Comment

A Texas defendant may raise a claim of entrapment pretrial as a matter of law. Tex. Code Crim. Proc. art. 28.01, § 1(9). Pretrial resolution of such a claim is, however, disfavored: “[A] defendant is entitled to dismissal of the charges under section 8.06 in the pretrial hearing context only when he can establish entrapment as a matter of law with conflict-free, uncontradicted, uncontested or undisputed evidence.” Hernandez v. State, 161 S.W.3d 491, 499 (Tex. Crim. App. 2005).

When entrapment is submitted to the trial judge, the trial court should instruct the jury on the abstract law and apply that law to the facts of the case. The application provision of the instruction should identify all the individuals the defendant claims engaged in entrapment. Vega v. State, 394 S.W.3d 514 (Tex. Crim. App. 2013). The application provision need not summarize the defendant’s version of the facts. Kennard v. State, 649 S.W.2d 752, 761–62 (Tex. App.—Fort Worth 1983, pet. ref’d). Accord Bocanegra v. State, No. 05-97-00492-CR, 1999 WL 482629 (Tex. App.—Dallas July 12, 1999, pet. ref’d) (not designated for publication).

Objective–Subjective Approach. Texas Penal Code section 8.06(a) was construed in England v. State, 887 S.W.2d 902 (Tex. Crim. App. 1994), as imposing a combined subjective and objective approach. The persuasion used must be such as is “likely to cause persons to commit the offense.” Tex. Penal Code § 8.06(a).This is an objective standard.

England recognized that, in some jurisdictions, the requirement that the accused have been induced also requires a purely objective inquiry into whether the defendant was subject to efforts at persuasion. Section 8.06(a), however, reflects an intention to impose a subjective requirement. A person was induced to engage in criminal conduct, under England, only if “but for the persuasive aspect of the police conduct, [the person] would not have engaged in the conduct charged.” England, 887 S.W.2d at 912.

England addressed the matter in the context of whether the state was entitled to offer evidence of extraneous offenses by the accused in response to a claim of entrapment. Since the inducement matter involves the subjective motivation of the accused, England held, the state was entitled to introduce such evidence.

Nothing in England addressed the question of whether jury charges may or perhaps must go beyond the statutory language to implement the legislative intent discerned in the decision. As the England analysis itself suggested, the court’s own nearly twenty-year delay in recognizing the meaning of the statutory language suggests that this meaning might not be effectively conveyed in a jury charge that simply tracks the statute. The instruction at CPJC 8.35 provides optional language to this effect.

Subjective “Inducement” Prong. The subjective requirement that the defendant have been induced to engage in the conduct constituting the offense by persuasion or other means used by law enforcement agents appears to inject into Texas entrapment law the concept of “predisposition” that is the major focus of entrapment under a purely subjective approach.

Clearly, inducement is not established by proof that but for the law enforcement agents’ actions the defendant would not have engaged in the precise criminal activity he did commit, at the precise time and location involved in the case. The question is whether he was sufficiently predisposed to commit offenses similar to the one charged in the case that had he not been offered the opportunity to commit this specific offense he would nevertheless have committed another similar one.

This arguably meshes with the explicit statutory statement, “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” Tex. Penal Code § 8.06(a). If the officers simply afford the defendant an opportunity to commit in their presence an offense that the defendant is already predisposed to commit, the officers have not induced him to commit the offense.

The hard question is the extent to which the charge should attempt to convey this concept to the jury.

The instruction at CPJC 8.35 offers optional statements of the law of entrapment going considerably beyond the statutory language.

“Predisposition” under Texas Entrapment Law. The Texas court of criminal appeals’ development of the entrapment issue of inducement has not explicitly used the term predisposition that is so frequently emphasized in other jurisdictions’ entrapment discussions.

