Defenses and Affirmative Defenses in Texas

 Posted on March 20, 2023 in Uncategorized

A "defense" and an "affirmative defense" are two distinct legal concepts used in criminal law. A defense is a claim or argument made by the accused that negates or refutes the prosecution's case, without admitting to the commission of the crime. Essentially, it asserts that the defendant's actions were justified, or the prosecution has not met its burden of proving the defendant's guilt beyond a reasonable doubt.

The Texas Penal Code has various defenses, labeled in the code, "It is a defense to prosecution...." Some examples follow.

Examples of Defenses Under Texas Penal Code.

Section 8.02 - Mistake of fact: It is a defense to prosecution that the actor, through mistake, formed a reasonable belief about a matter of fact if their mistaken belief negated the kind of culpability required for the commission of the offense.

Section 8.05 - Duress: It is a defense to prosecution that the actor engaged in the proscribed conduct because they were compelled to do so by threat of imminent death or serious bodily injury to themselves or another.Section 8.06 - Entrapment: It is a defense to prosecution that the actor engaged in the conduct charged because they were induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense.Section 22.06 - Consent as a defense to assaultive conduct: It is a defense to prosecution that the conduct in question was performed under the victim's consent.Section 42.03 - Obstructing a highway or other passageway: It is a defense to prosecution that the obstruction was a reasonable response to an emergency.

In contrast, an affirmative defense admits to the commission of the crime but argues that the defendant should not be held legally responsible due to certain mitigating circumstances. With an affirmative defense, the burden of proof shifts to the defendant to establish the defense by a preponderance of the evidence. A few examples of affirmative defenses follow.

Examples of affirmative defenses under Texas Penal Code.

Section 7.24-Corporate liability. It is an affirmative defense to prosecution of a corporation, an association, a limited liability company, or another business entity under Section 7.22(a)(1) or (a)(2) that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent its commission.Section 8.01-Insanity. It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.Section 8.03-Mistake of law. It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon: (1) an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or (2) a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question.Section 8.05-Duress. It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.Section 15.04-Renunciation, in an attempt, solicitation, or conspiracy case. It is an affirmative defense to prosecution for attempt that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor avoided commission of the offense attempted by abandoning his criminal conduct or, if abandonment was insufficient to avoid commission of the offense, by taking further affirmative action that prevented the commission.Section 20.02-Age, in an Unlawful Restraint case. It is an affirmative defense to prosecution under this section that: (1) the person restrained was a child who is 14 years of age or older and younger than 17 years of age; (2) the actor does not restrain the child by force, intimidation, or deception; and (3) the actor is not more than three years older than the child.Age, in some child-sex-offense cases. It may be an affirmative defense to prosecution that the actor was not more than three years older than the victim; other requirements must be met in some sorts of cases.

The difference between defenses and affirmative defenses is crucial because it determines trial strategy. As a practical matter, raising an affirmative defense negates defenses. It is essential that, if you are in serious criminal trouble, you have a lawyer who can help you navigate these complex decisions.