Entrapment is a complete defense to a criminal charge, on the theory that government agents may not create a criminal scheme, encourage an innocent person to commit the crime, and then induce the commission of the crime—all so the government can prosecute the crime.

Criminal offenses such as the sale of narcotics and the bribery of public officials are generally committed by persons working together to achieve a criminal objective—as opposed to crimes that are committed against an unwilling victim. This often makes these consensual crimes more difficult to prosecute. To deter this criminal behavior, undercover police or FBI agents (or a person who has “flipped” and is working with the government) may encourage suspected persons to engage in the criminal behavior.

When criminal charges are filed to prosecute these crimes involving a government agent, the defendant often believes he was entrapped and that he may rely on the entrapment defense to avoid a conviction for the crime. When considering an entrapment defense, the first question is whether the criminal offense was induced by a government agent. And if the government has induced the defendant to break the law, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act before being approached by the government agent.

If the prosecution can prove the defendant was ready and willing to commit the crime whenever the opportunity was presented, the defendant will not be able to rely on the entrapment defense. But if the government’s pursuit of a criminal conviction leads to charges against an otherwise law-abiding citizen who, if left to his own devices would likely not violate the law, the defendant may rely on the entrapment defense to avoid being convicted of the crime.

In Texas, entrapment occurs when a law enforcement officer induces a person to commit a crime that they would not have been predisposed to commit. The entrapment defense is a complete defense to a criminal charge, meaning that if successful, it can lead to an acquittal. The key elements of this defense are the inducement by a government agent and the lack of predisposition on the part of the defendant. If a defendant can show that they were not ready and willing to commit the crime and only did so because of the government's persuasion or coercion, they may be able to assert entrapment. However, if the prosecution can prove beyond a reasonable doubt that the defendant was predisposed to commit the crime, the entrapment defense will not succeed. This defense is particularly relevant in cases involving consensual crimes, such as the sale of narcotics or bribery, where undercover operations are common. Texas courts will examine the nature of the government agent's involvement and the defendant's disposition towards committing the crime to determine the validity of an entrapment claim.