PENAL CODE
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;  Acts 2005, 79th Leg., ch. 288, Sec. 2, eff. Sept. 1, 2005.
.
ANDY NOLEN HOUSTON CRIMINAL LAWYER
OVER 17 YEARS  CRIMINAL LAW EXPERIENCE
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