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My AccountChapter 8
- 8.1 Categorizing Defenses
- 8.2 Burdens of Proof and Production under Texas Penal Code Chapter 2
- 8.3 Explaining to Jury State’s Burden of Proof on Defenses
- 8.4 Nonstatutory Defensive Positions and Jury Instructions
- 8.5 Instructions on Inconsistent Defenses
- 8.6 “Confession and Avoidance”: Need to Admit Offense
- 8.7 Failure to Instruct on Defense Cannot Be “Fundamental” Error
- 8.8 Defendant’s Right to Have No Instruction on Defense
- 8.9 Relationship of Necessity to Other Defensive Positions
- 8.10 Insanity Generally
- 8.11 Consequences of Insanity Acquittal
- 8.12 Defining “Wrong”
- 8.13 Defining “Severe Mental Disease or Defect”
- 8.14 Instruction—Insanity
- 8.15 Diminished Capacity Generally
- 8.16 Basic Framework for Mistake of Fact under Texas Law
- 8.17 Pre-1974 Texas Mistake-of-Fact Law
- 8.18 Other Jurisdictions and Potential Constitutional Problem
- 8.19 Possible Alternative Approach—Two Mistake-of-Fact Defenses
- 8.20 Reasonableness of Mistake as Matter for Court Rather Than Jury
- 8.21 Committee’s Approach
- 8.22 Instruction—Mistake of Fact
- 8.23 Texas Penal Code Distinction between Mistakes of “Fact” and Mistakes of “Law”
- 8.24 Instruction—Mistake of Law
- 8.25 Voluntary Intoxication Generally
- 8.26 Instruction—Voluntary Intoxication
- 8.27 Involuntary Intoxication Generally
- 8.28 The Committee’s Approach to Involuntary Intoxication
- 8.29 Instruction—Involuntary Intoxication
- 8.30 General Law of Duress
- 8.31 Instruction—Duress (Felony)
- 8.32 Instruction—Duress (Misdemeanor)
- 8.33 Entrapment Generally
- 8.34 Status of “Informers”
- 8.35 Instruction—Entrapment
Comment
A special problem of jury submission arises when the defendant claims to have been entrapped by a person the defendant contends was a “person acting in accordance with instruction from [personnel of federal, state, or local law enforcement agencies],” that is, an informer. See Tex. Penal Code § 8.06(b). When, if ever, should the jury charge tell the jurors that the person was a law enforcement agent as a matter of law? If the issue is left for the jury, should the jury be given any guidance for determining whether the informer was a law enforcement agent?
The leading case is the panel decision in Rangel v. State, 585 S.W.2d 695 (Tex. Crim. App. [Panel Op.] 1979). The jury charge on entrapment, in part, told the jury to focus on whether “[the defendant] was induced to [commit the offense] by Johnny Rodriguez, who was a person acting in accordance with instructions from a law enforcement agent, to-wit: Richard Moreno . . . .” Rangel, 585 S.W.2d at 697. The opinion leaves somewhat unclear whether Rangel contended that this improperly submitted the status of Rodriguez to the jury or rather that it did so by improperly telling the jury that it should find entrapment only if it found Moreno specifically instructed Rodriguez to entrap Rangel. In any case, the panel found no error and seemed to approve the jury submission: “The language of the charge merely tracked . . . the statutory language, and by tracking the language of Sec. 8.06(b) the charge of the trial court correctly instructed the jury on the law of entrapment.” Rangel, 585 S.W.2d at 698.
Rangel’s discussion continued to address in obvious dicta the analysis necessary to determine whether an informer who entraps does so as a law enforcement agent:
[The] examination must cover two areas.
The first area of inquiry should be the specific case at bar. A search must be made to determine if the officer specifically instructed his agent or informant to use an improper procedure to “make a case” against a particular defendant. If such specific instructions are discovered, the entrapment defense is available. . . . However, there is a second area of inquiry to which attention must also be given.
