The Entrapment Defense in Texas Criminal Cases

In any case involving an undercover sting operation or the use of a confidential informant, the entrapment defense might come into play. If your case involves a sting operation or the use of a confidential informant then contact a criminal defense attorney in Houston, TX, at Horak Law to discuss the facts of your case. Matt Horak is experienced in using affirmative defenses such as entrapment at trial, during a pre-trial motion, or as mitigation to negotiate a better pre-trial resolution with the prosecutor.

When law enforcement officers use a sting operation or a confidential informant, the evidence that the crime was committed might be overwhelming. In those cases, the entrapment defense is the only defense.

Houston Lawyer for Entrapment Defense

Did another person induce you to commit a crime that you otherwise would not have committed? If so, you should seek out the services of an experienced criminal defense attorney. Call Horak Law. Matt Horak fights to protect the rights of residents in communities throughout Houston, TX, in Harris County and the surrounding areas of Montgomery County, Fort Bend County, Liberty County, Galveston County, Waller County, and Brazoria County.

Harris County trial attorney Matt Horak is a former prosecutor who has been board certified in Criminal Law by the Texas Board of Legal Specialization. He can review your case and discuss all your possible defense options as soon as you call our firm at (713) 225-8000 or toll-free at [phone-tollfree] to schedule a completely initial consultation.

Harris County Entrapment Defense Information Center

• What is the history of this defense?
• What is the difference between the subjective and objective elements of entrapment?
• How can an alleged offender use this defense?
• What happens when entrapment is raised as a defense during a criminal case?
• How is this defense defined under state law?
• What are examples of cases that constitute entrapment?
• Where can I learn more about this defense?

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History of the Entrapment Defense

In Sorrells v. United States, 287 U.S. 435, 445 (1932), the United States discussed the history and rationale of entrapment defense. The Supreme Court explained:

It is well settled that decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime. But decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime. When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor.

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Subjective vs. Objective Elements of Entrapment in Texas

The Entrapment Defense in Texas has both a subjective and objective elements. The subjective element requires evidence that the defendant “himself was actually induced to commit the charged offense by the persuasiveness of the police conduct.” England v. State, 887 S.W.2d 902, 913 n. 10 (Tex.Crim.App.1994). Evidence that the defendant has previously committed a crime is some evidence that the subsequent commission of the crime was not induced by the actions of law enforcement. Id. at 914. “Once inducement is shown, the issue becomes whether the persuasion was such as to cause an ordinarily law-abiding person of average resistance nevertheless to commit the offense.” Id.

As to the objective element of the entrapment defense in Texas, the law prohibits conduct by a law enforcement agent that can include pleas “based on extreme need, sympathy, pity, or close personal friendship, offers of inordinate sums of money, and other methods of persuasion that are likely to cause the otherwise unwilling person rather than the ready, willing and anxious person to commit an offense.” Hernandez v. State, 161 S.W.3d 491, 497 (Tex. Crim. App. 2005)(citing England v. State, 887 S.W.2d 902, 914). See also Tex. Pen.Code § 8.06(a).

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Texas Law on Using the Entrapment Defense at Trial

Under Texas law, the entrapment defense can be raised at trial. At trial, the defense has the burden of producing evidence to establish every element of that defense for entrapment. The defense must make a prima facie showing of the following elements:

• the defendant engaged in the conduct charged;
• because the defendant was induced to do so by a law enforcement agent;
• the law enforcement agent used persuasion or other means; and
• those means were likely to cause persons to commit the offense.

If the defense makes that prima facie showing, then the prosecutor with the State of Texas has the burden of persuasion to disprove entrapment beyond a reasonable doubt.

Because the defense of entrapment requires this burden-shifting showing, entrapment acts like a justification defense such as self-defense.

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Texas Law on Entrapment as a Matter of Law

In most criminal cases, the defense of entrapment is presented at trial for the jury to decide. The reason the defense is an issue for the jury is because the jury must weigh the facts and decide the credibility of the witnesses.

In some cases, however, the evidence is so strong and undisputed that the defendant can raise the defense of entrapment during a pre-trial hearing under article 28.01.13. In those cases where the entrapment evidence is so strong and undisputed, it is appropriate for the defense to seek a determination by the judge before trial through a “Motion for a Pretrial Judicial Determination of Entrapment as a Matter of Law.”

Under Texas law, the defendant is entitled to dismissal of the charges under section 8.06 in the pretrial hearing context only when he can establish entrapment as a matter of law through undisputed evidence that is free of conflict and not contradicted or contested. If the facts are in dispute, then the court cannot decide entrapment as a “matter of law” on a pre-file basis.

