Texas Statutory Defenses Explained: Jury Charges, Self-Defense & Trial Strategy Every Criminal Defense Lawyer Should Know
Statutory defenses can win criminal cases—but only if you know how to recognize, preserve, and argue them.
In this episode of Andrew & Andrew on Texas Criminal Defense, Andrew Herreth and Andrew Decker celebrate seven years of the podcast before diving into one of the most overlooked topics in Texas criminal practice: statutory defenses under the Texas Penal Code and Code of Criminal Procedure.
Drawing from Decker's CLE paper on statutory defenses, the Andrews explain the critical differences between:
Exceptions to prosecution
Defenses to prosecution
Affirmative defenses
They discuss how each affects the burden of proof, when the defense must produce evidence, and how these issues impact jury instructions and appellate preservation.
The conversation also explores practical trial strategy, including:
Reading the indictment alongside the applicable Penal Code section
Finding hidden defenses inside charging instruments
Raising self-defense without putting your client on the witness stand
Using the State's own witnesses to establish your defensive theory
Protecting error through proper jury charge objections
Why writing CLE papers makes better trial lawyers
Andrew Decker also shares real courtroom examples of successfully turning prosecution witnesses into defense witnesses through effective cross-examination and explains why mastering statutory defenses can dramatically improve trial results.
Whether you're a seasoned criminal defense attorney or just beginning your practice, this episode offers practical guidance you can immediately apply in Texas criminal cases.
In This Episode
Celebrating seven years of Andrew & Andrew on Texas Criminal Defense
Why teaching CLEs makes you a stronger trial lawyer
What are statutory defenses?
Exceptions vs. defenses vs. affirmative defenses
Understanding the burden of proof in Texas criminal cases
Why every defense attorney should carefully read the charging instrument
Raising self-defense without client testimony
Jury charge strategy and preserving appellate error
Cross-examination techniques that support defensive theories
Upcoming CLEs and trial updates
Resources Mentioned
Andrew Decker's CLE Paper: Guarding Our Sacred Trust: Statutory Defenses
Harris County Public Defender's Office statutory defenses checklist
Texas Penal Code Chapter 2
Texas Code of Criminal Procedure
Texas jury charge preservation rules and appellate standards
Topics Covered
Texas criminal defense • Texas criminal law • statutory defenses • affirmative defenses • defense to prosecution • exception to prosecution • Texas Penal Code • jury charges • jury charge objections • appellate preservation • self-defense • criminal trial strategy • cross-examination • burden of proof • criminal defense CLE • Texas criminal lawyers • trial advocacy • indictment review • Texas defense attorneys
About the Podcast
Andrew & Andrew on Texas Criminal Defense is hosted by Texas criminal defense attorneys Andrew Herreth and Andrew Decker. Every episode delivers practical courtroom strategies, trial tactics, case law updates, and real-world insights designed to help criminal defense lawyers become more effective advocates throughout Texas.
For additional episodes, resources, and downloadable materials, visit TexasCrimDefense.com.
Andrew Herreth 0:05
Hello, ladies and gentlemen. Welcome to another episode of Andrew and Andrew on Texas Criminal Defense. My name is Andrew Herreth, and joining me, as always, from way up north is mr. Andrew Decker. How are you, sir?
Andrew Decker 0:19
I'm well, thank you. I'm well. I'm well. I've been watching a lot of football.
Andrew Herreth 0:22
Yeah, man, me too. And it's okay to call it soccer. I like to point out to all of my snooty friends who do call it football that soccer is actually an English term that we've adopted, and so what's the problem with calling it soccer?
Andrew Decker 0:42
Honestly, I don't care which one you call it. I don't
Andrew Herreth 0:45
either. But it's been exciting, really exciting tournament.
Andrew Decker 0:48
Yes, yes,
Andrew Herreth 0:49
that, that I'll probably watch less of now that the American men are out. But
Andrew Decker 0:56
so after, after the play in rounds, the, you know, the round robins, my money was on Mexico, so the fact that, and we're recording late, we know this is dropping late, that's not dropping on the first when they lost to England at the Azteca. Oh
Andrew Herreth 1:13
yeah, it
Andrew Decker 1:14
hurt me, it hurt me more than the Americans losing, honestly, because I truly was like Mexico had not given up, had not given up a single goal in the tournament at that point through four games. I was like, this is their year, you know. And then, well, like, like the United States, Mexico has a tough time getting into their, they're generally a better soccer nation, but in the FIFA, no North American team is one, and they won't happen this year.
