Entrapment is a legal defense to a criminal charge. Defendants claiming entrapment argue 2 things: police conduct would have induced a law-abiding person to commit the crime, and the conduct actually induced the defendant to commit it. Defendants raising an entrapment defense have to support both of these elements.

The Entrapment Defense in Texas

Q: Who has the burden of proof?

The burden of proof for the entrapment defense shifts between defendant and prosecution. The defendant has the burden of production. The prosecutor has the burden of persuasion. Initially, the defendant has the responsibility of raising the defense of entrapment. He or she has the burden of providing evidence that supports the defense. This is required for the jury even to consider whether the defendant was entrapped. To raise the entrapment defense, a defendant has to provide evidence that he or she: committed the offense, was induced to do so by police, the police used persuasion or other means to induce the offense, and an ordinary person would likely have been induced to commit the crime, as well.

Q: What about during a pre-trial hearing?

In Texas, entrapment is occasionally decided in a pre-trial hearing. If it is, the burden of proof is different.

In Texas, entrapment is a legal defense to a crime. It absolves people of criminal liability when the police lured them into committing the offense. If the police conduct would have induced a reasonable law-abiding person to commit the crime, it can be entrapment.

The defense is based in Texas Penal Code 8.06. Under this section, a defendant has been entrapped when he or she “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.”

If the police conduct induces a law-abiding person to commit the crime, it can be entrapment.

1. What is entrapment?

Entrapment is a legal defense to a criminal charge. Defendants claiming entrapment argue 2 things:

police conduct would have induced a law-abiding person to commit the crime, and
the conduct actually induced the defendant to commit it.¹

Defendants raising an entrapment defense have to support both of these elements.

The first element focuses on the conduct of the police. It is satisfied if the inducement would have caused a normal, law-abiding person to commit the crime. For this element, it does not matter if the defendant was predisposed to commit the crime.²

The second element focuses on the defendant. It is subjective. The defendant has to actually be induced by the police. If the defendant would have committed the crime, anyway, this element will not be satisfied.³

2. What kinds of police conduct are not entrapment?

Not all police conduct is entrapment. Police can still nudge people into committing a crime. Merely affording an opportunity to break the law is not entrapment.⁴

Example: Police send a 16-year-old into a convenience store to buy cigarettes.

attorney working with client on entrapment case

The entrapment defense undercuts the prosecutor’s claim that the defendant intended to commit the crime.

3. Why is it a defense?

The entrapment defense undercuts the prosecutor’s claim that the defendant intended to commit the crime.

Entrapment also aims to restrain police overreach. When police coerce someone into committing a crime, it will lead to an acquittal. This undermines the point of their actions.

4. Who has the burden of proof?

The burden of proof for the entrapment defense shifts between defendant and prosecution. The defendant has the burden of production. The prosecutor has the burden of persuasion.

Initially, the defendant has the responsibility of raising the defense of entrapment. He or she has the burden of providing evidence that supports the defense. This is required for the jury even to consider whether the defendant was entrapped.⁵

To raise the entrapment defense, a defendant has to provide evidence that he or she:

committed the offense,
was induced to do so by police,
the police used persuasion or other means to induce the offense, and
an ordinary person would likely have been induced to commit the crime, as well.⁶

Once this has been done, the burden of proof shifts to the prosecutor.

The prosecutors have the burden of persuading the jury that the defendant was not entrapped. They have to prove this beyond a reasonable doubt.⁷ They can present evidence that the defendant was predisposed to commit the offense. This insinuates that the defendant was not induced. They can present evidence of prior crimes to show the defendant needed no inducement.⁸

5. What about during a pre-trial hearing?

In Texas, entrapment is occasionally decided in a pre-trial hearing. If it is, the burden of proof is different.

At the pre-trial stage, the defendant has the burden of proof. He or she has to prove entrapment beyond a reasonable doubt to the judge. If the prosecution raises a reasonable doubt, a jury will decide it.⁹

6. When is entrapment a common defense?

When police conduct undercover stings, entrapment is a common defense.

Offenses that often lead to a claim of entrapment include:

drug possession with intent to deliver,
prostitution, and
solicitation.

Example: A narcotics officer talks to Al. Al agrees to help him investigate a suspected drug dealer. 3 times, Al buys cocaine from the dealer and brings it to the officer. Al gets arrested and charged with a drug crime.¹⁰

Legal References:

England v. State, 887 S.W.2d 902 (Tex. Crim. App. 1994).
England v. State, Supra.
England v. State, Supra.
Texas Penal Code 8.06.
Texas Penal Code 2.03.
Hernandez v. State, 161 S.W.3d 491 (Tex. Crim. App. 2005).
Texas Penal Code 2.03(d). See also Hernandez v. State, Supra.
England v. State, Supra.
Hernandez v. State, Supra.
Torres v. State, 980 S.W.2d 873 (Tex. App. 1998).