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Entrapment as a Defense in Texas: When Being “Set Up” Goes Too Far

It is a staple of movies and TV shows: the police undercover operation or “sting.” From “To Catch a Predator” to “American Hustle,” we see law enforcement actively creating scenarios designed to catch a perpetrator in the act of committing a crime. Law enforcement officials throughout Texas regularly conduct undercover operations geared toward arresting “johns” in prostitution cases, online predators seeking sex from underage girls, drug dealers, and many other potential criminal defendants. When a defendant is arrested and charged as a result of a police “sting,” the cry of “I was set up!!” is usually heard.

Just being “set up” will not get you out of your predicament if you are arrested; police and law enforcement are given significant leeway to conduct undercover operations where they actively create or participate in scenarios designed to get a suspect to commit a criminal act.

However, these operations can and do sometimes cross the line between presenting a defendant with an opportunity to commit a crime and actively coercing an individual to commit a crime. When that happens, the defense of “entrapment” may be effective in fighting the charges arising from such police overreach.

Texas Penal Code Definition of “Entrapment”

“Entrapment” is specifically identified as a defense in the Texas Penal Code. Sec. 8.06 of the Penal Code provides that:

  • It is a defense to prosecution that the actor 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.

An important limitation to the defense is set forth in the second part of this code section:

  • Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.

The “Objective Test”

When evaluating an entrapment defense, courts in many states use what is called a “subjective test” that focuses on the defendant’s state of mind and whether the criminal intent originated with the defendant or with the police. Texas courts, however, use an “objective test.” This test focuses on the actions of law enforcement rather than the state of mind of the defendant.

Under the objective entrapment test, a judge or jury, having once determined that there was an inducement to commit a crime, may only consider the nature of the law enforcement activity involved, without reference to the predisposition of the particular defendant. As one court framed it, the key question in an entrapment defense is:

“whether [defendant] was induced to engage in the penal conduct alleged through persuasion or other means likely to cause persons to commit the offenses or was merely afforded an opportunity to commit them.” 

Rodriguez v. State, 662 S.W.2d 352 (1984)

Using the objective standard, prohibited police conduct usually includes, but is not limited to, matters such as extreme pleas of desperate illness in drug cases, appeals based primarily on sympathy, pity or close personal friendship, offers of inordinate sums of money, and other methods of persuasion which are likely to cause the otherwise unwilling person— rather than the ready, willing and anxious person—to commit an offense.

It is important to understand that courts will give police fairly wide discretion to conduct undercover operations, and being “set-up” in the sense of active police participation alone won’t necessarily get you a successful entrapment defense. In each individual case, the effectiveness of the defense will turn on the details of the police actions during the operation and an evaluation of whether “opportunity” or “persuasion” was the dominant characteristic of the interactions between the police and the defendant.

If you’ve been charged with a crime arising out of a police undercover operation, it is important that you meet with an experienced Texas criminal defense attorney who can help determine whether or not the authorities overstepped their bounds.

Mark Diaz – Experienced Texas Criminal Defense Lawyer

When you have been charged with a crime, you need an experienced criminal defense lawyer who focuses exclusively on defending criminal cases and who will aggressively protect your rights. Throughout my career, I have successfully handled every type of criminal defense case. More importantly, criminal defense is the only thing I do. I have witnessed firsthand how a criminal charge can negatively impact every area of a person’s life. As a lawyer, I consider it a privilege to help people during this stressful time in their lives. Call me today at (409) 515-6170 for a free consultation to discuss your case.

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