entrapment defense in Texas

2015In England v. State, 887 S.W.2d 902, 913-14 (Tex.Crim.App.1994), the Texas Court of Criminal Appeals held that the entrapment defense has both subjective and objective elements.

1999To establish an entrapment defense, an accused must produce evidence that: (1) he was actually induced to commit the offense; and (2) the inducement “was such as to cause an ordinarily law-abiding (sic) person of average resistance nevertheless to commit the offense.” England v. State, 887 S.W.2d 902, 914 (Tex.Crim.App.1994); Liggins v. State, 979 S.W.2d 56, 60 (Tex.App.-Waco 1998, pet. ref'd).

2021Zarate v. State, 551 S.W.3d 8 261, 270 (Tex. App.—San Antonio 2018, pet. ref’d) (citing Reese v. State, 877 S.W.2d 328, 333 (Tex. Crim.

2018Reese v. State , 877 S.W.2d 328 , 333 (Tex. Crim.

2025The presentation of an entrapment defense at a pretrial hearing, although “permissible,” is “generally undesirable because it permits the piecemeal trial of a criminal case.” Hernandez v. State, 161 S.W.3d 491 , 497–98 (Tex. Crim.

2024To be entitled to an instruction on entrapment, the defendant has the burden of producing a prima facie case of all of the elements of the entrapment defense, which are: (1) “he engaged in the conduct charged”; (2) “because he was induced to do so by a law enforcement agent”;2 (3) “who used persuasion or other means”; and (4) “those means were likely to cause persons to commit the offense.” Hernandez v. State, 161 S.W.3d 491, 497 (Tex. Crim.

2009Norman v. State, 588 S.W.2d 340, 345 (Tex.Crim.App. 1979).

2009Norman v. State, 588 S.W.2d 340, 345 (Tex.Crim.App. 1979).

1993Richardson v. State, 622 S.W.2d 852, 854 (Tex.Crim.App.1981).

1992Sebesta v. State, 783 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1990, pet. ref d) (citing Richardson v. State, 622 S.W.2d 852, 854 (Tex.Crim.App.1981)).

2006See Ramos v. State , 632 S.W.2d 688, 691 (Tex.App.-Amarillo 1982, no writ).

2006See Ramos v. State, 632 S.W.2d 688, 691 (Tex.App.–Amarillo 1982, no writ).

1989We therefore hold that the trial court properly overruled appellant’s motion to dismiss the indictment on entrapment grounds based on the appellant’s failure to produce sufficient evidence to raise the entrapment defense, his initial burden under Bush, 611 S.W.2d at 430 .

1983An objective test rather than a subjective test for an entrapment defense is called for under Bush v. State, 611 S.W.2d 428 (Tex.Cr.App.1981).

1984In his petition the district attorney directly focuses on the holding of the court of appeals that the State failed to rebut the entrapment defense, contending that the court “ignored evidence squarely rebutting such defense, thereby usurping the Trial Court’s authority as the trier of the facts and sole judge of the credibility of the witnesses.” More elaborately the State Prosecuting Attorney frames five questions for review, but none remotely addresses whether “Cervantes was a law enforcement agent under Sec. 8.06.” 3 As reasons for review both assert that the decision of the court is in co

1984In his petition the district attorney directly focuses on the holding of the court of appeals that the State failed to rebut the entrapment defense, contending that the court "ignored evidence squarely rebutting such defense, thereby usurping the Trial Court's authority as the trier of the facts and sole judge of the credibility of the witnesses." More elaborately the State Prosecuting Attorney frames five questions for review, but none remotely addresses whether "Cervantes was a law enforcement agent under Sec. 8.06." [3] As reasons for review both assert that the decision of the court is in

2021Melton v. State, 713 S.W.2d 107, 112 (Tex. Crim.

2010See Melton v. State , 713 S.W.2d 107, 112 (Tex. Crim.

2004See Norman, 588 S.W.2d at 345 ; Warren, 565 S.W.2d at 933 ; Zamora, 508 S.W.2d at 822 ; see also Groessel, 440 F.2d at 605 .

2004See Norman, 588 S.W.2d at 345 ; Warren, 565 S.W.2d at 933 ; Zamora, 508 S.W.2d at 822 ; see also Groessel, 440 F.2d at 605 ; Roiphe, supra, at 284.

2004In other words, the entrapment defense expresses public policy condemning “the implanting of the germ of criminality, no matter how favorable the culture.” Id. at 284 (quoting State v. Jarvis, 105 W.Va. 499 , 143 S.E. 235, 236 (1928)).

2004In other words, the entrapment defense expresses public policy condemning “the implanting of the germ of criminality, no matter how favorable the culture.” Id. at 284 (quoting State v. Jarvis, 105 W.Va. 499 , 143 S.E. 235, 236 (1928)).

2026See Bien v. State, 530 S.W.3d 177, 183 (Tex. App.— Eastland 2016), aff’d, 550 S.W.3d 180 (Tex. Crim.

