DISSENTING OPINION FROM DENIAL OF EN BANC REVIEW
HEDGES, Justice,dissenting.
I respectfully dissent. I would hold that the defense of entrapment, like a successful motion to suppress, does not entitle an applicant to expunction.
A person is entitled to expunction only if the following conditions exist:
(1) an indictment or information charging him with commission of a felony has not been presented against him for an offense arising out of the transaction for which he was arrested or, if an indictment or information charging him with a commission of a felony was presented, it has been dismissed and the court finds that it was dismissed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void....
Tex.Code Crim.PAnn. art. 55.01 (Vernon 1993) (emphasis added).
Entrapment is a defense established by the following two elements: (1) a law enforcement officer induces the defendant to commit the crime, and (2) the means used in the inducement would likely cause other persons to commit the crime. England v. State, 887 S.W.2d 902, 908-13 (Tex.Crim.App.1994). This definition clearly contemplates that the defendant committed the crime; prosecution is prohibited because we have made a societal judgment that in the context of the State’s misconduct, it would be unfair to punish the defendant for the illegal behavior. A defendant’s guilt is antithetical to the very concept justifying expunction: that there is no probable cause to believe that the defendant committed the offense in the first place.
The majority expands the availability of a tightly drawn remedy. I would avoid doing so. This case is analogous to Harris County Dist. Atty’s Office v. Pennington, 882 S.W.2d 529 (Tex.App.—Houston [1st Dist.] 1994, no writ); Harris County Dist. Atty.’s Office v. M.G.G., 866 S.W.2d 796 (Tex.App.—Houston [14th Dist.] 1993, no writ); and Ex parte Kilberg, 802 S.W.2d 17 (Tex.App.—El Paso 1990, no writ), in which courts have held that absence of probable cause to conduct a valid search and seizure cannot be equated with absence of probable cause for the grand jury to believe that the defendant committed the offense. I disagree with the majority’s distinction between those cases and the case before us. The majority writes that in the suppression cases, dismissal does not change the fact that the accused knowingly and voluntarily possessed the contraband or evidence. In contrast, the majority believes, the act of entrapment vitiates the elements of knowingly and intentionally in connection with the possession of the contraband. To the contrary, the essence of entrapment is that the defendant knowingly and intentionally committed the crime but is legally excused from punishment because of unacceptable behavior by the State.
Because I believe that in the instance of entrapment, there remains probable cause to believe that the defendant committed the crime, I would hold that appellee is not eligible for expunction of the indictment from his record.
For the foregoing reasons, I would reverse the judgment of the trial court.