Andrew Herreth 1:48
Yeah, yeah, you know, Canada kind of got beat out pretty severely, and then shortly after that, Mexico, and, and I, I just, I was expecting England had kind of struggled early on, and so I was really expecting them to struggle, like, like you, just like you said, against Mexico, but man, they played pretty inspired, and then the English, the American men, I was expecting way more, but Belgium is a strong team, so it'll be interesting to see, and I'll definitely watch, like, some of the remaining games, but it's just I'm not going to be as, like, I'm not going to be as committed to it as, as I was previously, just because, you know, the men, the men's team is no longer, no longer playing, but it's okay, it's okay. What else you've been up to, yeah.
Andrew Decker 2:41
Well, thankfully we still have women's soccer, because they're actually good.
Andrew Herreth 2:49
Yes,
Andrew Decker 2:50
and we're.. and it's
Andrew Herreth 2:52
actually.. I mean, it is really exciting soccer to watch too. It just.. they're just.. they're so good, they're so dominant. It's. it is. it's refreshing to see, like an American team that is just killing it in soccer. So, yeah, I'll be watching that tournament as well,
Andrew Decker 3:09
right? Right, yeah, next year, next year. So that, so that, and happy anniversary,
Andrew Herreth 3:16
I know. So, to add, like, we really tried to record last week, but ripe coming up on a holiday, I was in trial. I know you had just gotten done traveling, right, and we just could not get our calendars to mesh.
Andrew Decker 3:32
Yeah, your trial, and that's not like blaming you, trial is important. And then we had holiday weekend, and so you and I both this morning we're texting each other, going, we've got to get this recorded, we want to do one, and then hopefully we'll have one before the middle of the month, and then we'll try to get back on schedule, because well, frankly, it's all we, we stay better, yeah, as we do, certainly,
Andrew Decker 4:00
so but yes. Happy anniversary. I think this is seven full years. I think, I think so. Our eighth, our eighth year of Andrew and Andrew on Texas. That's crazy
Andrew Herreth 4:11
to me.
Andrew Decker 4:12
I know, I know, it's like.. and we may not love it, but,
Andrew Herreth 4:15
like, yeah, dude, this is longer than than most marriages, right?
Andrew Decker 4:21
We'd rather not talk about that, both of us having been divorced and one of us remarried. I'm not, I'm not bringing that mojo into this conversation.
Andrew Herreth 4:31
Yeah, apologies. So, all right, man. Um, what? Tell me, tell me what the rest of the month looks like for you,
Andrew Decker 4:42
so I will be down at South Padre in a couple of weeks, where I will be teaching, as you and I talked about in the, in our pre-show. I am teaching on how to write a CLE paper, so I wrote, I wrote. The paper I wrote a paper on how to write a paper, and I'm going to refer to I will refer to the paper in which we will discuss today. So it's a paper within a paper in which I refer to a paper.
Andrew Herreth 5:13
So welcome to the Inception episode. We have fully jumped to the shark with our podcast, and but let's talk about that, so you, you're going to be writing another paper on how to write a paper about the first time you wrote a paper for a CLE presentation that you did,
Andrew Decker 5:33
not, yeah, not the first time, so right,
Andrew Herreth 5:35
oh, okay,
Andrew Decker 5:37
right, so this truly is the training of the trainers happens down at South Padre. It's part of that President's Week, so we train part of what happens there is training persons to go to the smaller events around the state, so that persons who can't make it to the big events like Rusty Duncan or the DWI, or the sex offenders in Dallas, or the, you know, something down in Houston, can get a good day of good tool work, right?