2020See Bien, 530 S.W.3d at 183 .

2013See generally, Vasquez v. State, 389 S.W.3d 361, 367 (Tex.Crim.App.2012) (application paragraph must specify "all of the conditions to be met before a conviction under such theory is authorized”); Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App. 1996) (noting that jurors are not authorized to return a verdict "except under those conditions given by the application paragraph of the charge”). 24 .

2013See generally , Vasquez v. State , 389 S.W.3d 361, 367 (Tex. Crim.

2012See Adams, 270 S.W.3d at 659, 662 ; Keeton, 2008 WL 755294 , at *1, 4.

2012See Adams , 270 S.W.3d at 659, 662 ; Keeton , 2008 WL 755294 , at *1, 4.

2009See Resendez v. State , 160 S.W.3d 181, 188-89 (Tex. App.-Corpus Christi 2005, no pet.).

2009See Resendez v. State, 160 S.W.3d 181, 188-89 (Tex. App.–Corpus Christi 2005, no pet.).

2004Taylor, 886 S.W.2d at 266 .

2002“The entrapment defense is unique in that the Legislature deliberately provided it may be tested and determined at a pretrial hearing.” Taylor v. State, 886 S.W.2d 262, 265 (Tex.Cr.App.1994).

2004See Norman, 588 S.W.2d at 345 ; Warren, 565 S.W.2d at 933 ; Zamora, 508 S.W.2d at 822 ; see also Groessel, 440 F.2d at 605 .

2004See Norman, 588 S.W.2d at 345 ; Warren, 565 S.W.2d at 933 ; Zamora, 508 S.W.2d at 822 ; see also Groessel, 440 F.2d at 605 ; Roiphe, supra, at 284.

2020Evidence of possible entrapment defense In addition to his contention that the confidential informant’s testimony would be relevant to the issue of whether he committed the offense of possession with intent to deliver a controlled substance, Hirst further contends that the informer’s testimony is relevant because it “could form the basis of an entrapment defense.” See Tex. Penal Code § 8.06 (addressing entrapment defense); cf. Bodin, 807 S.W.2d at 315, 318 (noting that informer who performed “controlled buy” from defendant before search warrant was obtained “could have had information relevant

2020The Court of Criminal Appeals has stated that “evidence from any source, but not mere conjecture or speculation, must be presented to make the required showing that the informer’s identity must be disclosed.” Bodin, 807 S.W.2d at 318 .

2018The objective element requires evidence that "the persuasion was such as to cause an ordinarily law-abiding person of average resistance nevertheless to commit the offense." Hernandez , 161 S.W.3d at 497 n.11 (quoting England , 887 S.W.2d at 914 ); Flores v. State , 84 S.W.3d 675 , 682 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd).

2003See Flores v. State , 84 S.W.3d 675, 681 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

2011See Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim.

2010Denman v. State , 193 S.W.3d 129, 134 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); s ee Tex. Penal Code Ann. § 2.03(c) ; Shaw v. State , 243 S.W.3d 647 , 657–58 (Tex. Crim.

1993See Mathews v. United States, 485 U.S. 58, 63-66 , 108 S.Ct. 883, 886-88 , 99 L.Ed.2d 54 (1988).

1993See Mathews v. United States, 485 U.S. 58, 63-66 , 108 S.Ct. 883, 886-88 , 99 L.Ed.2d 54 (1988).

1987In support of his position, appellant cites United States v. Henry, 749 F.2d 203, 205 (5th Cir.1984), in which the Fifth Circuit held that a defendant may be entitled to an entrapment defense when he admits the acts charged but denies criminal intent.

1986Appellant contends that having admitted the acts charged but having denied criminal intent, he is still entitled to the entrapment instruction, citing a federal case, United States v. Henry, 749 F.2d 203 (5th Cir. 1984).

2026See Bien v. State, 530 S.W.3d 177, 183 (Tex. App.— Eastland 2016), aff’d, 550 S.W.3d 180 (Tex. Crim.

2024See Braughton v. State, 569 S.W.3d 592, 609 (Tex. Crim.

2014Villarreal v. State, 267 S.W.3d 204, 210 (Tex.App.-Corpus Christi 2008, no pet.).

2013See generally, Vasquez v. State, 389 S.W.3d 361, 367 (Tex.Crim.App.2012) (application paragraph must specify "all of the conditions to be met before a conviction under such theory is authorized”); Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App. 1996) (noting that jurors are not authorized to return a verdict "except under those conditions given by the application paragraph of the charge”). 24 .

2012A defendant “has the right to an instruction on any defensive issue raised by the evidence, whether such evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of this evidence.” Walker v. State, 300 S.W.3d 836, 847 (Tex. App.—Fort Worth 2009, pet. ref’d). 7 Among other facts, to raise an entrapment defense, a defendant must produce evidence that the police’s persuasion was “such as to cause an ordinary law-abiding person of average resistance nevertheless to commit the offense.” Hernandez v. State, 161 S.W.3d