The control or instruction from a police officer to his informant which would constitute entrapment may also be of a general nature. Such general control might arise when an informant has been used repeatedly. After the informant becomes “experienced,” he realizes how to “set up” people to make cases. In such a situation, there is no specific instruction but the police official is still exercising control by failing to properly instruct his agents. Factors for consideration in such cases include number of cases this informant has been involved in and their disposition, if available; the amount and method of compensating the informant; the working relationship between the police officer and the informant; and his contacts with police officers.
Rangel, 585 S.W.2d at 699. Texas appellate courts continue to inquire whether an informer was under either the specific or general control of law enforcement. E.g., Beal v. State, 35 S.W.3d 677, 687 (Tex. App.—Houston [1st Dist.] 2000), rev’d on other grounds, 91 S.W.3d 794 (Tex. Crim. App. 2002); Gonzalez v. State, No. 2-02-291-CR, 2003 WL 21101520 (Tex. App.—Fort Worth June 23, 2003, pet. ref’d) (not designated for publication), overruled on other grounds by Howard v. State, 145 S.W.3d 327 (Tex. App.—Fort Worth 2004, no pet.).
In England v. State, 887 S.W.2d 902 (Tex. Crim. App. 1994), the defendant claimed he was entrapped by Ayala, a probationer acting as a paid informant. The court of criminal appeals noted, “The trial court in this cause instructed the jury that Ayala was a ‘person acting in accordance with instructions from’ a law enforcement agent as a matter of law. Whether that was a correct instruction on the facts of this case is not before us.” England, 887 S.W.2d at 908 n.5.
One court noted that no authority was cited in support of a claim that the defendant was entitled, on the basis of uncontested evidence, to have the jury told that the informant involved was a law enforcement agent as a matter of law. It found insufficient evidence to establish the informer’s status as a matter of law. Bocanegra v. State, No. 05-97-00492-CR, 1999 WL 482629 (Tex. App.—Dallas July 12, 1999, pet. ref’d) (not designated for publication). See also Farris v. State, No. 07-95-0189-CR, 1997 WL 136447 (Tex. App.—Amarillo Mar. 26, 1997, pet. ref’d) (not designated for publication) (any error in submitting informer’s status to jury was not preserved); McKinney v. State, No. 01-89-00538-CR, 1990 WL 151232 (Tex. App.—Houston [1st Dist.] Oct. 11, 1990, no pet.) (not designated for publication) (evidence did not show informers were law enforcement agents as a matter of law, so trial judge did not err in failing to “name” them in jury charge on entrapment). In Vega v. State, 394 S.W.3d 514, 520 (Tex. Crim. App. 2013), the court of criminal appeals noted that the evidence showed (and the state did not dispute) that the informant was an agent acting under the control of law enforcement officers and that it was error not to charge the jury that they could acquit if they believed the defendant was induced to commit the offense “by [the informant], acting as a law enforcement agent” or by the officer, or both.
If an informer’s status is submitted to the jury, the charge should permit the jury to find the informer a law enforcement agent under either of the alternatives set out in Rangel. One court explained:
The jury charge in this case instructed the jury to find appellant not guilty if it found that informant was specifically instructed by law enforcement to entrap appellant. This improperly limits the entrapment defense by omitting the situation in which there is no specific instruction but the informant is still acting under the general control of law enforcement.
Garza v. State, No. 05-96-00711-CR, 1998 WL 546134, at *4 (Tex. App.—Dallas Aug. 27, 1998, no pet.) (not designated for publication).
In Beal, the court found no error in a charge requiring specific instruction when there was no evidence of general control. The discussion suggested, however, that in an appropriate case the defendant would be entitled to what the court called “a general agent charge.” Beal, 35 S.W.3d at 687.
The instruction at CPJC 8.35 contains provisions permitting the trial judge to, in effect, submit to the jury the question of whether a private person was acting in accordance with instructions from law enforcement agency personnel. Alternatively, the jury can be instructed that the private person was, as a matter of law, a law enforcement agent.