Entrapment | Affirmative Defenses in Criminal Cases

 In Criminal

Entrapment | Affirmative Defenses in Texas

A person accused of a criminal offense may raise the affirmative defense of entrapment by asserting that a government official, or someone acting under the direction of a government official, overreached in tempting the defendant to commit a criminal act. However, simply providing an opportunity for the defendant to commit an offense is not enough to rise to the level of an entrapment defense.

The elements of entrapment are (1) whether the accused was induced to engage in the conduct by a law enforcement agent; and (2) whether the means of inducement used were likely to cause persons, not the accused, to commit the offense. The focus of the first part of this test is whether a government agent induced the accused or merely provided an opportunity for them to act. The second part of the test determines whether other persons would have committed the crime under the circumstances at hand.

The first key to successfully raising an entrapment defense is understanding the test applied. Texas no longer follows a purely objective interpretation of the test. Instead, the current test is a mix between subjective and objective elements. First, a law enforcement officer must have induced the particular accused to commit the crime (subjective element). Second, the inducement must have been such as would likely have caused other persons to commit the crime (objective element).

The second key to successfully raising an entrapment defense is understanding when the defense may be raised. In addition to being raised at trial, entrapment may be raised in pre-trial practice under Section 28.01(9) CCP. “The entrapment defense is unique in that the Legislature deliberately provided it may be tested and determined at a pretrial hearing. When the entrapment issue is determined favorably to accused, the only question remaining is the proper remedy.” Taylor v. State, 886 S.W.2d 262, 265 (Tex. Crim. App. 1994).

To preserve the defense for appeal, counsel needs to declare the defense at trial through use of pretrial motion, directed verdict, or requesting jury instructions. A successful entrapment defense raised pre-trial equates to a finding of acquittal and is not appealable by the State.

Burden of Proof for Entrapment:

The defense has the burden of production of evidence in raising the issue of entrapment. Once the defense raises the issue, the prosecution has the burden of disproving the defense beyond a reasonable doubt. In other words, the prosecution has the burden of persuasion.

Entrapment is laid out as a defense in Penal Code Section 8.06.


(a) 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. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

Furthermore, Code of Criminal Procedure Article 28.01 provides:


Sec. 1. The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State’s attorney, to appear before the court at the time and place stated in the court’s order for a conference and hearing. The defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding. The pre-trial hearing shall be to determine any of the following matters: . . . (9) Entrapment;

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