                                 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,                             §      APPEALS FROM THE 241ST
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      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,
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,




         1
           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.




                                                          2
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

       2
           Appellant did not know the individuals inside the vehicle were undercover police officers.


                                                          3
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




        3
          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.


                                                        4
         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.




                                             (DO NOT PUBLISH)




                                                          5
                                   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.
                                   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.
                                   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.
