So tell me who decides the underlined parts, i.e. who decides whether evidence of VESP is submitted to a jury? I think you have to convince the judge first.PENAL CODE
TITLE 1. INTRODUCTORY PROVISIONS
CHAPTER 2. BURDEN OF PROOF
Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.
I would be happy to be wrong, but I don't think the legally has to prove anything other than the elements of the offense.
I note this post from Mr. Cotton:
http://www.texaschlforum.com/viewtopic. ... 41#p176583
An excerpt, with my emphasis added :
I don't believe the prosecution has to prove you the defendant was a VESP. I believe the defendant has to prove, at least to the degree that raises reasonable doubt in the minds of the jury, that he is a VESP...."Defense to prosecution" and "does not apply" are the same thing and you can be arrested. You will have to prove your "defense" at trial. As a practical matter, most prosecutors will treat "does not apply" like they do exceptions, but they are not required to do so.