Defenses and Affirmative Defenses
Texas criminal law distinguishes between defenses and affirmative defenses. The distinction determines who bears the burden of proof and, more importantly, what a defendant concedes by raising one.
Defenses
A defense negates the offense. When the evidence raises a defense, the State must disprove it beyond a reasonable doubt. The burden never shifts to the defendant.
The Texas Penal Code labels these “It is a defense to prosecution….” Examples:
Mistake of fact (section 8.02). The defendant formed a reasonable but mistaken belief about a fact, and that mistaken belief negated the culpable mental state required for the offense.
Entrapment (section 8.06). Law enforcement induced the defendant to commit an offense using persuasion or means likely to cause a person to commit it. The defense applies when the State created the crime rather than detecting it.
Consent (section 22.06). In certain assaultive-conduct cases, the alleged victim consented to the conduct.
Affirmative Defenses
An affirmative defense does not negate the offense. It concedes the conduct but argues the defendant should not be held criminally responsible. The defendant bears the burden of proving an affirmative defense by a preponderance of the evidence.
Examples:
Insanity (section 8.01). At the time of the conduct, the defendant did not know that the conduct was wrong because of a severe mental disease or defect.
Mistake of law (section 8.03). The defendant reasonably believed the conduct was not criminal, in reliance on an official written statement of the law or a court opinion.
Duress (section 8.05). The defendant acted because of a threat of imminent death or serious bodily injury to the defendant or another person. The compulsion must be such that a person of reasonable firmness could not have resisted.
Renunciation (section 15.04). In an attempt, solicitation, or conspiracy case, the defendant voluntarily and completely abandoned the criminal objective and took affirmative steps to prevent the offense.
Age-gap defense in certain sex offenses. In some child-sex-offense cases, it is an affirmative defense that the defendant was not more than three years older than the complainant. The availability of this defense depends on the specific offense charged.
The strategic problem
Raising an affirmative defense is a concession. It tells the jury: the defendant did this, but should not be punished for it. That concession eliminates defenses that challenge whether the defendant committed the act at all.
A defendant who pleads insanity cannot simultaneously argue that someone else did it. A defendant who claims renunciation has admitted entering into the conspiracy. The choice between a defense and an affirmative defense shapes the entire trial.
Getting this decision wrong is not recoverable. A criminal-defense lawyer who understands both the law and the facts of the case will identify which defenses are available, which are strategically viable, and which foreclose other options.
Frequently Asked Questions
What is an affirmative defense in Texas criminal law?
An affirmative defense concedes the conduct but argues the defendant should not be held criminally responsible. The defendant bears the burden of proving an affirmative defense by a preponderance of the evidence. Examples include insanity, duress, and mistake of law.
What is the difference between a defense and an affirmative defense in Texas?
A defense negates the offense, and the State must disprove it beyond a reasonable doubt. An affirmative defense concedes the conduct, and the defendant must prove it by a preponderance of the evidence. The distinction matters because raising an affirmative defense is a concession that can foreclose other defenses.
Who has the burden of proof for an affirmative defense in Texas?
The defendant does. Unlike a defense, where the burden stays on the State, an affirmative defense must be proved by the defendant by a preponderance of the evidence.