Rational person, he is entitled to a dismiss of any resulting charges on the ground of entergment. Where as here, the tein court neverheless denies that motion an appellate court must reverse that decision where the record is legally insufficient to support the tein court's action. Because the evidence is legally insufficient to support the tein court's rejection of the defense of entergment as a matter of law, the court should reverse the underlying judgment and render a judgment of negatital.
*8 ARejUMENT
Once dePendunt peodures evidence to raise dePense of entergment, state has biveden to dispense entergment beyond reasonable doubt; as teIer of thet, teiAl couet is nuthorized to weigh evidence and teom offeunstances dean legal conclusion as to whether revised was entergmed. Tylor V. State (CR. App. 1991) 886 S.W. 2d 262. Repeated contret by offieces peores persumsiv potiee conduct. When claiming entergment, a dePendent is entitled to a pectoral hepeing on that issue at which point he hes the bueden of establishing a peima heie showing that he is entitled to an entergment defense. TEX. Code CEm. Reoc. Aet 28.01 $11(9); Riehredson V. State 622 S.W. 2d 852, 856 (TEX.Cem. App. 1991). The testimony of the defendant by itself may be enough make this peima theie showing. Riehredson, 622 S.W. 2d at 856. After a dePendent has met his initial bueden, the state bears the bueden of pexsusion to dispense entergment beyond a reasonable doubt. Tylor V. State, 886 S.W. 2d 262, 265 (TEX.Cem. App. 1999)
OVERview of a teiAl couet's decision regarding whether the state met its bueden an appellate couet looks to the suftiowey of the evidence. TORRES V. State, 980 S.W. 2d 879, 875 (TEX. App.-SwANthonio 1998, No pet.). In detemining whether the evidence is legally sufficient to support the teiAl couet's
*9 holding, an appellate comet revisions the recoped in the light most favorable to the teinl comets decision. Sophsov N. Stute, 23 S.W. 3d 1, 15 (TEX Clem. App. 2000); see also Sneckson V. Viegmin, 443 U.S. 307,39,99 S. Ct. 2781, 61 L.Ed. 2d 520 (1979) (establishing legal suffisienoy standerd of Reviem). the teinl comet, as the telex of thet, must weigh the evidenee and determine whether the recessed was enveloped as a matter of law. Terees V. Stute (App. 4Dist. 1978) 980 S.W. 2d 873. A. EVIDENCE AT TEAL
Where, offices were trained varentie mindecover agents under the code of the law. Offices did target and ensnare appellant into the commission of ceime. Testimony deves appellant was not a deug deahce, and did not safe devas. appellant was not derested at initial contact during the commission of ceime. Repeated contact by offices deves persuasive police conduct. B. Application of Law to the Testimony
While Appellant must comecde that there are some disputed that issves these that are dered to the question of enterpment are not disputed; whmely, that Mr. ZusK was approached by law enforcement, was provided with a ride and the MERs with which to purchase coeAive, And was
*10 provided with these Resources on multiple occasions. But see Heranadez V. State, 161 S.W. 3d' 491, 499 (Tex.Ceim. App. 2005) (holding that a defiendunt is entitled to dismissall only where the evidence is confliet here, weon'tendieted, uncontested or undisputed.) Merton V. State, 713 S.W. 2d 107, 113 (Tex.Ceim. App. 1986) (where the evidence on the issue of evterement is in conflict, the issue should be submitted to the yiey.).
Considteity the indisputed evidence, the recued estiblishes that Me. Lusk engaged in the conduct changed only because he was indeced to do so by a har evtorescent agent who used peesumision or other means that likely to cause him to commit the offense. See Heranadez, 161 S.W. 2d at 497 (elements of evterpment). And offences not apporached Me. Lusk, reguested that he obtain cocaine for then, and offered, at least by implication some bervetit to him for doing so, the offense were would have been committed.
In Sum, evlen viewing the recued in the light not thioe. Able to the teinl count's evling, the recued before the Couet this to establish that the State met its bunden of dispooing enterpment beyond a pressounble doubt. Consequently, the Couet should reverse the judgment of the teinl count and render a judgment of acquittal.
*11 PRAYER for RELIEF Wherefore, premises considered, it is Respectfully peryed that the Canet, because the teinl counts holding on the defense of euterement as a matter of law is not supposed by legally sufficient evidence, that the Canet reverse the judgment of the teinl canet, and reufore a judgment of Appuittal.
