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An affirmative defense allows a defendant to avoid legal responsibility for the charged offense.

When a defendant uses an affirmative defense, the defendant is admitting guilt. However, the affirmative defense provides an excuse or justification for why the action transpired. An affirmative defense has the ability to mitigate the legal consequences of an unlawful action.

Affirmative defenses include the following:

  • Insanity
  • Mistake of Fact
  • Mistake of Law
  • Intoxication
  • Duress
  • Entrapment
  • Age

Insanity as an Affirmative Defense

insanity as a defenseOne of the hardest defenses to prove, and one of the most misunderstood defenses in Texas, is the affirmative defense of Insanity. While our firm has successfully mounted insanity as a defense, it remains an elusive defense.

The insanity defense exists because there are times when we as a society have decided that the person should not be held responsible for that action. The most common justifications have been codified as “affirmative defenses.

Insanity as a Defense to Criminal Acts

One reason the insanity defense is so hard to raise successfully is
because Code of Criminal Procedure Article Article 46C.154 provides that no one can tell the jury of the consequences if they find the defendant was insane. In others words, neither the prosecutor nor the defense attorney nor the judge will inform the jury that if a person is found Not Guilty by Reason of Insanity, then that person will be committed for treatment in a maximum security facility and for a disposition within 30 days (in cases where there was dangerous conduct) or the person will be will be detained for a civil commitment proceeding (in cases where there was no dangerous conduct.) The jury will not be informed that a person found Not Guilty by Reason of Insanity will not be released – although this seems like it would be relevant and pertinent information for a juror to know when they are struggling with finding a person guilty or not guilty.

How long will a person who is found NGRI (Not Guilty by Reason of Insanity) be committed for?

Under Code of Criminal Procedure 46C.002, a person who successfully asserts the defensive theory of insanity (Not Guilty by Reason of Insanity) in Texas will not be released from custody and instead will be evaluated to determine if the person should be committed for a period not to exceed the maximum possible prison sentence for the offense they were charged with. That means for a first degree charge, if a person is found not guilty by reason of insanity, they could be committed for the rest of their life.

After the applicable term of cimmitment, they must be released although they can be ordered to a mental hospital or other inpatient or residential care facility or ordered to receive outpatient or community-based treatment and supervision only under civil commitment proceedings.

Texas follows the M’Naghten Rule when testing legal insanity. This test focuses on whether the defendant comprehends right from wrong at the time the offense was committed. A defendant may plead the insanity defense if the facts surrounding the event provide that mental illness prevented the defendant from understanding that his/her actions were of a wrongful nature.

“The purpose of the insanity defense issue is to determine whether the accused should be held responsible for the crime, or whether his mental condition will excuse him from responsibility.”
Graham v. State, 566 S.W.2d 941, 948 (Tex. Crim. App. 1978).

The insanity defense and the requirements to raise the defense is codified in Texas Penal Code Section 8.01.

(a) 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.

(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

Burden of Proof for the Insanity Defense

The defendant has the burden of production and persuasion when pleading insanity. The defendant must prove the affirmative defense by a preponderance of the evidence standard. That is because there is essentially a presumption that a person is sane so there is not reason for the State to put on evidence of his/her sanity to start. The defense may raise the issue of insanity through lay or expert testimony. The defense only has to raise this evidence by eliciting testimony that proves by a preponderance of evidence that the defendant was insane at the time of the offense.

Proving insanity by a preponderance of evidence means that the defense only has to show that it was “more likely than not” that the defendant was insane at the time of the offense.

Burden Shifting in Texas Insanity Cases

If the defense proves, by a preponderance of evidence, that the defendant was guilty at the time of the offense, the State can only prevail if the State can prove the defendant’s sanity with proof beyond a reasonable doubt. See Manning v. State, 730 S.W.2d 744, 748-49 (Tex.Crim.App. 1987).

beyond a reasonable doubtAn Exception to the Defense Burden to Prove Insanity

In the rare situation where a court has issued a prior adjudication of insanity, and that adjudication has not been set aside, a presumption of insanity exists and the State must prove sanity beyond a reasonable doubt.

