Defense to prosecution

[jgalvan]

What does "defense to prosecution" mean? Referring to PC 46.035

Thanks.

[RPB]

http://www.statutes.legis.state.tx.us/d ... m/PE.2.htm" onclick="window.open(this.href);return false;
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.

Other definitions are below that on the link above

[Keith B]

EDIT: RPB was faster on the trigger.

[jgalvan]

Oh how I hate the laws can you explain that to me in English lol.
sorry.

[RPB]

Oh how I hate the laws can you explain that to me in English lol.
sorry.

I know what you mean ...
But

My legalese to English Translator machine is in the shop, but perhaps Steve or Charles or one of the others who had more caffeine and more recent exposure to such than I will be along shortly.

Last criminal procedure/criminal law course I had was early 1980, I worked at a personal Injury firm till 2007, and I forget enough that I don't want to explain wrong or be accused of Unauthorized Practice of Law ...so ....

I'm not a lawyer person

[jimlongley]

My understanding, which may be defective, is: A defense to prosecution means that you can use it as a defense when you are prosecuted, with the court's permission, and you have to prove you were doing that which is "a defense to prosecution."

Thus:

§ 46.03. PLACES WEAPONS PROHIBITED. (a) A person commits
an offense if the person intentionally, knowingly, or recklessly
possesses or goes with a firearm, illegal knife, club, or
prohibited weapon listed in Section 46.05(a):
(1) on the physical premises of a school or
educational institution, any grounds or building on which an
activity sponsored by a school or educational institution is being
conducted, or a passenger transportation vehicle of a school or
educational institution, whether the school or educational
institution is public or private, unless pursuant to written
regulations or written authorization of the institution;
(2) on the premises of a polling place on the day of an
election or while early voting is in progress;
(3) on the premises of any government court or offices
utilized by the court, unless pursuant to written regulations or
written authorization of the court;
(4) on the premises of a racetrack;
(5) in or into a secured area of an airport; or
(6) within 1,000 feet of premises the location of
which is designated by the Texas Department of Criminal Justice as a
place of execution under Article 43.19, Code of Criminal Procedure,
on a day that a sentence of death is set to be imposed on the
designated premises and the person received notice that:
(A) going within 1,000 feet of the premises with
a weapon listed under this subsection was prohibited; or
(B) possessing a weapon listed under this
subsection within 1,000 feet of the premises was prohibited.
(b) It is a defense to prosecution under Subsections
(a)(1)-(4) that the actor possessed a firearm while in the actual
discharge of his official duties as a member of the armed forces or
national guard or a guard employed by a penal institution, or an
officer of the court.

Means that a person who can prove he possessed a firearm while in actual discharge, etc, etc, etc, then he can present that as a defense.

I think?

[The Annoyed Man]

In a nutshell, it means something along of the lines of: if you meet the qualifications for a defense to prosecution, you can still be prosecuted, but you will have an affirmative defense which can get you acquitted.

So there are lots of examples throughout CHL law of defenses to prosecution. Examples woud be:

• Carrying a concealed handgun is still illegal in Texas. However, if you have a CHL, you have an affirmative defense to prosecution for otherwise breaking the law forbidding concealed carry.
• It is illegal for you to trespass when you are carrying onto property where guns are not allowed by the property owner, but until you have received proper notice, you have an affirmative defense to prosecution, so lon as you leave upon having received said notice. And oh, by the way, proper notice looks like a 30.06 sign.
• It is still illegal for you to carry into a 51% establishment, but if the 51% sign is not prominently posted and you did not see it, then you have an affirmative defense to prosecution so long as you leave upon receiving notice.

Stuff like that there.

[WildBill]

Stuff like that there.

That there says it all.

[jgalvan]

Ok thanks for the info

[sjfcontrol]

In a nutshell, it means something along of the lines of: if you meet the qualifications for a defense to prosecution, you can still be prosecuted, but you will have an affirmative defense which can get you acquitted.