Nevertheless, the courts of appeals have quite offhandedly used that terminology to explain analyses under the Texas statute. E.g., Y’Barbo v. State, No. 05-98-01903-CR, 2000 WL 1035871, at *3 (Tex. App.—Dallas July 19, 2000, pet. ref’d) (not designated for publication) (noting that “[a]ppellant’s predisposition to sell drugs” is indicated by certain evidence); Lawrence v. State, No. 05-96-00154-CR, 1997 WL 627616, at *3 (Tex. App.—Dallas Oct. 13, 1997, no pet.) (not designated for publication) (citing Martinez v. State, 802 S.W.2d 334, 337 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) as holding “need for money for his family would not induce a person with no predisposition to deliver cocaine to sell cocaine for ‘quick money’ ”); Kilbourn v. State, No. 14-94-00759-CR, 1997 WL 295337, at *3 (Tex. App.—Houston [14th Dist.] June 5, 1997, no pet.) (not designated for publication) (identifying evidence that “refuted [appellant’s] claim that she was not predisposed to commit the offenses”).

The Dallas court of appeals held that a trial court did not err in refusing the defendant’s request to instruct the jury: “You may not consider whether the defendant was predisposed to commit the crime.” Tanner v. State, No. 05-91-00619-CR, 1992 WL 186259, at *3 (Tex. App.—Dallas Aug. 5, 1992, no pet.) (not designated for publication). Applying pre-England law, the court assumed that the requested charge accurately stated the applicable law but found that position adequately set out in the charge given. After England, the charge would not accurately convey the substantive law.

Although Penal Code section 8.06 does not use predisposition terminology, the case law suggests that a jury charge could properly use that terminology. The critical question is whether that terminology is useful in conveying to juries the full meaning of section 8.06 as construed in England.

Objective Prong. The objective prong of the entrapment standard is stated in Texas Penal Code section 8.06(a) in bare-bones terms: The persuasion or other means used to induce the defendant to engage in the conduct charged must be “likely to cause persons to commit the offense.” Tex. Penal Code § 8.06(a).

The leading discussions make clear the court of criminal appeals has read this bare-bones language as incorporating what general law usually requires in these situations: persuasion likely to cause unpredisposed and ordinary persons to develop the intention to commit the offense. As noted in England—

England, 887 S.W.2d at 914. Eleven years later, the court observed:

Hernandez, 161 S.W.3d 491 (quoting 2 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 5.3(c), at 421 (2d ed. 1999) (citations omitted)).

A jury charge using simply the statutory language likely fails to convey the full meaning of the objective prong as that prong has been construed by the courts. Some Committee members, however, were concerned that inclusion of nonstatutory language could be construed as a comment on the weight of the evidence. Therefore, the instruction at CPJC 8.35 provides the nonstatutory language in brackets as an option for practitioners.

Confession and Avoidance. Since at least Byerley v. State, 417 S.W.2d 407, 408 (Tex. Crim. App. 1967), Texas law has been that the defendant is not entitled to a jury instruction on entrapment if by his testimony at trial he denied committing the act constituting the offense. Byerley cited only Fifth Circuit federal law for the controlling proposition of law.

Elsewhere, the court has provided something of a rationale for the rule: “The reason that the defense of entrapment is not available to one who denies he committed the offense is that the defense of entrapment necessarily assumes that the act charged was committed.” Warren v. State, 565 S.W.2d 931, 933 (Tex. Crim. App. 1978) (citations omitted).

The court of criminal appeals has made clear that this rule does not require a formal admission of the offense:

Norman v. State, 588 S.W.2d 340, 345 (Tex. Crim. App. [Panel Op.] 1979) (citation omitted).

Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010), reaffirming that confession and avoidance applies with regard to the defense of necessity, did not address that case law apparently applying some version of this doctrine in entrapment cases.

Evidence Required to Mandate Jury Charge. Regarding when a charge on entrapment should be given, the court of criminal appeals explained:

1. 1) he engaged in the conduct charged;
2. 2) because he was induced to do so by a law enforcement agent;
3. 3) who used persuasion or other means; and
4. 4) those means were likely to cause persons to commit the offense.

Hernandez, 161 S.W.3d at 497.

This does not mean that defense evidence must support each of these. Ordinarily, for example, the state’s evidence will support the proposition that the defendant engaged in the conduct charged. To establish a right to a charge, the defendant need not himself offer evidence that he committed the conduct.