“I was set up” is one of the most common defenses in Texas drug crime cases. Sometimes, this defense works. Some greybeards may remember the John DeLorean cocaine case from the early 1980s. The automaker needed money to save his company, and so he tried to sell some cocaine in what turned out to be an undercover sting operation. The jury eventually acquitted him.
But the entrapment defense is not always that easy to prove. That’s especially true in Texas. As outlined below, the entrapment defense works a little differently in the Lone Star State.
Elements of the Defense
In addition to drug cases, entrapment often comes up in prostitution or child pornography cases. Undercover officers often pose as ladies of the night. Or, they may pose as young girls in internet chat rooms.
In all these situations, entrapment has basically the same elements, as set forth in Texas Penal Code 8.06. The defendant must establish that he committed a criminal act 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.”
Note that identification is not an element. In the movies and TV, it’s always entrapment if the undercover officers do not identify themselves as police officers when asked. But that’s not the way it works. If officers lie about their identity, it may make the defense easier to prove, but that’s it.
In everyday English, entrapment has basically two components:
· Undue Pressure: The line is pretty vague here, but at some point, law enforcement crosses the threshold between cajoling and undue pressure.
· No Predisposition: Let’s return to the internet chat room example above. If the defendant is in the chat room, the defendant obviously has some predisposition for the activity. So, entrapment defenses are seldom effective in these cases.
TPC 8.06 drives home this element with the following comment: “Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.”
How it Works
Many states evaluate this defense subjectively. The defendant’s state of mind is an issue. For example, in the DeLorean case, the defendant testified that he was desperate to save his auto company and needed money really badly.
But Texas courts use an objective approach. The only relevant facts are law enforcement actions. The defendant’s state of mind does not really matter.
Entrapment may be a defense in some drug trafficking cases. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. Home and jail visits are available.