Attorneys need to be aware that Texas Code of Criminal Procedure Art. 46C.051-.052 requires that notice of an intention to offer evidence of the insanity defense should be filed with the court. In addition, attorneys should certify that such notice has been furnished to the prosecutor on the case.

(1) At least 20 days prior to the date the case is set for trial; or

(2) If the court sets a pretrial hearing before the twenty-day period, the defendant shall give notice at the hearing.

If these requirements are not followed, evidence of insanity will not be admissible unless the court finds that good cause exists for failure to give notice.

Mistake of Fact as an Affirmative Defense in Texas

mistake of fact defense texasA mistake of fact is a defense that can be raised if the defendant made a mistake, the mistake was one that could be reasonably made, and if the facts were as the defendant thought they were, the defendant would not have had the requisite mental state to be convicted of a crime. That’s a complicated definition and a defense that can be complex in practice.

As with all affirmative defenses, with mistake of fact, the accused is first affirming that the offense did take place, while also providing a legal basis to prevent the accused from being held criminally responsible for the offense.

Example of a Mistake of Fact Defense in Texas

An oversimplified example may be this: the defendant picks up a cellphone with the mistaken belief that it is his. He later charged with theft of the cell phone. His mistake negates the “intentionally or knowingly” mental state requirement that the prosecution must prove in order to secure a conviction.

So why is this not a commonly raised defense? For one very important reason: It is up to a jury (or fact-finder) to determine if the mistaken belief was reasonable. See Granger v. State, 3 S.W.3d 36 (Tex. Crim. App. 1999)

Notice that a mistake of fact can only be raised in a case where there is a mental state or mens rea requirement. It cannot be raised in strict liability cases. Whether or not the defense can be raised, and whether the defense will be successful, is largely dependent on the facts and whether the defense attorney can convince the fact-finder that the mistake of fact was reasonable. For example, while the offense itself is not strict liability in sexual assault of a minor case, there is no requirement that the accused knew the victim was underage, therefore you cannot raise a mistake of fact defense claiming the accused was mistaken about the age of the victim.

If you or a loved one has been charged with a criminal offense where you believe there may have been a mistake of fact, it is important to have an attorney who understand juries and the prosecutors in the jurisdiction that you are in. An experienced criminal defense attorney who has tried a large number of jury trials will be able to give you an idea of how strong your mistake of fact defense is and how it may play out with a jury.

The Mistake of Fact defense is laid out in Penal Code Section 8.02:

(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

(b) Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser-included offense of which he would be guilty if the fact were, as he believed.

Mistake of Law as an Affirmative Defense in Texas


mistake of law as a defenseYou may have heard the adage, “ignorance of the law is no excuse.” In fact, in Texas a person is presumed to have knowledge of the law. There are, however, exceptions to that rule. Despite this, Texas recognizes a limited number of situations where a mistake of the law can actually be raised as a defense. In order to prevail on a mistake of fact affirmative defense in Texas, the accused must show that he reasonably believed his actions were not criminal in nature and that he reasonably relied on:

  1. a written, official statement of the law from an administrative agency or
  2. public official charged with responsibility for interpreting the law, or
  3. a written opinion of a court of record interpreting the law.

In other words, if a person relies on a written statement from a government agency, a public official or a court, and the person’s belief in that statement is reasonable, then the person may not be criminally responsible for his otherwise criminal actions.

For example, if the Office of the Attorney General put out a statement that marijuana is legal in Texas, a person might reasonably rely on that misstatement of the law and might escape the criminal penalty. Notice that even relying on an official misstatement of law might not be enough if the fact finder does not believe reliance on the misstatement was reasonable.

