Principles of Criminal Law: Defending Criminal Charges

Proof Beyond a Reasonable Doubt and the Presumption of Innocence

Sec. 2.01. Proof Beyond a Reasonable Doubt: Under Texas law, all persons are presumed to be innocent. No person may be convicted of an offense unless each element of that offense is proven beyond a reasonable doubt (B.A.R.D.).
Inference of Guilt: The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, an offense gives rise to no inference of guilt at his trial.
Impact of Defenses: Even if the state manages to prove their case beyond a reasonable doubt, a defense or an affirmative defense may still result in the acquittal of the defendant.

Criminal Charging Documents and Procedures

Filing of Charges: Criminal charges are filed by the attorney for the state.
Misdemeanor Cases: * Charges are filed based on a written complaint from a credible person, such as a peace officer, or more commonly, a legal assistant or investigator for the prosecutor. * The formal charging document in a misdemeanor case is called an information.
Felony Cases: * Matters are presented to a grand jury, which consists of $12$ members of the community summoned to serve. * The grand jurors decide whether there is probable cause that a person committed a felony offense, a requirement mandated by the Constitution. * The formal charging document in a felony case is called an indictment.
Content of Charges: Both the information and indictment allege that "on or about a certain date, in Hays County, Texas, the defendant did then and there… [elements of the offense]." * Example: "operate a motor vehicle in a public place while intoxicated." * This language is generally a direct cut-and-paste from the relevant statute.

The Jury Charge and Instructions

Function: At a jury trial, the judge provides the jurors with instructions on the law.
General Instructions: Includes universal principles such as the defendant's right not to testify, the burden of proof being on the state, and the standard of proof being beyond a reasonable doubt.
Case-Specific Law: Contains the law applicable to the specific case, which is a verbatim reproduction from the statute and the charging document (information or indictment).
Instruction on Defenses: If there is "some evidence" at trial regarding the application of a defense or affirmative defense, the court will include it in the jury charge. The instruction explains to jurors what the law requires for the defense to apply.

Defending Criminal Charges: Procedural Framework

Standard Defense Strategy: In many cases where no specific defense applies, the goal of the defense is simply to prevent the state from proving the elements of the offense beyond a reasonable doubt.
Going on the Offensive: The defense may produce evidence of a defense that leads to an acquittal, even if the jury believes the defendant committed the charged offense.
Burden of Production: The burden of production is on the defendant to produce "some evidence," regardless of source, on each element of the defense. If this evidence would support a rational inference that the element is true, the defendant is entitled to a jury instruction. * This right exists whether the evidence is weak or strong, unimpeached or contradicted, or regardless of the court's view of the defense's credibility. * Refusal to give an instruction where "some evidence" exists constitutes reversible error on appeal.
Burden of Persuasion: * Defenses: The defendant must produce "some evidence." The state then has the burden of disproving its application beyond a reasonable doubt. * Affirmative Defenses: The defendant must produce "some evidence." The defendant also has the burden of proving its application by a preponderance of the evidence.

Categorization of Defenses

Excuse: Society deems it inappropriate to hold the offender responsible. Examples: age, insanity, duress, entrapment.
Justification: The conduct is considered justified because it prevents or terminates a greater harm. Examples: self-defense, necessity.
General Defenses: Can be used for any crime (e.g., insanity).
Specific Defenses: Apply only to certain offenses (e.g., self-defense in assault or murder; consent in sexual assault or theft, though not in murder).
Exceptions: Not technically a defense, but an element of the offense the state must disprove. Statutes usually say, "It is an exception…" or "This section does not apply to…" * Example: Texas Penal Code $46.15$ regarding Non-applicability for Unlawful Carrying of Weapons.
Mitigation of Punishment: Not an acquittal, but a reduction in the level of offense or punishment. * Example: Murder $+$ Sudden Passion reduces the crime to a $2^{nd}$ degree felony.