Respectfully Submitted, Chieles E. Lask Tos 4 Pg 497 Eliis unit 1497 FM 980 Huntsville, TX, 77943 - 0001 Certificante of SErvice The unbesiwed heedy ceetities that on this 29th day of May, 2015, the following have been completed: (1) The original copy of the Appellants Petition for Discretionary Review in the above numbered cause has been sent the filing to the Clerk of the Canet of Twelfth Canet of Appents. (2) A legible copy of the Appellants Petition for Discretionary Review in the above numbered cause has been sent by U.S. Mill to:
*12
State Respecting Athonney P.O. Box 2405
Austin, Texas 78711 Michael J. West Assistant Ceninnal Disleict Athonney 100 N. Beondway, 44 F1. TyTeE, Texas 75702
Churles E. Lusk
Tos#196497 Ellis Unit 1697 FM 980 Huntsville, Texas 77348 - 0001
*13
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
NON-MAILABLE CORRESPONDENCE/REASON FOR DENIAL ELLIS UNIT
*14
NOS. 12-14-00205-CR
12-14-00206-CR
12-14-00207-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHARLES EDWARD LUSK, APPELLANT V.
THE STATE OF TEXAS, APPELLEE
§ APPEALS FROM THE 241ST § JUDICIAL DISTRICT COURT
SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Charles Lusk appeals his three convictions for delivery of a controlled substance. He raises one issue relating to the defense of entrapment as a matter of law. We affirm.
BACKGROUND
A Smith County grand jury returned three indictments against Appellant for the offense of delivery of a controlled substance. In cause numbers 12-14-00205-CR and 12-14-00207-CR, the indictments alleged that Appellant delivered cocaine in the amount of one gram or more but less than four grams, including any adulterants and dilutants. In cause number 12-14-00206-CR, the indictment alleged that Appellant delivered cocaine in the amount of less than one gram, including any adulterants and dilutants.
Appellant filed a motion to dismiss the State's indictments in each case based on entrapment as a matter of law. After conducting a hearing, the trial court denied Appellant's motions. Thereafter, Appellant pleaded "guilty" to each indictment and "true" to the two enhancement paragraphs alleged in each case. The trial court withheld a finding of guilt and ordered a presentence investigation be conducted. At the conclusion of the sentencing hearing,
*15
the trial court found Appellant "guilty" in each case. In cause numbers 12-14-00205-CR and 12-14-00207-CR, the trial court assessed punishment at fifty years of imprisonment. In cause number 12-14-00206-CR, the trial court assessed punishment at twenty years of imprisonment. The sentences were ordered to run concurrently. This appeal followed.
ENTRAPMENT
In his sole issue, Appellant contends the trial court erred by denying his motion to dismiss the State's indictments based on entrapment as a matter of law. As such, he asks this court to reverse the trial court's judgments and render a judgment of acquittal in each case.
Standard of Review and Applicable Law
It is a defense to prosecution that the defendant 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. Tex. Penal Code Ann. § 8.06(a) (West 2011). Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Id. Entrapment occurs when the activity of the police agent induces a person, with no predisposition to illegal conduct, to commit a crime. England v. State, 887 S.W.2d 902, 913 (Tex. Crim. App. 1994); Sanders v. State, No. 12-12-00342-CR, 2013 WL 3271033, at *1 (Tex. App.—Tyler, no pet.) (mem. op., not designated for publication).
In the pretrial context, a defendant is entitled to dismissal under Section 8.06 "only when he can establish entrapment as a matter of law with conflict-free, uncontradicted, uncontested, or undisputed evidence." Hernandez v. State, 161 S.W.3d 491, 499 (Tex. Crim. App. 2005). In reviewing a trial court's denial of a defendant's pretrial motion to dismiss based on entrapment "as a matter of law," we determine de novo whether any rational trier of fact could conclude that the undisputed facts failed to establish all of the elements of entrapment. Id. at 500 . If the facts shown during the hearing are disputed, entrapment as a matter of law cannot be determined at the pretrial stage. See id. at 499. [1] Our review must take into account that the trial judge, as the trier of fact,
*16
was free to accept or reject all or any portion of any witness's testimony. Varkonyi v. State, 276 S.W.3d 27, 33 (Tex. App.—El Paso, 2008, pet. ref'd).
Discussion
Appellant testified that on the evening of November 8, 2013, he was approached by a "carload" of people (undercover police officers) in a Motel 6 parking lot waving at him to come towards them. [2] When he approached the vehicle, the undercover officers asked him if he knew "where anything's at." Appellant testified that, at first, he said "no." But after about two or three minutes of conversation regarding whether they (both Appellant and the undercover police officers) were the police, the undercover officers convinced him to "do something for them." That "something" was purchasing one hundred dollars' worth of crack cocaine.
Appellant testified that before the undercover officers left, he told them that he was going to a gas station approximately one mile away to play games. Before he reached the gas station, the undercover officers located him, made a u-turn, and told Appellant, "Come on, man. We'll take you to the Valero." Appellant testified that it was at that time that he decided to "do something for them." He explained that one of the passengers called him by his nickname, leading him to believe that he could trust them because they must have known him.
Once inside the officers' vehicle, Appellant made a phone call and told them that he would take them to the place where he could get them crack cocaine. Appellant testified that had he not been asked to get the crack cocaine, he would not have made the phone call that led to the delivery of crack cocaine on that night and on two other occasions.
