## Facts

- Texas law-enforcement officer J. Nichols ran a proactive online operation aimed at identifying adults seeking sex with children.
- Nichols posted a Craigslist advertisement while posing as “Kelly Franklin,” a 14-year-old girl seeking companionship from older men.
- The initial Craigslist posting contained no explicit sexual content.
- Dustin Day, a 27-year-old man, responded to the advertisement and began communicating with “Franklin.”
- During the exchange, Nichols (as “Franklin”) reminded Day that “she” was 14 years old.
- Day continued the conversation and stated that he “like[d] younger girls.”
- After multiple sexually explicit messages, Day proposed sexual activity and arranged an in-person meeting with “Franklin.”
- When Day arrived at the agreed meeting place, Nichols arrested him for soliciting a minor.
- At trial, Day requested a jury instruction on the affirmative defense of entrapment, claiming Nichols induced the offense through the online interaction.
- The trial court refused the requested entrapment instruction, concluding the evidence did not support the defense.
- The jury convicted Day, and the trial court sentenced him to 20 years’ imprisonment.
- Day appealed, challenging the denial of the entrapment instruction.

## Issues

1. Whether the evidence raised the statutory defense of entrapment such that the trial court was required to instruct the jury on entrapment.

## Decision

- The court of appeals affirmed the conviction and sentence.
- The trial court did not err by refusing an entrapment instruction because the evidence did not show that law enforcement induced Day by persuasion or other means likely to cause an ordinarily law-abiding person of average resistance to commit the offense.
- The officer’s Craigslist post and subsequent communications were treated as providing an opportunity for the offense rather than inducing it; Day initiated and continued sexually explicit solicitation after being told the “girl” was 14.

## Legal Principles

- Under Texas Penal Code § 8.06, entrapment requires proof that (1) a law-enforcement agent induced the defendant to commit the offense by persuasion or other means likely to cause persons to commit the offense, and (2) the conduct would have caused an ordinarily law-abiding person of average resistance to commit the offense.
- Law enforcement may use undercover methods, including decoys, and may present an opportunity to commit an offense; opportunity alone is not inducement for entrapment purposes.
- A defendant is entitled to a defensive jury instruction only if there is some evidence from any source that supports each element of the defense; if the evidence does not raise inducement as defined by § 8.06, the instruction may be refused.
- In evaluating whether an entrapment instruction is required, courts focus on whether the police conduct went beyond solicitation or opportunity and amounted to persuasion or similar pressure that would overcome ordinary resistance.

## Conclusion

The Ninth Court of Appeals affirmed Day’s conviction because the Craigslist decoy operation and message exchange did not amount to inducement under Texas’s entrapment statute; the record showed, at most, that law enforcement provided an opportunity and that Day pursued sexual solicitation after being reminded the “girl” was 14, so the trial court properly denied the requested entrapment jury instruction.


Day v. State, 2015 WL 6121398, No. 09-14-00488 (2015)