It is worth pointing out there is no exception for a person’s mistaken reliance on their attorney’s legal advice. The statement must be in writing, made by one of the entities listed above, and one that was reasonable relied upon.

Mistake of Law is laid out as an affirmative defense under Section 8.03 of the Penal Code:

(a) It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect.

(b) 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.

(c) Although an actor’s mistake of law may constitute a defense to the offense charged, he may nevertheless be convicted of a lesser-included offense of which he would be guilty if the law were, as he believed.

Section 1.07 (42) of the Penal Code defines “reasonable belief.”

Reasonable belief means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.

Intoxication as a Defense in Texas

INTOXICATION AS A DEFENSEIs intoxication a defense to a criminal case in Texas?

For purposes of whether or not intoxication can be a defense to a crime in Texas, let’s start with what Texas defines intoxication in regards to the defense. Penal Code Section 8.04(d) defines intoxication as the disturbance of mental or physical capacity resulting from the introduction of any substance into the body. That is a fairly broad definition. Yet, intoxication is not an easy defense to raise.

Voluntary Intoxication as a Defense

First and foremost, voluntary intoxication is not a defense at the guilt-innocence phase of a trial. See Penal Code Section 8.04(a). This means that if a person makes a decision to drink or consume any other intoxicating substance, that person cannot later claim they could not form the requisite intent to commit a crime. It is important to notice that it does not require that the person foresee how intoxicated they would become.

Involuntary Intoxication as a Defense

There are situations, however, where a person might be intoxicated without doing so voluntarily. Involuntary intoxication can be used as a defense with the accused exercised no independent judgment or volition in taking the intoxicant and as a result of his severe mental defect caused by intoxication the accused did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law. See Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. 1979), Mendenhall v. State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002).

Involuntary intoxication might come up in three scenarios. First, if the accused was unaware of ingesting the intoxicant; second where force or duress is used to force ingestion of the intoxicant; or finally involuntary intoxication by prescription. Involuntary intoxication by prescription medication occurs only if the individual had no knowledge of possible intoxicating side effects of the drug, since independent judgment is exercised in taking the drug as medicine, not as an intoxicant. Mendenhall at 565.

Notice that involuntary intoxication is a defense that negates the mental state required for an offense. As a result, offenses that do not require a culpable mental state, such as driving while intoxicated, will most likely not be able to prevail on an involuntary intoxication defense.

Temporary Insanity Due to Intoxication

Temporary insanity due to intoxication is an affirmative defense that can be raised in the punishment phase of a trial. As an affirmative defense, it is contingent on the defense to establish the accused was intoxicated and that the intoxication rendered the accused temporarily insane. See Arnold v. State, 742 S.W.2d 10, 14 (Tex.Crim.App. 1987) Since this can only be raised at the punishment phase, this is generally seen as mitigation evidence. It is unique though because once the affirmative defense is raised, the judge is to instruct to jury on voluntary intoxication as a mitigating issue.

(a) Voluntary intoxication does not constitute a defense to the commission of crime.

(b) Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried.

(c) When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was caused by intoxication, the court shall charge the jury in accordance with the provisions of this section.

(d) For purposes of this section “intoxication” means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

Duress as an Affirmative Defense

duressLike other affirmative defenses in Texas, duress does not negate an element of the offense charged, but instead provides a reason why the accused should not be held criminally responsible for his acts. Duress involves a threat or use of force against the accused compelling the accused to act unlawfully.

Duress in Misdemeanors

In misdemeanor cases, the defense may be raised by showing the accused acted because he was facing a threat of force or was being forced to act.

Duress in Felonies

To raise the defense in a felony case, the accused must show that the threat was of imminent death or serious bodily injury to him or another.

Once facts have been raised to establish the basis for the defense, the defense must then show that the force or threat of force would render a person of reasonable resistance incapable of defying the threat or force.