On cross examination, Appellant agreed that he was not threatened or pressured into purchasing and delivering the cocaine. He testified that he said "no" three times before he was "talked into" purchasing the cocaine and delivering it to the police officers. His testimony later revealed that when he initially declined to deliver cocaine, Appellant asked the undercover officers what he would get out of it. One of the officers replied that he would give Appellant ten dollars. Appellant testified that had the undercover officer told him they would not give him anything, he would not have done it.
After the defense rested, the State called Lukas Neubauer, an officer for the Tyler Police Department. Officer Neubauer testified that he was with the narcotics unit driving through the Motel 6 parking lot on the night of November 6, 2013, because it was an area where they have
*17 received "a lot of drug complaints," and where they have made drug purchases in the past. He testified further that as they were driving through, he and the narcotics team saw Appellant walking in the parking lot, turned around, and drove up to him. As they approached Appellant, Officer Neubauer recalled, rolling down his window to talk to Appellant. He testified that Appellant was on his side of the vehicle when he spoke to him. Although Officer Neubauer could not remember the exact wording of what was said, he testified that the "gist" of the conversation was that they were looking to purchase crack cocaine.
According to Officer Neubauer, Appellant never told them "no" that evening, and demonstrated that he was not a police officer by showing them a crack pipe from his pocket. Officer Neubauer could not remember the specifics of his conversation with Appellant. But he testified that, in the past, they would offer anywhere from two to ten dollars or a "pinch" from the purchased drug as compensation to the individual who purchased and delivered the cocaine.
There is no recording of the undercover police officers' original contact with Appellant. But once Appellant agreed to make the purchase, the officers left the parking lot to obtain recording equipment. The officers returned, with the recording equipment, to the location near the gas station where Appellant told them he was going. They passed Appellant as he was walking down the street and turned around. As they slowed down, Appellant approached their vehicle and "immediately got in without any problem." Officer Neubauer testified that once Appellant was inside, he gave them directions and used the officer's cell phone to advise his connection that they were on their way.
Officer Neubauer testified that Appellant was "definitely agreeable" when they approached him about purchasing crack cocaine. "He seemed excited about the prospect that he could do this on multiple occasions[, and it didn't] take any kind of cajoling or convincing." Officer Neubauer explained that he attempted to get Appellant's phone number as a way to communicate in setting up future deals, but Appellant did not have a phone. As a result, Officer Neubauer gave Appellant his phone number and testified that Appellant called "very frequently" over the course of the next couple of weeks to see if they wanted more crack cocaine. [3]
*18
On cross examination, Officer Neubauer confirmed that if the driver of their vehicle had signaled Appellant to their car, he did not see it.
Conclusion
It is undisputed that law enforcement officers asked Appellant if he knew where they could purchase crack cocaine. It is also undisputed that law enforcement officers drove Appellant to the location where he purchased the crack cocaine for them. While such conduct afforded Appellant the opportunity to commit the offense, it cannot be said that these undisputed facts prove entrapment as a matter of law. See Tex. Penal Code Ann. § 8.06(a).
The record shows a conflict regarding Appellant's willingness to engage in criminal activity. Appellant's contention that he was "talked into" committing the offense, when compared with Officer Neubauer's testimony that Appellant was "definitely agreeable," raises an issue of fact regarding whether (1) Appellant was induced and (2) whether law enforcement used persuasion or other means that caused him to commit the offenses. See id.; Hernandez, 161 S.W.3d at 499. There is also conflicting testimony regarding who initiated contact for the commission of the second and third transactions. And even if Appellant's testimony was not directly disputed, the trial court was not required to believe his testimony. See id. at 500. The trial court did not err in overruling Appellant's motion to dismiss based on entrapment as a matter of law. Accordingly, we overrule Appellant's sole issue on appeal.
DISPOSITION
Having overruled Appellant's sole issue on appeal, we affirm the judgment of the trial court.
BRIAN HOYLE
Justice Opinion delivered April 30, 2015. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
*19
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 30, 2015
NOS. 12-14-00205-CR
CHARLES EDWARD LUSK,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-0127-14) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
*20
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 30, 2015
NOS. 12-14-00206-CR
CHARLES EDWARD LUSK, Appellant V.
THE STATE OF TEXAS, Appellee
Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-0126-14)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
*21
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 30, 2015
NOS. 12-14-00207-CR
CHARLES EDWARD LUSK,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-0128-14) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
NOTES
Even if a defendant's testimony is not directly contradicted at the pretrial hearing, it may nevertheless be "disputed," because the trial judge, as the sole trier of fact, is not required to believe that testimony. Hernandez v. State, 161 S.W.3d 491, 500 (Tex. Crim. App. 2005). In such instances, a trial court does not err in overruling a motion to dismiss. Id.
Appellant did not know the individuals inside the vehicle were undercover police officers.
Officer Neubauer's testimony suggests that Appellant initiated the contacts with law enforcement that led to the commission of the subsequent offenses, which is contrary to Appellant's testimony that he was contacted by law enforcement on several occasions.