CHAPTER 2. BURDEN OF PROOF
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.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.
1, 1994.
Sec. 2.02. EXCEPTION. (a) An exception to an offense in this
code is so labeled by the phrase: "It is an exception to the
application of . . . ."
(b) The prosecuting attorney must negate the existence of an
exception in the accusation charging commission of the offense
and prove beyond a reasonable doubt that the defendant or
defendant's conduct does not fall within the exception.
(c) This section does not affect exceptions applicable to
offenses enacted prior to the effective date of this code.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.
1, 1994.
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.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.
1, 1994.
Sec. 2.04. AFFIRMATIVE DEFENSE. (a) An affirmative defense in
this code is so labeled by the phrase: "It is an affirmative
defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the
existence of an affirmative defense in the accusation charging
commission of the offense.
(c) The issue of the existence of an affirmative defense is not
submitted to the jury unless evidence is admitted supporting the
defense.
(d) If the issue of the existence of an affirmative defense is
submitted to the jury, the court shall charge that the defendant
must prove the affirmative defense by a preponderance of
evidence.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.
1, 1994.
Sec. 2.05. PRESUMPTION. (a) Except as provided by Subsection
(b), when this code or another penal law establishes a
presumption with respect to any fact, it has the following
consequences:
(1) if there is sufficient evidence of the facts that give rise
to the presumption, the issue of the existence of the presumed
fact must be submitted to the jury, unless the court is satisfied
that the evidence as a whole clearly precludes a finding beyond a
reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted to the
jury, the court shall charge the jury, in terms of the
presumption and the specific element to which it applies, as
follows:
(A) that the facts giving rise to the presumption must be proven
beyond a reasonable doubt;
(B) that if such facts are proven beyond a reasonable doubt the
jury may find that the element of the offense sought to be
presumed exists, but it is not bound to so find;
(C) that even though the jury may find the existence of such
element, the state must prove beyond a reasonable doubt each of
the other elements of the offense charged; and
(D) if the jury has a reasonable doubt as to the existence of a
fact or facts giving rise to the presumption, the presumption
fails and the jury shall not consider the presumption for any
purpose.
(b) When this code or another penal law establishes a
presumption in favor of the defendant with respect to any fact,
it has the following consequences:
(1) if there is sufficient evidence of the facts that give rise
to the presumption, the issue of the existence of the presumed
fact must be submitted to the jury unless the court is satisfied
that the evidence as a whole clearly precludes a finding beyond a
reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted to the
jury, the court shall charge the jury, in terms of the
presumption, that:
(A) the presumption applies unless the state proves beyond a
reasonable doubt that the facts giving rise to the presumption do
not exist;
(B) if the state fails to prove beyond a reasonable doubt that
the facts giving rise to the presumption do not exist, the jury
must find that the presumed fact exists;
(C) even though the jury may find that the presumed fact does
not exist, the state must prove beyond a reasonable doubt each of
the elements of the offense charged; and
(D) if the jury has a reasonable doubt as to whether the
presumed fact exists, the presumption applies and the jury must
consider the presumed fact to exist.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.
Amended by Acts 1975, 64th Leg., p. 912, ch. 342, Sec. 2, eff.
Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.
Sept. 1, 1994.
Amended by:
Acts 2005, 79th Leg., Ch.
288, Sec. 2, eff. September 1, 2005.