Chapter 8
General Defenses
8.2 Burdens of Proof and Production under Texas Penal Code Chapter 2
Burden of Persuasion. Allocation of the burdens of persuasion under chapter 2 is more complicated. It is also perhaps somewhat counterintuitive.
With regard to affirmative defenses, the burden of proof or persuasion is on the defendant. In these situations, the burden is by the preponderance of the evidence. Tex. Penal Code § 2.04(d).
With regard to defenses generally, “a reasonable doubt on the issue requires that the defendant be acquitted.” Tex. Penal Code § 2.03(d). Thus the burden is on the state to prove that the law providing a defense does not govern.
Comment
Chapter 2 of the Texas Penal Code, titled “Burden of Proof,” addresses both burdens of persuasion and burdens of production. It distinguishes between “defenses” (matters “labeled by the phrase ‘It is a defense to prosecution . . .’ ”) and “affirmative defenses” (matters “labeled by the phrase ‘It is an affirmative defense to prosecution . . .’ ”). Tex. Penal Code §§ 2.03(a) (defense), 2.04(a) (affirmative defense). “A ground of defense in a penal law that is not plainly labeled in accordance with [this scheme]” is to be treated as a defense. Tex. Penal Code § 2.03(e).
Burden of Production. A criminal defendant has under chapter 2 what could be called a “burden of production” regarding both defenses and affirmative defenses. This simply means that the defendant has a right to a jury instruction on a defense or affirmative defense only if certain evidence has been produced before the jury. Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007).
Under chapter 2, “[t]he issue of the existence” of a defense or affirmative defense is submitted to the jury only if “evidence is admitted supporting” the defense or affirmative defense. Tex. Penal Code §§ 2.03(c) (defense), 2.04(c) (affirmative defense).
Shaw explained further—
[A] defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true. In determining whether a defense is thus supported, a court must rely on its own judgment, formed in the light of its own common sense and experience, as to the limits of rational inference from the facts proven. If a defense is supported by the evidence, then the defendant is entitled to an instruction on that defense, even if the evidence supporting the defense is weak or contradicted, and even if the trial court is of the opinion that the evidence is not credible. But the evidence must be such that it will support a rational jury finding as to each element of the defense.
Shaw, 243 S.W.3d at 657–58 (footnotes omitted).
Nothing in Shaw or other authority indicates that the evidence must have been introduced by the party seeking the instruction. Consequently, the burden is less one of producing evidence than one of identifying to the trial court evidence before the jury supporting the defense or ground of defense.