# Cooper v. State > Court of Criminal Appeals of Texas · January 11, 1956 · 162 Tex. Crim. 624 URL: https://www.frixlaw.com/law-library/cases/9639895 ## Case - **Full name:** Johnny Pierce Cooper v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 11, 1956 - **Citations:** 162 Tex. Crim. 624; 288 S.W.2d 762; 1956 Tex. Crim. App. LEXIS 1317 - **Precedential status:** Published - **Opinion:** Dissent by Davidson - **Judges:** Morrison, Woodley, Davidson - **Cited by:** 32 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9639895 ## Opinion text DAVIDSON, Judge (dissenting). As I construe and understand this holding of my brethren, they have licensed the commission of violations of the law and opened the way for the commission of illegal acts without penalty. Here is what they hold : If, for the mere purpose of instituting a criminal prosecution against a person, a peace officer induces such person to commit a crime which he had not contemplated committing and as a result of that inducement such person commits a crime, no prosecution will lie, because the person so induced has committed no crime because he was entrapped by the officers into committing the crime. My brethren quote one of the definitions of the term “entrapment,” as follows: “ ‘ . the inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal prosecution against him.’ ” *629 Further, and in connection with that definition, my brethren say: “However, if the criminal design originates in the mind of the officer, and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, this is entrapment, and in law may constitute a defense to such crime.” These two pronouncements of my brethren demonstrate, of and within themselves, the correctness of the proposition I first asserted. They magnify those pronouncements and make sure that no one will misunderstand their holding, for they reverse this case because the trial court failed to give the following charge to the jury: “ ‘You are further charged that if you find and believe from the evidence or if you have a reasonable doubt thereof that the defendant, Johnny Pierce Cooper, was induced at the instigation of Officer Turrigiano to commit the offense charged, if same was committed, with a view of prosecuting him for the same, without prior knowledge or information that the defendant had committed similar offenses, you will find the defendant not guilty and say so by* your verdict.’ ” It is apparent that what my brethren hold is that if a peace officer, by entrapment, induces another person to commit a crime, that person may not be persecuted or convicted of the crime because he was entrapped by the officer into committing it. So, neither the peace officer nor the person actually committing the crime may be punished therefor. Under the facts here presented, my brethren conclude that the officer was guilty of entrapping the appellant into committing the crime of procuring. Therefore, under the rule of law, as announced by my brethren, appellant should have been awarded an instructed verdict of not guilty, because there was no issue under the facts as to the entrapment. In this connection, I call attention to the fact that appellant testified as a witness in his own behalf and admitted his guilt of the crime of procuring, which was the crime charged against him. Under the holding, then, of the majority of the court, the person who is entrapped by peace officers into committing a *630 crime cannot be guilty thereof, even though he admits his guilt under oath. Such a doctrine is, to me, not only palpably erroneous but unsound and unsafe; it approaches absurdity. As demonstrating what I mean, let us assume the following: For the purpose of inducing another to commit a crime in order that he may prosecute him therefor, a peace officer approaches that person and suggests that he commit the crime of assault upon another, or the crime of theft, burglary, or any other offense. Prior thereto, the person so approached had never entertained the idea of committing a crime; but the suggestion has been implanted in his mind and he yields thereto and commits the crime. He is arrested and charged with the crime he has committed. Upon the trial of the case the officer admits the facts and that he entrapped the accused into committing the crime. The accused admits the commission thereof and testifies that he committed the crime because of the suggestion of the officer. None of these facts is disputed. Under the holding of my brethren here, the accused would be entitled, in such an instance, to an instructed verdict of not guilty because he had committed no crime — and this, notwithstanding the fact that an individual has been assaulted or a theft or burglary has been actually committed. Never, until today when my brethren announced it, has that doctrine been recognized in Texas. Judge Woodley, speaking for himself on motion for rehearing and for the writer of this opinion, in as late a case as Ivy v. State, 161 Tex. Cr. R. 371 , 277 S. W. 2d 713 , declared: “The courts of this State have not previously held that entrapment was a defense to crime, though the inducement was by an officer or agent of the State.” That holding is now no longer adhered to by a majority of this court who have now held that entrapment is not only a complete defense but prevents the accused from confessing to or admitting the crime. It is my understanding that this court has always recognized the doctrine of entrapment by peace officers, but it has never before recognized the fallacy that no offense has been *631 committed by one entrapped into committing it. To the contrary, rule in Texas has always been that when a peace officer entraps another person into the commission of a crime he becomes an accomplice thereto. And in order to convict upon his testimony, the state must corroborate his testimony the same as that of any other accomplice witness, and, when corroborated, a conviction will be sustained. I call attention to the fact that, here, the officer has fully admitted his guilty part in the crime. The views' here expressed were, in effect, those expressed by me in my dissent in the case of Brown v. State, (page 85, this volume), 282 S.W. 2d 224 . The Brown case was affirmed upon the proposition that the facts failed to show an entrapment even though the accused did commit the crime of procuring at the instance and suggestion of the officers. My brethren say that this case differs from the Brown case. I fail to see wherein or how they reach that conclusion. If entrapment is shown in this case, it was shown in the Brown case. In so far as the law is concerned, the difference between the Brown case and this case is, in my opinion, the same difference that exists between “six” and “a half dozen” — a difference only of words meaning the same thing! Finally, my brethren cite authorities from our federal courts as supporting their holding here. In so far as I am concerned, I am going to follow the Texas rule which has long been established and which is legally sound. If federal courts support the holding of the majority of this court, here, they are wrong and this court ought not to follow them. In his concurring opinion, my brother Woodley goes much further than does the majority opinion, for he adds thereto a new and more far-reaching rule. The rule to which he adheres is that if one on trial for a crime testifies that he committed the same at the suggestion of a peace officer, but for which suggestion he would not have done so, and prior to such suggestion had never committed such crime or contemplated the commission thereof, he would be entitled to be acquitted, upon the jury’s believing or having a reasonable *632 doubt of such facts. Judge Woodley says that common justice would so require and that such defense may be raised and shown by the testimony only of the accused; he points out that in this case the officer made no admission that there was a “scheme to secure the conviction of innocent persons by inducing them to violate the law in order that he might prosecute them therefor.” The fallacy of such rule is demonstrated by the following assumed case: “A” is on trial for the crime of robbery. The evidence overwhelmingly shows his guilt. He testified that he committed the crime but that he was entrapped into doing so by “B,” a peace officer, in that “B” came to him and suggested that he do so; that he had never theretofore committed such a crime nor had he formed any idea of committing this robbery; that after studying over the matter for a time he decided that the suggestion of the officer was a good one and that he would commit and did commit the robbery; and that he would not have done so but for the suggestion of “B,” the peace officer. Under such a state of facts, the holding of my brethren would be that “A” would be entitled to have the jury instructed that if they believed or had a reasonable doubt thereof “A” would not be guilty of the crime of robbery. When did the suggestion of another become not only a justification but a complete defense to the commission of a crime by the accused? Never, until my brethren here so decree. My brother Woodley says that no self-respecting tribunal would permit “A” to be convicted upon a finding that the facts testified to by the accused were true. Such, indeed, is a terrible indictment of those great judges who have heretofore graced this court and who steadfastly refused to adopt and agree to such a holding as that which my brethren here announce. This conviction should be affirmed, and the Texas doctrine adhered to. For the reasons stated, I respectfully enter my dissent to the reversal of this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9639895. Public record. Not legal advice.