4.3 Exceptions, Defenses, Affirmative Defenses, and Justification
Key Takeaways
- Penal Code Sections 2.02, 2.03, and 2.04 assign different procedural effects to exceptions, defenses, and affirmative defenses; the labels are tested directly.
- An exception must be negated in the charging instrument and disproved by the state; a defense, once raised, must be disproved beyond a reasonable doubt.
- An affirmative defense (such as insanity) must be proved by the defendant by a preponderance of the evidence.
- Justification under Chapter 9 (self-defense, defense of others, necessity) treats otherwise criminal conduct as legally justified under specific statutory conditions.
Defense Labels Carry Different Burdens
The Penal Code uses three procedural labels — exception, defense, and affirmative defense — and each carries a different burden. Exam items routinely ask who proves what and what the state must do, so the labels are not wordplay.
| Label | Section | Who raises it | Burden / effect |
|---|---|---|---|
| Exception | PC 2.02 | Built into the offense | State must negate it in the charge and prove its absence beyond reasonable doubt |
| Defense | PC 2.03 | Defendant produces some evidence | Once raised, state disproves beyond a reasonable doubt |
| Affirmative defense | PC 2.04 | Defendant | Defendant proves by a preponderance of the evidence |
| Justification | PC Chapter 9 | Defendant (as a defense) | Conduct is justified if statutory conditions are met |
A defense is signaled in the code by the phrase “it is a defense to prosecution.” An affirmative defense is signaled by “it is an affirmative defense to prosecution.” The single word affirmative shifts the burden onto the defendant by a preponderance — a lower standard than beyond a reasonable doubt, but the burden now rests on the defense.
The general defenses
Chapter 8 lists defenses excluding criminal responsibility: insanity (PC 8.01, an affirmative defense — defendant did not know the conduct was wrong because of severe mental disease), mistake of fact (PC 8.02 — a reasonable mistake negating the required mental state), mistake of law (PC 8.03 — rarely available), intoxication (PC 8.04 — voluntary intoxication is NOT a defense, though it may mitigate at punishment), duress (PC 8.05), entrapment (PC 8.06), and age (PC 8.07 — generally no prosecution for conduct before age 15 except listed offenses).
Two of these are heavily tested. Mistake of fact is a defense only when the reasonable mistake negates the required mental state: a person who walks off with an identical-looking jacket genuinely believing it is his own lacks intent to deprive and may raise the defense to theft. Entrapment requires that a law-enforcement agent induced the conduct by persuasion likely to cause persons to commit the offense — merely affording an opportunity (an undercover drug buy at the going price) is not entrapment.
Duress (PC 8.05) requires compulsion by threat of imminent death or serious bodily injury and is unavailable if the actor recklessly placed himself in the coercive situation.
Justification (Chapter 9)
Justification does not deny that the conduct occurred; it makes the conduct lawful. Self-defense (PC 9.31) allows force when reasonably necessary to protect against another's unlawful force. Deadly force in self-defense (PC 9.32) is justified to protect against deadly force, aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery, and the actor's belief is presumed reasonable when an intruder unlawfully and with force enters an occupied habitation, vehicle, or business.
Necessity (PC 9.22) justifies conduct the actor reasonably believes is immediately necessary to avoid imminent harm, when the harm avoided clearly outweighs the harm caused.
Defense of a third person (PC 9.33) lets an actor use force or deadly force to protect another when he reasonably believes intervention is justified and the third person would have been justified in using that force himself. Protection of property is narrower: deadly force to protect property (PC 9.42) is justified only in limited circumstances such as preventing arson, burglary, robbery, theft during the nighttime, or criminal mischief during the nighttime, and only when the actor reasonably believes the property cannot be protected by other means.
Note the recurring nighttime element — a frequent exam distractor for property defenses.
Worked example
A person breaks a neighbor's window to pull a child from a burning car. The apparent offense is criminal mischief under Chapter 28. Do not jump to “no crime.” State the offense, then apply necessity (PC 9.22): saving the child outweighs the broken glass, so the conduct is justified.
Second example: a homeowner shoots a fleeing pickpocket in broad daylight as the thief runs off with a wallet. Self-defense (9.31/9.32) does not apply because the homeowner faced no unlawful force, and deadly force to protect property (9.42) fails because the theft occurred in daytime and the property loss could be addressed by other means. The shooting is not justified — the correct exam answer rejects the property-defense theory.
Procedural sequencing on the exam
When a question presents favorable facts, sort them by label before answering:
- Is the favorable fact built into the offense definition (an exception)? The state must negate it.
- Is it a defense ("it is a defense")? Once any evidence raises it, the state must disprove it beyond a reasonable doubt.
- Is it an affirmative defense ("it is an affirmative defense")? The defendant must prove it by a preponderance.
- Is it a justification under Chapter 9? Apply the specific statutory conditions, including any nighttime or imminence requirement.
Exam trap: Do not call every favorable fact an affirmative defense. Only the burden-shifting category (e.g., insanity) is an affirmative defense. And remember voluntary intoxication is never a justification — only involuntary intoxication can excuse, and only if it produced a Section 8.01-level inability to know the conduct was wrong.
Under Penal Code Section 2.04, who carries the burden of proof on an affirmative defense, and to what standard?
A driver who drank heavily of his own choice claims he should be excused because he was too intoxicated to form intent. Under Section 8.04, how is voluntary intoxication treated?
A person smashes a car window to rescue a trapped child from a vehicle on a hot day. Which Chapter 9 justification best fits?