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State v Tober

3-29-2012 Texas:

State v Tober

The State of Texas appeals the trial court's pre-trial determination and finding of entrapment as a matter of law in favor of the accused, appellee, Anthony Tober. See TEX. CODE CRIM. PROC. ANN. art. 28.01 § 1(9) (West 2006); TEX. PENAL CODE § 8.06 (West 2011); see also Hernandez v. State, 161 S.W.3d 491, 497 (Tex. Crim. App. 2005) (listing the elements a defendant must establish to present a prima facie case of entrapment). We dismiss the State's appeal for want of appellate jurisdiction.

At his pre-trial hearing on his motion on entrapment, Tober testified that around the time of December 2010, he was homeless, without proper photo identification, and was denied entry into the Corpus Christi Police Department in order to register as required. The Corpus Christi Police Department's internal policy requires all visitors to present themselves at a security checkpoint and show photo identification prior to gaining access to the building. Tober testified that sometime before an attempt to re-register at the police station, he lost his driver's license and was unable to obtain a new one because he lacked a physical address. As a result, Tober was denied entry into the police station to register as he was required to do under the law, and was in violation of the registration statute.

Additional testimony was elicited from Brenda Rodriguez and Dianne Berry, whose jobs were to register offenders, such as Tober, at the Corpus Christi Police Department. Both Rodriguez and Berry testified that occasionally prior to December 2010, Tober was allowed through the security checkpoint at the station and permitted to register without photo identification.

After taking it under advisement, the trial court sustained Tober's motion on entrapment as a matter of law, found that entrapment was present in this case, and concluded that the State was barred from prosecuting Tober under the charged offense. This appeal ensued.

Here, the trial court ordered in its findings of fact and conclusions of law that the defendant met his pre-trial burden of proving entrapment as a matter of law and thus barred the State from prosecuting the Defendant on the allegations presented. The trial court effectively dismissed the prosecution with prejudice and did not issue an order that touched or concerned the State's charging instrument against Tober. See Taylor, 886 S.W.2d at 265.

In following the Court of Criminal Appeals's holding in Taylor, and since the State's right to appeal is regulated under article 44.01 of the code of criminal procedure, we conclude that an appealable order was not entered by the trial court, and we are without jurisdiction to consider the State's appeal. See TEX. CRIM. CODE PROC. ANN. art. 44.01; Taylor, 886 S.W.2d at 266.

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