Texas Penal Code Chapter 8: General Defenses

Infancy (Age Affecting Criminal Responsibility)

Common Law Standards: * Under $7$ years: Not criminally responsible. * Between $7$ and $14$ : Rebuttable presumption of lacking mental capacity. * $14$ and older: Rebuttable presumption of having capacity.
Texas Law (Sec. 8.07): * Adult: $17$ years of age or older at the time of the offense. * Juvenile: Between $10$ and $16$ years of age at the time of the offense. * No Capacity: Under $10$ years of age. * Prosecution Threshold: Generally, a person cannot be prosecuted for an offense committed when younger than $15$ , with complex exceptions. * Presumption of Incapacity: A person at least $10$ but younger than $15$ is presumed incapable of committing an offense. The prosecution must refute this by a preponderance of the evidence, showing the actor understood the conduct was wrong. * Death Penalty: No person can be punished by death for an offense committed while younger than $18$ (consistent with Roper v. Simmons). * Certification as Adult: Juveniles aged $14$ to $16$ can be certified as adults for various felonies (specifically capital felonies or murder) if the juvenile court waives jurisdiction. * Transfer Criteria: The court considers the severity of the offense (person vs. property), sophistication/maturity of the child, record/history, and public protection/rehabilitation prospects.

Insanity (Sec. 8.01)

Definition: An affirmative defense where the actor, as a result of a severe mental disease or defect, did not know their conduct was wrong at the time of the offense.
Mental Disease or Defect: Does not include abnormalities manifested only by repeated criminal or antisocial conduct.
Standard: Texas uses the M'Naghten Rule.
Insanity vs. Incompetency: * Insanity: Pertains to the time of the offense (a defense). * Incompetency: Pertains to the time of the trial. It is not a defense but a delay of trial to protect due process rights until the defendant can assist in their own defense.
Practicality: Rarely used. Usually involves serious cases with court-appointed experts. If found Not Guilty by Reason of Insanity ( $NGRI$ ), the person may face civil commitment.

Diminished Responsibility

Definition: Mental diseases or stresses that do not completely impair reasoning but lessen criminal responsibility.
Texas Application: Texas rejects this defense (except for children under $17$ ). However, it is admissible as punishment evidence after a conviction to lower the penalty.

Intoxication (Sec. 8.04)

Voluntary Intoxication: Not a defense to the commission of a crime. However, evidence of temporary insanity caused by voluntary intoxication may be introduced in mitigation of the penalty.
Involuntary Intoxication: Occurs if the actor is tricked or misinformed into consuming a substance. This is treated as an affirmative defense under the insanity standard: if a severe mental defect from involuntary intoxication meant the actor did not know their conduct was wrong.

Entrapment (Sec. 8.06)

Definition: A defense where the actor was induced by a law enforcement agent (or person acting under their instructions) to commit an offense via persuasion or methods likely to cause persons to commit the offense.
Texas Test: Did police use methods likely to induce an average citizen? Was the defendant predisposed to commit the offense?
Exclusion: Providing a mere opportunity to commit an offense is not entrapment.

Duress (Sec. 8.05)

Definition: An affirmative defense where the actor was compelled to engage in conduct by threat of imminent death or serious bodily injury to self or another.
Standard for Felonies: Threat of death or serious bodily injury.
Standard for Misdemeanors: Lower standard; compelled by force or threat of force.
Reasonable Firmness: The force or threat must be enough to render a person of "reasonable firmness" incapable of resisting.

Mistake of Fact (Sec. 8.02)

Definition: A defense if the actor formed a reasonable belief about a matter of fact that negated the required culpability (mental state) for the offense.
Lesser Offenses: The actor can still be convicted of a lesser included offense they would have been guilty of if facts were as they believed.
Example: Bouncing a check due to a register error or accidentally taking the wrong umbrella.

Mistake of Law (Sec. 8.03)

General Rule: Ignorance of the law is no excuse.
Exceptions: An affirmative defense exists if the actor reasonably relied on: 1. An official written statement by an administrative agency charged with interpreting the law. 2. A written interpretation in a court opinion or by a public official charged with interpreting that law.

Consent (Sec. 22.06)

Application: A defense to Assault, Aggravated Assault, or Deadly Conduct if: 1. Conduct did not threaten or inflict serious bodily injury. 2. The victim knew the conduct was a risk of their occupation, medical treatment, or scientific experiment.
Gang Exclusion: Not available if the offense was a condition of joining or continuing membership in a criminal street gang.

Texas Penal Code Chapter 9: Justification

General Rule (Sec. 9.02): Conduct that is justified under Chapter $9$ is a defense to prosecution.
Burden: These are defenses, meaning the defendant produces some evidence and the state must disprove them beyond a reasonable doubt.

Public Duty (Sec. 9.21)

Definition: Conduct is justified if the actor reasonably believes it is required or authorized by law, court order, or legal process.
Deadly Force: Not justified unless specifically required by statute or in the lawful conduct of war. There is no duty to retreat if deadly force is so justified.

