notalawyer
Regular Member
[strike]My problem is that you said "(too tired to go look up the penal code)" meaning everything else that you were saying might or might not be even applicable, but there's nothing in it that leads me to be able to determine whether or not it is. I don't know how to look up in the penal code whether or not what you're saying is applicable. If you do, awesome, but you didn't... So yes, I am frustrated that you would suggest something might be the case, but don't actually help get any closer to determining whether or not it is really the case. I welcome your help. I just want to move towards knowing the real deal as opposed to trolling around in what-could-be waters. [/strike]
ETA: Has nothing to do with "I can't believe" some legal concept is the way it is - I never said that. I said I don't want to assume anything. I don't want to assume it's that way in Texas just because it's that way in Florida. If it is, fine... I'm open to someone showing me that it is. I'm not going to operate as if it is based on the assumption that it's the same as Florida - that would not be a reasonable thing for me to do.
ETA: When I said " please point to them. " this is not a sarcastic challenge implying that they don't exist - I'm genuinely requesting assistance while simultaneously admitting I don't know how to research this query!
ETA:
What if I apologize for being an *******?
Ok...it was late, I was tired. And then your attitude pissed me off this morning when I was only trying to help.
So, now with that out of the way (I got a whole 3 hours of sleep), I present this in support of my comment "Most state are probably similar..."
Texas appears to be a little better at laying it all out. I sort of like this. In Florida, sometimes it becomes more of an editorial issue and the burden of proof could be based simply of the ordering (editorial layout) of the statues.
Texas Penal Code
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.
2.02 is like our new concealed carry law. The state must have PC that an individual is not licensed to dertain and then prove it beyond a resonable dount in court..... i.e. an element of the crime.
2.03 & 2.03 are more similar to the way ours used to be. The individual has the burden of proof that they fit into one of the 'exceptions'.
I don't want to go back and review which exact code we were referring to, so if you can help me with those, we can see which of these apply in those specif instances.
I just found this, the first two pages explains quite well why the state/locality would want to use defenses vs exceptions. Bad for citizens/good for government.
http://texascityattorneys.org/2013speakerpapers/RileyFletcher/MunicipalOrdinances_DavidJohnson.pdf
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