                           NUMBER 13-11-00331-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                        Appellant,

                                          v.

ANTHONY TOBER,                                                             Appellee.


                   On appeal from the 28th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Benavides and Perkes
            Memorandum Opinion by Justice Benavides

      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.

                                      I.       BACKGROUND

       Tober was indicted by a Nueces County grand jury for failing to comply with sex

offender registration requirements because he failed to re-register as required under the

law.1 See TEX. CODE CRIM. PROC. ANN. art. 62.102(b)(2) (West 2006). Tober’s alleged

failure to comply with his registration requirement is a third-degree felony.            See id.

       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




       1
           According to the State’s indictment, Tober’s reporting requirement stems from a conviction or
adjudication dating back to May 15, 2001 from Washtenaw County, Michigan for criminal sexual conduct in
the fourth degree. See MICH. COMP. LAWS ANN. § 750.520e (West 2012).

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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.

                                   II.      JURISDICTION

       Prior to addressing the merits of the State’s appeal, we must first determine

whether we have jurisdiction to hear the case.     “In order to accept an appeal, a court of

appeals must have jurisdiction; lack of jurisdiction is fundamental error with or without a

proper assignment of error.”             State v. Johnson, 843 S.W.2d 252, 253 (Tex.

App.—Texarkana 1992, pet. granted). We must look at the “effect of the court’s order,

not simply what the motion or order has been labeled.”        State v. Savage, 905 S.W.2d

268, 269 (Tex. App.—San Antonio 1994, pet. granted), aff’d, 933 S.W.2d 497, 500 (Tex.

Crim. App. 1996). In criminal cases, the State may appeal from the trial court on limited

grounds.   See TEX. CRIM. CODE PROC. ANN. art. 44.01 (West Supp. 2011).

       In this case, the State contends that this court has jurisdiction over the trial court’s

finding of entrapment under article 44.01(a)(1) of the code of criminal procedure,

regardless of whether the order is aimed at a defect in the indictment itself.       See TEX.

CRIM. CODE PROC. ANN. art. 44.01(a)(1).        Both parties direct our attention to a case,

which appears to address a similar issue as the present one.        See Taylor v. State, 886

S.W.2d 262 (Tex. Crim. App. 1994).




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       In Taylor, the Fort Worth Court of Appeals dismissed the State’s appeal for want

of appellate jurisdiction after the trial court sustained the defendant’s pre-trial motion for

entrapment on the grounds that the order was not appealable under article 44.01 of the

code of criminal procedure.     See id. at 263.     The Texas Court of Criminal Appeals

affirmed the Fort Worth court’s decision because the trial court’s order had no effect on

the indictment, as required under the code in order to be appealable.        See id. at 266.

In its reasoning, the Court held that article 44.01 deals solely with dismissal of charging

instruments, not orders of acquittal or orders dismissing prosecution based on a showing

of entrapment.    Id.

       Much like the State’s argument in Taylor, the State in this case argues that the

trial court’s dismissal of prosecution effectively terminated the proceedings and thus

allows it to appeal under article 44.01(a)(1).

       Entrapment is a defense to prosecution and may be raised as a pre-trial matter or

during trial.   See TEX. PENAL CODE ANN. § 8.06(a); TEX. CRIM. CODE PROC. ANN. art.

28.01 §1(9); Varkonyi v. State, 276 S.W.3d 27, 32–33 (Tex. App.—El Paso 2008, pet.

ref’d). If the issue of entrapment is determined favorably for the accused, the only

question that remains is the remedy.     See Taylor, 886 S.W.2d at 265. When the issue

of entrapment is sustained at the pre-trial stage, acquittal of the defendant is not an

appropriate remedy because double jeopardy does not attach at that point in the

proceedings.     See Bush v. State, 611 S.W.2d 428, 431 (Tex. Crim. App. [Panel Op.]

1980). However, if the defense of entrapment is successful at trial, acquittal is required.

Id. (citing TEX. PENAL CODE ANN. § 2.03 (West 2011)).




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       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.

                                      III. CONCLUSION

       We dismiss the State’s appeal for lack of jurisdiction.




                                                        ________________________
                                                        GINA M. BENAVIDES,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
29th day of March, 2012.




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