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Temple Criminal Defense > Blog > Criminal > What Is An Affirmative Defense?

What Is An Affirmative Defense?


When you are facing any kind of misdemeanor charges in Texas, it is essential to work on a strong defense strategy that is tailored to the precise charges you are facing, as well as to the particular circumstances surrounding your arrest. You should always work with a Temple criminal defense lawyer to determine which defense strategy will be best for your case and will give you the greatest chance of beating the charges you are facing. Depending upon the type of offense and the facts related to your arrest, an affirmative defense might be helpful in your case. What is an affirmative defense? Our Texas criminal defense lawyers can explain.

General Definition of an Affirmative Defense

 Generally speaking, an affirmative defense in criminal law is “a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability . . . even if it is proven that the defendant committed the alleged acts,” according to the Cornell Legal Information Institute. Affirmative defenses can also be used in civil cases when a person is facing a lawsuit. To be clear, in using an affirmative defense, you are admitting that you engaged in a particular behavior or action, but you are saying that the behavior or action was justified for a particular reason or occurred in such a manner that you should not be criminally liable for it.

The Cornell Legal Information Institute cites self-defense, entrapment, insanity, and necessity as some of the most common types of affirmative defenses in criminal cases.

Texas Penal Code Definitions of Affirmative Defenses 

The Texas Penal Code identifies a variety of affirmative defenses, including insanity, a mistake of law, and duress. The statute says of each:

  • Insanity: “It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of a severe mental disease or defect, did not know that his conduct was wrong.”
  • Mistake of law: “It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon” either an official legal statement or written legal interpretation.
  • Duress: “It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.”

What about self-defense? If you examine the Texas Penal Code, you will not find self-defense listed as an affirmative defense. Under the Texas Penal Code, self-defense as a defense strategy for avoiding an assault conviction, for example, is not expressly identified as an affirmative defense but rather is identified as a “justification.” Although the Texas Penal Code lists self-defense separate from other types of affirmative defenses, it is important to understand that self-defense is nonetheless a type of affirmative defense. To be clear, if you use self-defense as your defense strategy, you are admitting that you committed an act but you are arguing that you were justified in committing the act such that your criminal liability should be negated.

Contact a Temple Criminal Defense Lawyer 

If you need assistance with your defense or have questions about affirmative defenses, you should get in touch with one of the dedicated Temple criminal defense attorneys at The Law Office of Katie L. Gomez, PLLC for assistance.





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