CRIMINAL DEFENSES TO CRIMES IN TEXAS

Incompetency

If the Court determines there is evidence to support a finding of Incompetency, the Court shall stay (stop) all other proceedings in the case.

A person is presumed incompetent to stand trial if the person does not have:

(1)    Sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; OR

(2)    A rational as well as factual understanding of the proceedings against the person.

A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a Court by a preponderance of the evidence.

The following is a list of factors that the Court considers in making the determination of competency to stand trial.

The capacity of the Defendant during the criminal proceedings to;

(1)    Understand the charges against him/her and the consequences of the pending criminal proceedings;
(2)    Disclose to counsel pertinent facts, events, and states of mind;
(3)    Engage in a reasoned choice of legal strategies and options;
(4)    Understand the adversarial nature of criminal proceedings;
(5)    Exhibit appropriate courtroom behavior;

Also considered is:

(1)    Whether the Defendant has a diagnosable mental illness or is a person with mental retardation; and
(2)    Whether the Defendant is taking psychoactive or other medication.

See Articles 46B.003 & 46B.024 of the Texas Code of Criminal Procedure.

Insanity

If a Defendant is found to be mentally insane, at the time the alleged offense was committed, it may be used as a defense to prosecution.  This defense is only available if the Defendant did not know that his conduct was wrong.

(a)    The insanity defense provided in Section 8.01 of the Penal Code shall be submitted to the jury only if supported by competent evidence.

(b)    When the insanity defense is submitted, the trier of facts (judge or jury) shall determine and include in the verdict or judgment or both whether the defendant is guilty, not guilty, or not guilty by reason of insanity.

(c)     The trier of facts shall return a verdict of not guilty by reason of insanity if the prosecution has established beyond a reasonable doubt that the alleged conduct was committed and the defense has established by a preponderance of the evidence that the defendant was insane at the time of the alleged conduct.

(d)    A defendant who has been found not guilty by reason of insanity shall stand acquitted of the offense charged and may not be considered a person charged with a criminal offense.

See Article 46.03 of the Texas Code of Criminal Procedure.

Mistake of Fact

It is a defense to prosecution that the Defendant, 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.  (I.e., Mistake of fact can be used as a defense for some criminal offenses but not all criminal offenses).

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.

See Section 8.02 of the Texas Penal Code.

Mistake of Law

Generally, it is no defense to prosecution that the Defendant was ignorant of the provisions of any law after the law has taken effect; BUT

It is an affirmative defense to prosecution that the Defendant reasonably believed the conduct charged did not constitute a crime and that he/she 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 (generally a judge).

Although a Defendant's mistake of law may constitute a defense to the offense charged, he/she may nevertheless be convicted of a lesser-included offense of which he/she would be guilty if the law were, as he/she believed.

See Section 8.03 of the Texas Penal Code.

Intoxication

Generally, voluntary intoxication does not constitute a defense to the commission of crime.

Evidence of temporary insanity caused by intoxication may be introduced by the Defendant in mitigation of the penalty attached to the offense for which he/she is being tried.

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 (instruct) the jury in accordance with the provisions of this section.

"Intoxication" means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

See Section 8.04 of the Texas Penal Code.

Duress

It is a defense to prosecution, under the laws of the State of Texas that the Defendant engaged in the proscribed conduct because he/she was compelled to do so by threat of imminent death or serious bodily injury to himself/herself or another.

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

Compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.

This defense is unavailable if the Defendant intentionally, knowingly, or recklessly placed himself/herself in a situation in which it was probable that he/she would be subjected to compulsion.

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

See Section 8.05 of the Texas Penal Code..

Entrapment

It is a defense to prosecution that the Defendant engaged in the conduct charged because he/she 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.

"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.

See Section 8.06 of the Texas Penal Code.

Age Affecting Criminal Responsibility

Under the laws of the State of Texas, a person may not be prosecuted for or convicted of any offense that the person committed when younger than 15 years of age except for:

(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)    Certain traffic offenses under the Texas Transportation Code;
(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 other than public
       intoxication;
(5)    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
(6)    A capital felony.

No person may, in any case, be punished by death for an offense committed while he was younger than 17 years.

See Section 8.07 of the Texas Penal Code..

Public Duty

It is justifiable, under the laws of Texas, to violate certain laws IF the actor reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court, OR other government tribunal, OR in the execution of legal process.

The use of deadly force is NOT justified unless the actor reasonably believes the deadly force is specifically required by law OR unless it occurs in the lawful conduct of war.  IF deadly force is so justified, there is no duty to retreat before using it.

See Section 9.21 of the Texas Penal Code.

Necessity

Normally illegal conduct is justified if:

1)    The actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

2)    The desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct; AND

3)    A legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

e.g. -

See Section 9.21 of the Texas Penal Code.