In other words, at the pre-trial stage, it is the defendant who must establish entrapment beyond a reasonable doubt. The prosecutor for the State of Texas does not have to prove anything. Instead, the prosecutor would only need to raise an issue that is in dispute that the jury would need to decide. See Hernandez v. State, 161 S.W.3d 491 (Tex. Crim. App. 2005).

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Texas Definitions of Entrapment

Title 2, Chapter 8 of the Texas Penal Code lists general defenses to criminal responsibility. Like the defense of duress, claims of entrapment are essentially excuses deflecting blame for criminal responsibility on to other parties.

• Entrapment, Texas Penal Code § 8.06 — The entrapment defense can be used by an alleged offender who engaged in criminal conduct because he or she was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. It is important to note that this statute specifically states that conduct “merely affording a person an opportunity to commit an offense does not constitute entrapment.”

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Proving the Entrapment Defense in the State of Texas

Many people have heard of the term entrapment, but it remains one of the most commonly misunderstood legal defenses. There is a common misconception that this defense can be raised by any person who was arrested as the result of a law enforcement set-up or sting operation.

However, the key terms in the definition of entrapment under state law are “induced to do so by a law enforcement agent.” In order to successfully use this defense, an alleged offender will need to prove by a preponderance of the evidence that police officers or other agents used overly aggressive tactics to get an alleged offender to break the law.

Common examples of scenarios that do not constitute entrapment include, but are not limited to:

• Alleged offender agrees to pay undercover agent for prostitution;
• Speed traps in areas where speed limits change suddenly;
• Undercover officer lies about law enforcement connection; or
• Undercover officer offers to buy drugs.

Entrapment can be used as a defense when police officers or other agents go too far in their attempt to cause an alleged offender to commit a crime. Successful uses of the entrapment defense often require subjective proof that a law enforcement officer induced an alleged offender to commit a crime as well as objective proof that such inducement would have caused another reasonable person to commit the same crime.

Examples of scenarios that would constitute entrapment include, but are not limited to:

• Emotional manipulation
• Extortion
• Financial incentives
• Involuntary intoxication
• Overwhelming amount of repeated requests to commit a criminal offense
• Threats of violence

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Harris County Entrapment Resources

Houston Police Department Vice Division — This division of the largest municipal police department in the state of Texas conducts investigations that utilize surveillance, confidential informants, and undercover operations. The Vice Division consists of several specialized squads, including the Administrative Squad, Day Shift General Vice, Human Trafficking Unit (HTU), and Night Shift General Vice. Depending on the specific unit, investigations may target alleged gambling, prostitution, or other criminal offenses.

Texas Department of Public Safety (DPS) Multi-County Drug Task Forces — This website contains a PDF version of the Multi-County Drug Task Force Operational Policies and Procedures Manual that provides standardized uniform drug law enforcement in Texas. In this manual, you can learn more about the undercover operations of multi-county drug task forces as well as riskier reverse role undercover operations. The procedures section for reverse role undercover investigations specifically notes, “All officers should ensure that conversations with suspects will be recorded (audio/video) to eliminate entrapment claims.”

United States Attorneys’ Criminal Resource Manual — This manual is intended to be for the reference of United States Attorneys and other United States Department of Justice employees who prosecute violations of federal law. Criminal Resource Manual 645-648 covers several areas relating to entrapment, including elements of entrapment, recent cases involving this defense, proving predisposition, and outrageous government misconduct.

United States Immigration and Customs Enforcement (ICE) Narcotics Enforcement — Because of the city’s proximity to Mexico as well as the enormous amount of international cargo that comes through the Port of Houston, this Department of Homeland Security agency has to invest substantial resources into targeting alleged offenders suspected of committing various crimes in the Houston area. This website discusses some of the responsibilities of ICE agents, including conducting undercover operations and utilizing confidential informants.

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Find a Lawyer in Houston for the Entrapment Defense

If you were recently arrested for a criminal offense that might involve the entrapment defense then contact an experienced criminal defense attorney in Houston, Texas. Matt Horak represents clients throughout Harris County and the surrounding areas of Southeast Texas.

If an undercover police officer or confidential informant compelled you to commit the crime against your free will, then you will want to have experienced legal counsel capable of presenting a valid entrapment defense.

The entrapment defense is commonly asserted in drug cases, child pornography cases and other types of cyber and online crimes, and crimes of solicitation such as prostitution.

As a former Harris County Assistant District Attorney, Matt Horak has a thorough understanding of how alleged offenders can successfully argue these types of defenses.

Horak Law, provides aggressive legal defense for clients all over the greater Houston area, including The Woodlands, Galveston, Missouri City, Spring, League City, Conroe, Richmond-Rosenberg, Pasadena, Sugar Land, and Pearland. Call our firm at (713) 225-8000 or toll-free at [phone-tollfree] today to schedule a confidential consultation that will let our Harris County trial attorney review your case.

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