“The defense of duress is available if the defendant or a member of his family was under present, imminent, or impending threat of death or serious bodily injury; the defendant had not recklessly or negligently placed himself in a situation in which it was probable that the defendant would be forced to choose criminal conduct; the defendant had no reasonable opportunity to escape from the situation and avoid threatened harm; and the direct criminal act taken in avoidance of the threatened harm.” United States v. Liu, 960 F.2d 449 (5th Cir. 1992), cert. denied.

If you are charged with an offense where you believe that duress may be an issue, you will want an experienced criminal defense attorney representing you who understands the challenges raising a successful duress defense. For example, if the trial court does not determine that the threat was imminent, it will exclude evidence that the threat was made. See Kessler v. State, 850 S.W.2d 217, 222 (Tex.App.-Fort Worth 1993, no pet.).

Burden of Proof for the Affirmative Defense of Duress

As an affirmative defense, the defendant will have both the burden of production and persuasion on an issue involving duress by a preponderance of the evidence.
Duress is laid out as a defense in Penal Code Section 8.05:

(a) 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.

(b) In a prosecution for an offense that does not constitute a felony, it is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force.

(c) Compulsion within the meaning of this section exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.

(d) The defense provided by this section is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.

(e) It is no defense that a person acted at the command or persuasion of his spouse, unless he acted under compulsion that would establish a defense under this section.

Entrapment as Affirmative Defenses in Texas

entertainmentA person accused of a criminal offense may raise the affirmative defense of entrapment by asserting that a government official, or someone acting under the direction of a government official, overreached in tempting the defendant to commit a criminal act. However, simply providing an opportunity for the defendant to commit an offense is not enough to rise to the level of an entrapment defense.

The elements of entrapment are (1) whether the accused was induced to engage in the conduct by a law enforcement agent; and (2) whether the means of inducement used were likely to cause persons, not the accused, to commit the offense. The focus of the first part of this test is whether a government agent induced the accused or merely provided an opportunity for them to act. The second part of the test determines whether other persons would have committed the crime under the circumstances at hand.

The first key to successfully raising an entrapment defense is understanding the test applied. Texas no longer follows a purely objective interpretation of the test. Instead, the current test is a mix between subjective and objective elements. First, a law enforcement officer must have induced the particular accused to commit the crime (subjective element). Second, the inducement must have been such as would likely have caused other persons to commit the crime (objective element).

The second key to successfully raising an entrapment defense is understanding when the defense may be raised. In addition to being raised at trial, entrapment may be raised in pre-trial practice under Section 28.01(9) CCP. “The entrapment defense is unique in that the Legislature deliberately provided it may be tested and determined at a pretrial hearing. When the entrapment issue is determined favorably to accused, the only question remaining is the proper remedy.” Taylor v. State, 886 S.W.2d 262, 265 (Tex. Crim. App. 1994).

To preserve the defense for appeal, counsel needs to declare the defense at trial through use of pretrial motion, directed verdict, or requesting jury instructions. A successful entrapment defense raised pre-trial equates to a finding of acquittal and is not appealable by the State.

Burden of Proof for Entrapment

The defense has the burden of production of evidence in raising the issue of entrapment. Once the defense raises the issue, the prosecution has the burden of disproving the defense beyond a reasonable doubt. In other words, the prosecution has the burden of persuasion.

Entrapment is laid out as a defense in Penal Code Section 8.06.

(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.


Sec. 1. The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State’s attorney, to appear before the court at the time and place stated in the court’s order for a conference and hearing. The defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding. The pre-trial hearing shall be to determine any of the following matters: . . . (9) Entrapment;

Age as an Affirmative Defense in Texas

age as a defense

Age is the final affirmative defense to a criminal act that is laid out in Chapter 8 of the Penal Code. In Texas, a juvenile is someone who has not yet reached the age of 17. While there are some exceptions, generally a person under 17 cannot be prosecuted for a criminal offense as an adult.