Andrew Herreth 6:14
Yeah,
Andrew Decker 6:14
but because these - this is funded by the Court of Criminal Appeals, all of our speakers are required to write a paper, well, then you have to know what, what has to be included in the paper, what you have to think about when writing a paper, who's your audience. So we actually give a, we actually write a paper on how to write a paper and present on that, so that that they know, right? This is not a just, hey, what are some thoughts? Write them down. No, this is supposed to be a paper, and I've now.. this is like my sixth topic that I've done for this group. This is the first.. I gotta tell you
Andrew Herreth 6:57
that, yeah, if somebody was like, "Okay, you're gonna talk, okay, what an honor. That'd be great. Also, you have to write a paper. I wouldn't know the first place to start, so I think this is great. It will be valuable information for everybody that's going to train the trainers. What was your, what was your paper about? Like, what? So, you've, you've done seven of them. Just kind of give us a brief overview of, like, what all of you presented on. Who knew? So, this is true that you were such a, an in-demand speaker.
Andrew Decker 7:31
Well, it's what I've learned is they don't ever ask me to do the same thing twice. So, I think they're trying to figure out what I can do. I've done technology in the courtroom, I've done opening and closing statements, I've done jury selection, I've done well, the most recent one was statutory defenses, and then writing on cle papers, but there's one other one I can't remember
Andrew Herreth 8:03
well. Hopefully it wasn't on like the fallibility of memory.
Andrew Decker 8:08
Oh, and then communication with your client ethics, so
Andrew Herreth 8:12
that's great. You know what, like, we always talk about how this podcast really helps you and you and me, you and I become better attorneys, because we're either talking to smart attorneys or we're discussing an area of the law that we think people need, you know, help with, and those people are usually us too, but I imagine that, like, writing the paper, not only giving the talk, but writing the paper, doing that research, taking that effort, like, really makes you a really sharp attorney on that subject.
Andrew Decker 8:47
Yes, and that's part of what I actually mentioned in the paper that I'll be speaking on in two weeks, is that by writing your paper you learn it and you become the expert, so mr. Herreth, when you looked at the paper that I presented last fall, you noticed something, you use something to find out where things were. What did you go to first?
Andrew Herreth 9:11
Google.
Andrew Decker 9:12
No, in my paper,
Andrew Herreth 9:17
wait, oh, the table of contents. When we were talking, just like five minutes ago. Yes, I looked at the table of contents to see, like, to kind of get through to what the meat of the issue.
Andrew Decker 9:32
Right, here's the deal. I've been, because you write papers, you know, you and I have both had the opportunity where we've said we did a podcast on that. Let me see if I can find it and send it to you. Same thing happens on paper, right? I'm like, well, I wrote a paper on that, and then I literally can open my iPad, go to the paper, go to the table of contents, and then go right to it, because I have it, basically the table of contents. Sense, as an outline, and I can go here. Here's the section where I spoke, where I write on that. Here's the case law. Here's what you need to know. And then I get the will. You send me that paper. Sure.
Andrew Herreth 10:10
Damn right,
Andrew Decker 10:11
right. Yeah, that's wonderful. So you become the expert immediately.
Andrew Herreth 10:18
Yeah,
Andrew Decker 10:19
you know, because no, and that,
Andrew Herreth 10:20
that's in that, and that actually, you know, in turn, like people will just like some of the other cases we've discussed on this on the podcast, they'll be like, hey, you should really call Decker, he's, you know, we, he's done this before, he's written papers about it, that could turn into clients, that could turn into, you know, subject matter expertise known throughout the state, etc. So that's great, man. Get on you,
Andrew Decker 10:44
so so I'm known for more than just my bow ties.
Andrew Herreth 10:48
Yeah, yeah, in chicken killing, evidently.
Andrew Decker 10:50
Yeah, yeah. Well, again, again, I knew, I knew, I knew the open range law better than the prosecutor did. Yeah, so knowing again, Herreth, you know that I had a life before the law. I was a United Methodist pastor, and one of my professors there said, when dealing with theology, know your know the other side's arguments and position better than they do, and you, you will do better, right?
Andrew Herreth 11:24
right again, certainly.
Andrew Decker 11:26
If you know the law better than the prosecutor does, better than the detective does, better than the investigator does, you will catch them in a mistake.
Andrew Herreth 11:36
Well, and that, that, and that all comes down to the preparation in trial, right? So, friend of the show, been a guest on the show, Harmony Sherman, she puts together a huge binder. In doing so, she is building her own knowledge of the case, right. And, and here, you know, writing this, writing the paper, doing the podcast, everything that we do really builds our own knowledge of the law, and if, and all this, like, pays off. There is a payoff at the end, and that is just knowing the law better than the prosecutors who are not going through the effort that we go through as defenders, and so you know, part of that, you know, the problem is it takes effort, like you have to actually work, and, and you know, people like myself may not want to do that sometimes, but there is no this, that it is not wasted effort, for sure.
