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Understanding Affirmative Defenses in Houston

Understanding Affirmative Defenses in Houston

In some criminal cases, an alleged offender may be entitled to acquittal even if the prosecution has enough evidence to prove beyond a reasonable doubt that the accused person committed the alleged offense. If the alleged offender’s actions were justified by some legally accepted mitigating factor, this is known as an “affirmative defense.”

While a prosecutor has the burden of proving an alleged offender’s guilt beyond a reasonable doubt, the accused person has the burden of proving by a preponderance of the evidence that he or she had no legal alternative other than how he or she acted in that certain situation. In order to successfully argue an affirmative defense, it is highly recommended that an alleged offender be represented by experienced legal counsel.

Houston Lawyer for Affirmative Defenses

If you have been charged with a criminal offense for which you believe your actions could be justified under the law, you should immediately contact a skilled Texas criminal defense attorney. Matt Horak thoroughly investigates every case and considers every defense option.

Horak Law represents clients in the greater Houston area, including Fort Bend County, Galveston County, Brazoria County, Harris County, Montgomery County, Waller County, and Liberty County. Call our firm at (713) 225-8000 or toll-free at (800) 225-8009 to schedule a free, confidential consultation that will let us review your case and discuss your legal options.


Harris County Affirmative Defenses Overview


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Texas Law on Affirmative Defenses

The burden of proof is discussed in Chapter 2 of the Texas Constitution and Statutes Penal Code. Just as Penal Code § 2.01 establishes that all alleged offenders “are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt,” Penal Code § 2.04 further states that affirmative defenses in the code are so labeled by the phrase, "It is an affirmative defense to prosecution …”

This section of the Penal Code further states that:

  • The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.
  • The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.
  • If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.

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Types of Affirmative Defenses in Harris County

There are several different types of these defenses that may be utilized in Houston criminal cases. A few examples of affirmative defenses include:

  • Deadly Force in Defense of Person — Under Penal Code § 9.32, this can be a defense if the alleged offender used force against another person when and to the degree the actor reasonably believed the deadly force was immediately necessary to protect himself or herself against the other's use or attempted use of unlawful deadly force or to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
  • Duress — Under Penal Code § 8.05, this can be a defense if the alleged offender engaged in the proscribed conduct because he or she was compelled to do so by threat of imminent death, serious bodily injury, or threat of force.
  • Entrapment — Under Penal Code § 8.06, this can be a defense if the alleged offender engaged in the conduct charged because he or she was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense.
  • Insanity — Under Penal Code § 8.01, this can be a defense if the alleged offender at the time of the conduct charged as a result of severe mental disease or defect. However, the term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
  • Intoxication — Under Penal Code § 8.04, evidence of temporary insanity caused by intoxication—meaning a disturbance of mental or physical capacity resulting from the introduction of any substance into the body—can be introduced by the alleged offender in mitigation of the penalty attached to the offense for which he is being tried.  However, voluntary intoxication does not constitute a defense to the commission of crime.
  • Mistake of Fact — Under Penal Code § 8.02, this can be a defense if the alleged offender 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.
  • Mistake of Law — Under Penal Code § 8.03 , this can be a defense if the alleged offender reasonably believed the conduct charged did not constitute a crime and that he or she acted in reasonable reliance upon either 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 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.
  • Necessity — Under Penal Code § 9.22, this can be a defense if the alleged offender reasonably believed his or her conduct was immediately necessary to avoid imminent harm, the desirability and urgency of avoiding the harm clearly outweighed, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct, and a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
  • Self-Defense — Under Penal Code § 9.31, this can be a defense if the alleged offender used force against another person when and to the degree the alleged offender reasonably believed the force was immediately necessary to protect himself or herself against the other's use or attempted use of unlawful force.

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Texas Crimes With Possible Affirmative Defenses

Many crimes in Texas law have allowable affirmative defenses specifically listed in the applicable criminal code section. Some of the types of criminal charges in which these types of defense may apply can include:

  • Domestic Violence
  • Driving While Intoxicated (DWI)
  • Drug Charges
  • Gun / Firearm Charges
  • Juvenile Crimes
  • Marijuana Charges
  • Violent Crimes
  • Weapons Charges
  • Sexual Offenses
  • Theft / Property Crimes
  • Traffic Offenses
  • White Collar Crime

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Find a Criminal Defense Lawyer in Houston

You should not plead guilty to a crime and risk lengthy prison time as well as significant fines if there was no criminal intent in your actions. Matt Horak will explore all of your legal options and work throughout the legal process to help you obtain an outcome to your case that results in the fewest possible punishments.

Horak Law represents clients in Houston and surrounding areas like League City, Pasadena, Missouri City, Galveston, Richmond-Rosenberg, Spring, The Woodlands, Conroe, Sugar Land, and Pearland. Our firm can review your case when you call us at (713) 225-8000 or toll-free at (800) 225-8009 to set up a free legal consultation.


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1790 Hughes Landing Blvd #400 The Woodlands, TX 77380 (281) 907-4990
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5300 Memorial Dr #750 A Houston, TX 77007 (713) 225-8000
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Matt Horak Matt Horak is Board Certified in Criminal Law by the Texas Board of Legal Specialization since 2014