So there are lots of examples throughout CHL law of defenses to prosecution. Examples woud be:

• Carrying a concealed handgun is still illegal in Texas. However, if you have a CHL, you have an affirmative defense to prosecution for otherwise breaking the law forbidding concealed carry.
• It is illegal for you to trespass when you are carrying onto property where guns are not allowed by the property owner, but until you have received proper notice, you have an affirmative defense to prosecution, so lon as you leave upon having received said notice. And oh, by the way, proper notice looks like a 30.06 sign.
• It is still illegal for you to carry into a 51% establishment, but if the 51% sign is not prominently posted and you did not see it, then you have an affirmative defense to prosecution so long as you leave upon receiving notice.

Stuff like that there.

So... Now that you've defined "defense to prosecution", define "affirmative defense".

[TexasGal]

Quote: "So... Now that you've defined "defense to prosecution", define "affirmative defense". "

Wikipedia: http://en.wikipedia.org/wiki/Affirmative_defense

"...In an affirmative defense, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. An affirmative defense is known, alternatively, as a justification, or an excuse, defense.[2] Consequently, affirmative defenses limit or excuse a defendant's criminal culpability or civil liability..."

[The Annoyed Man]

In a nutshell, it means something along of the lines of: if you meet the qualifications for a defense to prosecution, you can still be prosecuted, but you will have an affirmative defense which can get you acquitted.

So there are lots of examples throughout CHL law of defenses to prosecution. Examples woud be:

• Carrying a concealed handgun is still illegal in Texas. However, if you have a CHL, you have an affirmative defense to prosecution for otherwise breaking the law forbidding concealed carry.
• It is illegal for you to trespass when you are carrying onto property where guns are not allowed by the property owner, but until you have received proper notice, you have an affirmative defense to prosecution, so lon as you leave upon having received said notice. And oh, by the way, proper notice looks like a 30.06 sign.
• It is still illegal for you to carry into a 51% establishment, but if the 51% sign is not prominently posted and you did not see it, then you have an affirmative defense to prosecution so long as you leave upon receiving notice.

Stuff like that there.

So... Now that you've defined "defense to prosecution", define "affirmative defense".

Quote: "So... Now that you've defined "defense to prosecution", define "affirmative defense". "

Wikipedia: http://en.wikipedia.org/wiki/Affirmative_defense

"...In an affirmative defense, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. An affirmative defense is known, alternatively, as a justification, or an excuse, defense.[2] Consequently, affirmative defenses limit or excuse a defendant's criminal culpability or civil liability..."

Stuff like that there.

[baldeagle]

http://www.statutes.legis.state.tx.us/d ... m/PE.2.htm
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.

Other definitions are below that on the link above

OK. Now explain to us country bumpkins what in the world that means.

[Skiprr]

http://www.statutes.legis.state.tx.us/d ... m/PE.2.htm

OK. Now explain to us country bumpkins what in the world that means.

Well, ya almost have to read at least three related items to understand the distinction among them:

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.

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.

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.

These are in the code in hierarchical order, most weight to least.

An "exception to the application of" means, essentially, that the prosecution must present evidence that shows the exception did not exist during the incident. For example statutes, see PC §30.06(e) and PC §46.03(i), etc.

A "defense to prosecution" means that the prosecution does not need to disprove the existence of a defense. The defense has to make its case that a defense to prosecution exists. If a condition of defense to prosecution is presented and accepted, however, the judge will rule that a reasonable doubt exists [see PC §2.01] that requires the defendant be acquitted. For example statutes, see PC §30.05(f), PC §42.01(b) and (e), PC §46.035(h), etc.

An "affirmative defense" is weakest of the three. Everything about "defense to prosecution" applies with one big exception: if the existence of an affirmative defense is presented, the defendant must prove it by the rule of "preponderance of evidence." This is not the stringent "proof beyond a reasonable doubt" standard, though. Think of that sculpture of a blindfolded figure holding a scale. Preponderance of evidence means a slight tip one way or the other: 51% versus 49%. But in this situation, it is incumbent on the defendant to prove that his or her defense to prosecution applies. For example statutes, see PC §46.05(d), PC §46.13(c), etc.

As my sigline says, I am not an attorney. Don't trust anything I say as knowledge or advice of any kind.

Stuff like that there...