Andrew Decker 12:40
Oh, I do not want to do the work right. It is honestly there are people that sign up and go down for training of the trainers every year who, when they find out they have to write a paper, and like this paper, the one that we're going to look at today, that I wrote it, because you, this came up because you sent an outline, a checklist that was sent to the Houston criminal defense lawyers,
Andrew Herreth 13:04
right,
Andrew Decker 13:04
and I said, "Oh, I've written a paper on that. This paper is 17 pages,
Andrew Herreth 13:10
that's a, that's a, that's a substantial paper,
Andrew Decker 13:12
right? And it's not the longest one that's, that's presented by far, but when you realize I'm going to spend, so to write a paper, I spend an hour to two per page over the course of working on it, so I've spent a full week's worth of work writing this paper.
Andrew Herreth 13:30
Yeah,
Andrew Decker 13:31
you start going, I don't want to do that, right? I mean, it's not worth it's not worth becoming a speaker.
Andrew Herreth 13:39
I, I feel for those people who go down there, and they're like, 'Wait, I have... Oh, that's right, I have to write a paper. That's crazy. No way. I don't.. I don't want to do any of that at all. So, so you know, my hat's off to you, Decker, for sticking with it, and all these different topics you've.. you've, you've spoken about in writing these papers, and today we're going to talk about one paper in particular,
Andrew Decker 14:06
one piece on one paper, right,
Andrew Herreth 14:07
one piece, like, yeah, we're just going to get into what, one or two, two different points or chapters in your paper on statutory defenses, so, as Decker said, I got an email that from in the Harris County listserv that one of the higher ups at the public defender's office sent out a, a list of defenses contained within the penal code. I sent it over to Decker, just because I thought it was a great piece of information.
Andrew Decker 14:40
All six, all six pages. Yeah, and this
Andrew Herreth 14:43
is six pages, not 17, all six pages. But I mean, that's a lot in it, and it's very condensedly written. It's a, it's a great piece of information, and we'll include that in the show notes, a link to the Dropbox, so you can download this. And and much, much thanks to the Harris County Public Defender's Office for putting this out there, and then yeah, Decker sent this, this paper that he wrote on statutory defenses guarding our sacred trust, he has graciously allowed us to keep this to put this out there, it'll also be included by link in the show notes to a download from my, from my Dropbox account, so make sure you click on that. It's great information, Decker. What in the hell are statutory defenses? I don't understand, so I don't even know how to explain
Andrew Decker 15:40
it right. So, just like, just like the handout from the Harris Public Defender's Office, they are defenses that are generally found in the penal code or in the Code of Criminal Procedure. They are statutory defenses. So, let me give you an idea of what something that is not a statutory defense, an alibi is not found in the penal code.
Andrew Herreth 16:05
Okay,
Andrew Decker 16:06
right. An alibi is not
Andrew Herreth 16:08
right,
Andrew Decker 16:09
right. That is evidence, that is evidence that my person could not have committed this offense,
Andrew Herreth 16:18
right?
Andrew Decker 16:18
Right, sometimes it it's that they were in a different location, or they're, you know, they're not tall enough, or they're too tall, or whatever, right? It could not be them, or they could not have done it this way. So that's an alibi. Alibis are not in the statute, so they're not a statutory defense, they're not found in the Texas Penal Code. Make sense?
Andrew Herreth 16:47
I get that. Absolutely.
Andrew Decker 16:49
Okay, so we're going to talk about things that are found in the penal code, but today mr. Harris asked us to kind of start really kind of a little before the your handout, which, which is great. So the handout is just pointing to the code, it does not include any explanation or any case law like
Andrew Herreth 17:13
that, right?
Andrew Decker 17:14
Right. So my paper, and again, it's a paper I was asked to write, so for me to claim that it's my paper is a little bit of, it's a little bogus. Well, I mean, no, they didn't ask anybody else to write it, so it's you own the, the IP, right? This came from your brain and the law, yes,
Andrew Herreth 17:42
but but I understand what you're saying, like the your assignment.