Necessity (Sec. 9.22)

Elements: 1. Actor reasonably believes conduct is immediately necessary to avoid imminent harm. 2. Desirability/urgency of avoiding harm clearly outweighs the harm prevented by the law (standard of reasonableness). 3. No legislative purpose plainly appears to exclude the justification.

Self-Defense (Sec. 9.31)

Definitions: * Force: Use of physical power/violence to compel or restrain (dictionary definition). * Deadly Force (Sec. 9.01): Force intended or known to cause, or capable of causing, death or serious bodily injury. * Serious Bodily Injury: Injury creating a substantial risk of death, or causing death, serious permanent disfigurement, or protracted loss/impairment of a body member or organ. * Reasonable Belief (Sec. 1.07): A belief held by an ordinary and prudent man in the same circumstances. Viewed from the defendant's standpoint at the time, not in hindsight.
Apparent Danger: A person has the right to defend against apparent danger to the same extent as real danger (Hamel v. State, $1996$ ).
Castle Doctrine (Presumption of Reasonableness): Belief that force is immediately necessary is presumed reasonable if: * Attempted unlawful entry/removal from occupied habitation, vehicle, or business. * Commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. * The actor did not provoke the person and was not engaged in criminal activity (other than Class C traffic violations).
Stand Your Ground (No Duty to Retreat): No duty to retreat before using force if the actor has a right to be present, did not provoke, and is not engaged in criminal activity.
When Force is NOT Justified (9.31b): * Verbal provocation alone. * Resisting arrest/search by a peace officer (unless the officer uses excessive force before any resistance). * Consent to the exact force used. * Provocation by the actor (unless they abandon the encounter and the other person continues use of force). * Seeking discussion while carrying a weapon in violation of the law.

Deadly Force in Defense of Person (Sec. 9.32)

Justification: Allowed if force is justified under $9.31$ and the actor reasonably believes it is immediately necessary to: 1. Protect against unlawful deadly force. 2. Prevent imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Defense of Third Persons (Sec. 9.33)

Step-in-Shoes Rule: Justified if, under the circumstances as the actor reasonably believes them to be, the actor would be justified in using force/deadly force to protect themselves if they were in the third person's place, and intervention is immediately necessary.

Defense of Property (Sec. 9.41 & 9.42)

Force (9.41): Justified to prevent/terminate trespass or unlawful interference with property. Force is allowed for recovery if in "fresh pursuit" and the other used force, threat, or fraud.
Deadly Force (9.42): Justified to protect property from arson, burglary, robbery, aggravated robbery, or theft/criminal mischief during the nighttime. Only allowed if the actor believes property cannot be protected otherwise or other force would risk death/serious bodily injury.

Law Enforcement Use of Force

Legal Standards: * Tennessee v. Garner (1985): Police shootings are seizures under the $4^{th}$ Amendment and must be reasonable. Deadly force cannot be used on a fleeing felon unless they pose a threat of serious physical harm to the officer or others. * Graham v. Connor (1989): Force must be "objectively reasonable" based on the totality of circumstances known at the time. Factors: severity of crime, immediate threat posed, active resistance/flight.
Perceptual Distortions in Shootings: * Auditory Blunting: Experienced by $82\%$ of involved officers. * Tunnel Vision: Reported by $51\%$ . * Heightened Visual Acuity: Reported by $56\%$ . * Slow-motion progression: Experienced by $56\%$ . * Fast-motion progression: Experienced by $23\%$ .
The 21-foot Rule: Often cited but scientifically questionable. A study showed that for $95\%$ of officers to successfully draw and fire at a charging suspect, a distance of $32$ feet is required.

Special Relationships and Procedural Defenses

Use of Force in Special Relationships

Parent-Child (Sec. 9.61): Force (not deadly) is justified by a parent, stepparent, or those in loco parentis to a child younger than $18$ for reasonable discipline or promoting welfare.
Educator-Student (Sec. 9.62): Force (not deadly) is justified to maintain discipline or further a special purpose when entrusted with care/supervision.

Procedural Defenses

Double Jeopardy: Prevents prosecution for the same crime after acquittal or conviction. Does not prevent retrial after a hung jury or some mistrials.
Statute of Limitations: Jurisdictional time limits for prosecution. * Misdemeanors: $2$ years. * Felonies: $3$ years or longer. * No Limitation: Murder, many sexual assaults, leaving the scene of an accident involving death. * Tolling: Leaving the jurisdiction may stop the time limit from running.