I apologize for not being clear on this point. I took a shortcut with my language when I said does not have to be negated. Since I had pointed out in the first part that exceptions had to be negated by the DA in the charging document. I only meant that the defense (and affirmative defense) must not be negated in the charging document.ScottDLS wrote: ↑Sat Dec 30, 2023 11:20 amI see what you are saying and it may be semantics, however a couple clarifications that I think are important.srothstein wrote: ↑Fri Dec 29, 2023 10:47 pmI agree with you for real world applications, but for technical legal discussions there is a real difference. From a technical legal viewpoint, if you did not break the law then no crime occurred. If a crime did not occur, you cannot be indicted and tried. The fact that you can be arrested and tried, even if you cannot be convicted, means that the law was broken.ScottDLS wrote: ↑Thu Dec 28, 2023 11:12 pmAbout Defense to Prosecution. If you read the Texas Statutes Penal Code Chapter 2, it's first section states.
It then provides Affirmative Defenses, Defenses, and Exceptions which can be raised, before charging, at arraignment, and at trial and ALL of them require that the prosecution refute or prove they don't apply BEYOND A REASONABLE DOUBT before one can be convicted of the offense. In other words, if you have a Defense you haven't broken the law, because if raised at trial, you can't be convicted of the offense without the prosecution proving it (the Defense) didn't exist.PENAL CODE
TITLE 1. INTRODUCTORY PROVISIONS
CHAPTER 2. BURDEN OF PROOF
Sec. 2.01. PROOF BEYOND A REASONABLE DOUBT. All persons 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. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.
You could argue this is a matter of semantics. But I think it is misleading to say that you broke the law, if you did such and such, but you have a Defense. You didn't break the law, because the prosecution can't prove you did, because the law itself provided the Defense.
Harkening back 28 years prior to CHL, even Texas Peace officers only had a Defense to Prosecution for carrying a handgun, but it would have been ridiculous to say they were breaking the law, but had a Defense. Maybe tomato, tomahto to some...but that's the way I see it.
Perhaps this may be best understood by looking at the exact wording of how the exception and defenses work. The DA must negate the existence of an exception in the charging document and prove this at trial. This means the existence of an exception is an element of the offense. A defense does not have to be negated by the DA and is only submitted to the jury if the defendant provides evidence of the defense. And to win, the defendant must prove the defense beyond a reasonable doubt. An affirmative defense is also not negated by the DA and must be proven by the defendant. In this case, the proof only has to be to the level of a preponderance of the evidence (as in more likely to exist than not). The DA does not need to prove anything about the existence of the defense or affirmative defense until after the defendant has created it and shown enough evidence to meet the standards without the DA introducing contrary evidence.
And the real interesting legal question is chapter 46, section 46.15. It says the law does not apply. Chapter 2 of the Penal Code does not mention anything about a law not applying as any form of defense or exception. So, yeah, cops carrying guns are breaking the law and can be charged and would be convicted because there is no defense or exception for it. I do not foresee this ever happening in the real world, but the law is a very weird thing where unbelievable things happen in court all the time.
A Defense in fact must be negated to the jury, beyond a reasonable doubt, BY THE STATE. The difference from an exception Chapter 2 is that the State is not required to raise the issue at trial, if the defendant does not submit evidence of a Defense. Also the State is {ETA} not required to negate the Defense in advance of trial in the charging document like they are for an Exception. With an Exception a case should be dismissed before trial if the Exception is not refuted.A defense does not have to be negated by the DA and is only submitted to the jury if the defendant provides evidence of the defense. And to win, the defendant must prove the defense beyond a reasonable doubt.
Only an Affirmative Defense must be proven by the defendant, by a preponderance of the evidence, as you point out. However the fact of that Affirmative Defense, if accepted by the jury means that all elements of the offense have not been proven beyond a reasonable doubt by the State and therefore defendant must be acquitted.
I suppose you could argue that committing an offense with only an Affirmative Defense, is breaking the law, because the burden falls on the defendant at trial to prove it. Again perhaps semantics, but it bothers me. For example ethics rules for attorneys require them not to commit criminal offenses. Police officers, presumably are not supposed to knowingly commit criminal offenses aka "break the law". And with regards to 46.15, as you pointed out "non-applicability" since it doesn't use the specific language for an Exception is deemed to be a Defense. Charles has said this was purposeful in the drafting and that there is an appellate case holding such. Somewhere way back in the Forum archives, he posted this in response to a question from me. I just can't get my head around the fact that Peace Officers are breaking the law every day, knowingly, because they are carrying a handgun in their duties.
The question of negating during the trial is also a little different, IMO, from how you stated. If it is a defense and the defendant introduces some evidence, but not enough to prove beyond a reasonable doubt, the DA doesn't have to negate anything (with evidence). All he has to do is convince the jury the defendant did not prove enough to create the reasonable doubt. This is probably a real semantic/pedantic point of view, but it may be a very important point to someone someday. This works the other way also, with the defendant and the original charge. There have been cases where the prosecution rested and the defense moved right into closing arguments claiming the case had not been proven beyond a reasonable doubt. No evidence or negation of anything. It is a very risky tactic, but it has worked in some cases (and failed in others). On the other hand, if the defense introduces even one point of evidence on an affirmative defense, he wins unless the DA does introduce more evidence negating it.
And for everyone watching this discussion, I want to emphasize again that we agreed that most of the time in the real world a defense or affirmative defense means you did not break the law. The reason for this discussion is that the fine points of the law may actually come into play. One example that I firmly think was incorrectly decided was where Sgt. Daniel Perry was convicted of murder for shooting a protester in self-defense. I cannot see how his action was not justified under PC 9.32 on deadly force in defense of self.