Andrew Decker 17:48
Yes, so I go, I start back with what are the levels of proof that are needed, and how would you know which level of statutory defense. This is not the penal code. This is, well, I guess maybe it is.
Andrew Herreth 18:13
What do you mean?
Andrew Decker 18:14
Well, it's not. It's in the code of criminal procedure, because it's section, right? Section, yeah. There are three levels of proof, and they give you an idea as to which level you're in, as to how the how it is charged. So, occasionally in the penal code, you will find an offense that reads it is an exception to prosecution, blah blah blah,
Andrew Herreth 18:37
right?
Andrew Decker 18:38
So, if it's an exception to prosecution, the state must negate the existence of the exception beyond a reasonable doubt. The burden is completely on them to do that.
Andrew Herreth 18:49
Gotcha. This is
Andrew Decker 18:51
Section 202 and they must prove that the actions of the defendant did not fall within the exception, so they have to prove the case. They have to prove that the exception doesn't apply, and that the defendant was acting beyond their exception, beyond a reasonable doubt. Obviously, there are not a whole lot of these, and they have to include the exception in the charging instrument, so what would your charging instrument be? Generally, mr. Herreth,
Andrew Herreth 19:24
well, on a.. I mean, they.. it would start typically as like an information, and then for a felony, whenever an indictment is returned, it would be in the indictment,
Andrew Decker 19:34
correct? Exactly right. So, the.. so in the indictment, it actually has to include that the the negation or or and this is the important piece, it renders the indictment void.
Andrew Herreth 19:52
Okay, interesting,
Andrew Decker 19:54
right? So, if you, so, again,
Andrew Herreth 19:56
yeah, but to say this, this all leads back to like the first thing. That you do, I know that you do this on every case that you're either appointed or hired on. Read the code section that prevails, that's controlling, you know, the offense, right? Whatever penal code section, or wherever you find it, and then read the charging instrument. You can find gold in the charging instrument
Andrew Decker 20:20
all the time. it's
Andrew Herreth 20:23
crazy. It's crazy, like it's crazy. How, how much you have won specifically that other attorneys have missed just by reading the code section and reading the, you know, indictment.
Andrew Decker 20:42
Sometimes I actually ask, what code, you know, like occasionally, if I'm not real clear, I'll actually reach out to the prosecutor and go, would you, would you point me to what code section this is? I'm really not kind of finding it, because sometimes things can be multiple
Andrew Herreth 20:57
right
Andrew Decker 20:58
things, and you'll go, haha, they've put this in the wrong code,
Andrew Herreth 21:04
yeah,
Andrew Decker 21:05
or they'll list some, some counties will list the code section right outside of the words, you know, outside the, you know, the magic words that make in the name, you know, before, before it says in the name, and by the authority of State of Texas, or after against the peace and dignity of the state. If it's not in there, it's not part of the indictment, it's just surplusage,
Andrew Herreth 21:37
right?
Andrew Decker 21:41
So some of them will list the code section, or list, you know, which gives you maybe an enhancement piece in the surplusage, but if it's not in between those words, it doesn't apply. I've actually had some cases eventually dismissed, because in those smaller counties that do it that way, they said, well, it says that very obviously, and I filed a motion to quash that the information wasn't in between in the name and authority of the state of Texas, and against the peace and dignity of the state, and the judge went, mr. X Craig, it's not filed that way, right. so,
Andrew Herreth 22:26
so reads, you got to read that stuff, you got to read that stuff, and it's got to, yeah, I mean, like, you know, now we're getting into, like, okay, How, like, what is the legal construction of an indictment, and there's, there's, there's code sections that control that, and for all you attorneys that are taking the board certification exam, that's very important information, usually, usually pretty ripe for questions on that.
Andrew Decker 22:57
You might know because you're going to take it this fall.
Andrew Herreth 22:59
I am, I am sitting for the exam. We'll see, we'll see if I will see. Oh, fingers crossed, fingers crossed. Hopefully, hopefully I passed. Okay, so exceptions have to be negated in the charging instrument.
