What Is Considered “Entrapment” When It Comes to a Drug Crime?

August 5th, 2020 by Tad Nelson in Drug Crime

Police officers often rely on undercover work and confidential informants to help gather evidence of potential drug crimes. In some cases, however, these actions may cross the line from a legitimate investigation into what is known as “entrapment.” As defined by the Texas Penal Code, entrapment refers to a situation where a defendant engaged in criminal conduct “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.”

Houston Court: No Proof Confidential Informant Acted at the Direction of Police

Entrapment is an affirmative defense to a drug charge. But merely claiming entrapment is not enough to get a judge to present that defense to a jury. As the Houston-based Texas First District Court of Appeals explained in a recent opinion, Brown v. State, there are both subjective and objective elements to an entrapment defense. The subjective element “requires evidence that the defendant, himself, was induced to commit the charged offense by the persuasiveness of law enforcement’s conduct.” The objective element requires further proof that the “ persuasion was such as to cause an ordinarily law-abiding person of average resistance to still commit the offense.”

What this means in practice is that law enforcement may try and “tempt” someone into committing a crime by presenting an opportunity. Only when an officer’s actions rise to the level of “active and overt persuasion” does it constitute entrapment. Essentially, the defendant needs to prove they had no predisposition to commit the alleged crime before the police persuaded them to commit it.

drug deal

In the Brown case, the defendant failed to make this showing. Prosecutors charged the defendant with attempting to sell heroin to an undercover police officer. At trial, the defendant admitted he used drugs. But he denied ever serving as a drug dealer. He said a woman working as a confidential informant for the police “put pressure on him” to make the sale to the undercover officer. On this basis, the defense requested a jury instruction on entrapment, which the trial judge denied.

The First District agreed the entrapment instruction was not justified under these set of facts. The main issue here, the appeals court said, was that entrapment requires proof the defendant was “induced by a law enforcement agent” to commit the charged offense. As a general rule, Texas courts have said that confidential informants are not considered “law enforcement agents” unless they are “acting under either the specific or general instruction of law enforcement.”

In this case, the appeals court held, the defendant provided no evidence–aside from his own conclusory statements–to prove the confidential informant acted at the direction of law enforcement. The defendant, therefore, did not present sufficient evidence to warrant an entrapment instruction.

Speak with a Houston Drug Crimes Defense Lawyer Today

Many people charged with crimes believe they were coerced or tricked by the police. Proving such allegations is often difficult. But one way you can help level the playing field in your favor is to work with an experienced criminal defense attorney who will zealously advocate your interests in court. If you have been charged with a drug offense and need legal advice, contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today by calling 281-280-0100.

 

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