Legal Test for An ''Entrapment Argument''
In England v. State, 887 S.W.2d 902, 913 (Tex. Crim. App. 1994), the court of criminal appeals found the statute to include both a subjective and objective test for entrapment.
First, a person must be "induced" to commit the offense, then "the nature of the police activity involved, without reference to the predisposition of the particular defendant, " must be examined. Id. at 908.
The England court described a purely objective test as follows:
The hallmark of a purely objective test for entrapment is the hypothetical person.
Once the defendant can show he has been the target of persuasive police conduct, regardless of whether he was in fact persuaded to commit an offense, the focus is directed to the police conduct itself.
The question becomes whether the persuasion used by the law enforcement agent was such as to cause a hypothetical person--an ordinarily law abiding person of average resistance--to commit the offense, not whether it was such as to cause the accused himself, given his proclivities, to commit it. Id.
The amount of persuasion used to persuade an ordinarily law abiding person of average resistance who is not pre-disposed to commit the offense will vary from case to case. See. e.g., Torres v. State, 980 S.W.2d 873, 877 (Tex. App.-San Antonio, 1998, no pet.); Sebesta v. State, 783 S.W.2d 811, 814 (Tex. App.-Houston [1st Dist.] 1990, pet ref'd).
Affirmative findings of objective inducement are generally limited to outrageous law enforcement actions occurring in instances of the rarest and most egregious government misconduct. See Hubbard v. State, 770 S.W.2d 31, 39 (Tex. Crim. App.-Dallas 1989, pet. ref'd).