Andrew Decker 23:18
Yes, there is obviously an exception to that, the exception does not have to be included in the charging instrument if it falls in a separate statutory section from the position from the provision from which the state which states the offense, so if the exception falls somewhere else,
Andrew Herreth 23:35
yeah,
Andrew Decker 23:36
right, so and again, very few places is there an exception to prosecution? So, it's not like we're playing this all the time. More often, we will find the words, it is a defense to prosecution. Okay? Right. Okay. So, for that, this is Section 203 We have not moved far yet, ladies and gentlemen, right? And you wonder why this paper is 17 pages long. It says you will know it because it says it is a defense to prosecution, and that's a defense that must be raised, or may be raised. The state does not have to put it in the charging instrument, they do not have to negate it, and the defense bears the burden of producing some evidence supporting the defense. Some, okay, so,
Andrew Herreth 24:31
so let's say defense to prosecution. How would the defense like introduce evidence or produce evidence supporting that defense.
Andrew Decker 24:47
Okay, so
Andrew Herreth 24:52
I mean, not an exhaustive list, but, like, for instance, you know,
Andrew Decker 24:56
right? So one of the things. That self defense will use self defense as a primary piece, and honestly, right off the top of my head, I was actually scrolling down, I cannot remember self defense is actually an affirmative defense, right. So, but like,
Andrew Herreth 25:23
I guess my question is, like, the defendant does not have to testify in order for, in order for that to, like, raise a defense to prosecution, right? Like, like that, that evidence can come from a state's witness, that evidence can come from the state's evidence, right. It's just, it's just
Andrew Decker 25:41
exactly
Andrew Herreth 25:42
right. So,
Andrew Decker 25:43
let's go ahead.
Andrew Decker 25:45
So, with the defense, the state, the state does not have to negate it in the charging instrument,
Andrew Herreth 25:54
right?
Andrew Decker 25:55
The state must, the defense bears a burden to produce some evidence supporting the defense, and the burden is in on the state to prove beyond a reasonable doubt the defense does not apply. So you basically just have to raise it. They then have to overcome it. They don't have to produce evidence that the defense does not apply. They just have to to prove it right by persuasion, by persuasion that they can prove their case beyond a reasonable doubt,
Andrew Herreth 26:30
right. So
Andrew Decker 26:31
they have to persuade the jury beyond a reasonable doubt that the defense claimed is inapplicable given the facts of the case. Oh, I mean, some of these, you start swimming in the, the, the spin around, so it truly, when you find these, you have to start looking at the case law, you have to start looking at what the element is, you have to start looking at, is it a persuade, is it approved beyond the reasonable doubt, who has to produce evidence, so this is this is a this is a light touch, this is kiss it like it's your sister kind of information.
Andrew Herreth 27:13
What did you just say? I said you have to kiss. I was so like, what did you just say? Like I was so shocked at that, and like laughing to myself, that I hit the button that turns off our newfangled microphones.
Andrew Decker 27:29
It's in some movie or TV show, they say, they say just touch it, touch it lightly, just tap it, just kiss it like it's your sister, right?
Andrew Herreth 27:39
Oh, that's funny,
Andrew Decker 27:41
right? So, that's a great way to
Andrew Herreth 27:43
put it.
Andrew Decker 27:44
Yeah, this do not think you know all the law just because you've read my paper or you've listened to this podcast. This is just to kiss it like it's your sister. So, the next level really starts putting pressure on us. That's 2.04 The penal code provides for offenses that includes is an affirmative defense to prosecution. Often the defense may be raised, the state does not have to negate it in the charge instrument. The burden is on the defendant to produce evidence to persuade the jury the defense applies. One where I have used this is Romeo and Juliet,
Andrew Herreth 28:27
right? Okay,
Andrew Decker 28:28
right. Statutorily, she's under 17. He is, you know, sometimes.. well, I've actually had it where she was under 14, he was 14, she was 13. Well, I raised the affirmative defense that they are so close in age that this, this would not apply, right? They are within the Romeo and Juliet clause, so unless there's proof that it was forced, manipulated, that it was not just statutory. We would have some affirmative defense to place before the jury. Of ladies and gentlemen, are you going to find a 14 year old has broken this law because he's 14 and she's 13 and a half?
Andrew Herreth 29:18
I mean, why would the prosecution bring that case anyways.
