Texas Court Rejects Entrapment Defense in Drug Case

A trial court committed harmless error by giving a jury instruction on the entrapment defense that did not identify a confidential informant (“CI”) as a “law enforcement agent,” according to the Texas Court of Criminal Appeals. Vega v. Texas, No. PD-1438-12, slip op. (Tex. Crim. App., Mar. 20, 2013). The defendant had claimed that he was entrapped by a CI into selling drugs to an undercover police officer. In upholding the verdict, the court reviewed the elements of the entrapment defense, and it examined how a trial court may commit error in instructing a jury on defensive issues.

The defendant was arrested after delivering two ounces of methamphetamine to an undercover police officer in Johnson County, Texas. He had sold one ounce to the officer about two weeks earlier, after an individual identified as “Jerry,” a CI working with the police, introduced the two. The defendant said that he and his wife had a seriously ill child, no health insurance, and inadequate means to pay her medical bills. He said that Jerry approached and befriended him, convinced him to do a few drug deals to make extra money, and introduced him to both a supplier and the undercover cop posing as a buyer.

The trial court’s jury instruction on the defense of entrapment stated that the jury should return a verdict of not guilty if it found beyond a reasonable doubt that the defendant committed the charged offense, but was induced to do so by a law enforcement officer. The instruction did not specify that both the undercover officer and the CI were considered “law enforcement agents” for the purpose of the entrapment defense. The defendant did not object to the instruction. The jury found the defendant guilty on two counts of delivery and one count of possession of a controlled substance, and sentenced him to 10-, 25-, and 5-year prison sentences, respectively.

The defendant appealed, arguing that the trial court’s failure to instruct the jury about the CI was error that caused “egregious harm.” Id. at 6. The appellate court ruled that, because the defendant did not request a jury instruction on the defensive issue of entrapment and did not object to the instruction given by the trial court, he did not preserve the error.

The Court of Criminal Appeals affirmed the verdict, but ruled that the omission of the CI from the jury instruction was error, albeit harmless error. Trial judges have no duty to instruct a jury on defensive issues unless requested to do so by a defendant, the court noted. Once a trial court gives an instruction on a defensive issue, whether the defense requested it or not, it becomes subject to error and requires reversal if it harmed the defendant. Id. at 8, citing Almanza v. Texas, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The trial court gave the jury correct definitions of “entrapment” and “law enforcement agent,” but only identified the undercover officer by name. Vega, slip op. at 9.

Since the defendant did not object to the instruction at trial, he had to prove that he suffered egregious harm from the error. The court concluded that no egregious harm occurred due to the error, based on at least two factors. First, the entrapment defense only applied to the first sale of drugs to the undercover officer, and not the one at which police arrested the defendant. Second, the evidence indicated that the defendant had engaged in other drug sales to people other than the undercover officer.

Police, prosecutors, and courts are obligated to respect the constitutional rights of defendants in criminal cases. For more than two decades, board-certified criminal defense attorney Michael J. Brown has fought for the rights of west Texas defendants. Prior to starting his career in criminal defense, he worked as an FBI agent and a federal prosecutor. To schedule a confidential consultation to discuss your case, contact us today online or at (432) 687-5157.

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DUI Arrest Demonstrates How “Civil” Penalties May Result from Criminal Cases, Texas Criminal Lawyer Blog, June 11, 2013
Appellate Court Must Defer to Trial Court’s Findings of Fact, According to Texas Court of Criminal Appeals, Texas Criminal Lawyer Blog, May 29, 2013

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