In Texas, before the age of 17, the State faces hurdles in prosecuting a person criminally instead of through the juvenile justice system.
Family Code, Sec. 54.02 provides:

The juvenile court may waive its exclusive original jurisdiction over a child who meets age/offense criteria if it finds, after a full investigation and hearing, that (1) there is probable cause to believe the child committed the offense alleged and (2) because of the offense’s seriousness or the child’s background the welfare of the community requires a transfer for criminal proceedings. The prehearing investigation must include a diagnostic study, a social evaluation, and an investigation of the child, his circumstances, and the circumstances surrounding the offense. The law recites various factors that must be considered in making the transfer determination. If the court transfers (or retains) jurisdiction over one offense, it must likewise transfer (or retain) jurisdiction over all others arising out of the same criminal transaction. Once the juvenile court transfers jurisdiction of a case, the adult criminal court may not remand it.

Also note that once a person has been transferred to the criminal justice system, they will generally be back in the criminal justice system, and not the juvenile justice system, after any felony arrest, regardless of age.

Family Code, Sections 54.02(m) and (n) provide:

If a child has previously been transferred to adult court, the juvenile court must waive jurisdiction over any subsequent felony offense, without the elaborate investigation required in connection with discretionary waivers, unless the child was acquitted or not indicted, won a dismissal with prejudice, or had his conviction reversed on a final appeal in the previous case.

Penal Code Sec. 8.07 provides:

AGE AFFECTING CRIMINAL RESPONSIBILITY. (a) A person may not be prosecuted for or convicted of any offense that the person committed when younger than 15 years of age except:

(1) perjury and aggravated perjury when it appears by proof that the person had sufficient discretion to understand the nature and obligation of an oath;

(2) a violation of a penal statute cognizable under Chapter 729, Transportation Code, except for conduct for which the person convicted may be sentenced to imprisonment or confinement in jail;

(3) a violation of a motor vehicle traffic ordinance of an incorporated city or town in this state;

(4) a misdemeanor punishable by fine only;

(5) a violation of a penal ordinance of a political subdivision;

(6) a violation of a penal statute that is, or is a lesser included offense of, a capital felony, an aggravated controlled substance felony, or a felony of the first degree for which the person is transferred to the court under Section 54.02, Family Code, for prosecution if the person committed the offense when 14 years of age or older; or

(7) a capital felony or an offense under Section 19.02 for which the person is transferred to the court under Section 54.02(j)(2)(A), Family Code.

(b) Unless the juvenile court waives jurisdiction under Section 54.02, Family Code, and certifies the individual for criminal prosecution or the juvenile court has previously waived jurisdiction under that section and certified the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age except an offense described by Subsections (a)(1)-(5).

(c) No person may, in any case, be punished by death for an offense committed while the person was younger than 18 years.

(d) Notwithstanding Subsection (a), a person may not be prosecuted for or convicted of an offense described by Subsection (a)(4) or (5) that the person committed when younger than 10 years of age.

(e) A person who is at least 10 years of age but younger than 15 years of age is presumed incapable of committing an offense described by Subsection (a)(4) or (5), other than an offense under a juvenile curfew ordinance or order. This presumption may be refuted if the prosecution proves to the court by a preponderance of the evidence that the actor had sufficient capacity to understand that the conduct engaged in was wrong at the time the conduct was engaged in. The prosecution is not required to prove that the actor at the time of engaging in the conduct knew that the act was a criminal offense or knew the legal consequences of the offense.


The post Affirmative Defenses in Texas | What is an Affirmative Defense to a Crime? appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett is a premier criminal defense firm based in Fort Worth, Texas. Our attorneys focus exclusively on criminal law and represent clients charged with crimes at both the state and federal level. We handle everything from DWI to capital murder to white collar crime. Collectively, our attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of our senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal law, the highest designation an attorney can reach. We are the firm people turn to when the stakes are high and they are facing the biggest problem in their lives. - Contact Varghese at  
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