Andrew Decker 29:22
Well, because an investigate, an investigator feels like, well, it just has to be brought,
Andrew Herreth 29:27
grumble, grumble, grumble,
Andrew Decker 29:30
right, right. So the same thing will then happen when you have like a 16 year old or a 15 year old female and like a 19 year old male, and I say female and male, it's the way it usually works. It's not always. I'm just going with the general, but again, it's an affirmative defense. Ladies and gentlemen, they're within the.. they're within.. there's a statute that says it's an affirmative defense if they're within this age range, right? We generally call three. Romeo and Juliet, so you put on just a little bit off, and again on several of these people think that he has to testify. Well, Officer, how old was he at the time of the offense? He was 19 years old. How old was she? She was 1616. in how many days, right? So you get to that they are within, and believe it or not, depending on what the charge is, it's three or five years, depending on what the issue is. We'll talk about that in another episode, because this one's already, this is already hitting 30 minutes. Yeah, but then the jury can look at it and go, that's just teenagers being teenagers,
Andrew Herreth 30:43
right?
Andrew Decker 30:44
Not right. The point of the statutory law is they don't want 54 year old man grooming 16 year old female, 19 year old and 16 year old. Well, that they could have been in school together, they could have been in high school together. He just graduated, right? This is not - this may not come off as creepy to anyone, but the wrong person see it and they go, well, that's that's illegal. That's why it's an affirmative defense we have to put forward, and then we persuade the jury that the defense applies. So, if the, if again using those facts, if the girl says, and I'm assuming the girl is the younger, says, "I didn't want him to do that, he forced me, he got me drunk, whatever. Well, the defense, it may be a defense, but the jury may say that defense doesn't apply to these facts, because this isn't about the age as much as it's about the conduct. You under, can you understand the difference? What I'm trying to say, Mister Herreth?
Andrew Herreth 31:57
Yes, yes, right, absolutely. So it's it seems to me that if we're looking at like burdens of burdens of proof here with these three levels, that the exception is like the most severe, that'd be like the highest burden, and then defense, and then affirmative defense below that is that,
Andrew Decker 32:22
yeah, basically it's in the order that shifting from the state
Andrew Herreth 32:28
to to the
Andrew Decker 32:28
defendant
Andrew Herreth 32:30
got you correct, so not much difference between section 2.03 and section 2.04 right? I mean, the state would have to prove their case beyond reasonable doubt if there is a defense to prosecution in the charging language, and they don't really, I mean, I guess they can ignore it, and if it's an affirmative defense, because that's really just the defense's, the defendant's responsibility,
Andrew Decker 33:01
so, so, again, let's use the 19 and 16 year old, excuse me, if, if at trial you don't point out that they're 19 and 16,
Andrew Herreth 33:13
yeah,
Andrew Decker 33:15
and it's not, and you don't get it, you don't get it presented, and you don't get it in the jury charge, which is the next piece that defense may just be out the window, right? Because how would a jury know that they could find this young man not guilty because they're too close in age if you don't put it in the jury charge,
Andrew Herreth 33:38
right?
Andrew Decker 33:39
And it's on you, right? This is is so my appeals friends will say the greatest way to get something to have an issue on appeal is to argue the jury charge on the record, make sure it says what you want it to say, if it doesn't, you object, if you object and there's a reason to put it in, and they don't, it is the best way to get a, get a case sent back to be retried. So, on the exception, the state must negate the exception in the charging instrument, which means it also then must be in the jury charge,
Andrew Herreth 34:18
right?
Andrew Decker 34:18
And you don't have to do anything for it to be included in the charge, because the brain's on them, right? For a defense, the defense is not submitted to the jury unless evidence is admitted supporting the defense. Okay, so this would be something like self-defense. Now the defendant is entitled to an instruction if the issue is raised by the evidence, even if the evidence is weak or controverted, and it does not have to come from the defendant.
Andrew Herreth 35:00
Right,
Andrew Decker 35:03
so primary example, and again, defense and affirmative defense are very, very close, and I think really self-defense is an affirmative defense, but but to give you an idea of how close they are, and what you can do if you want to raise a self-defense claim, but you don't want to put your guy on the stand, you start asking the officer, she said he was on the couch, correct? Yes, she said this, this, this, this, and if he put his hand up, would that believe, could that leave a mark on her neck. Yes, would that be a defensive move? Yes. So that would be self defense. Yes. What have you just done? You've just raised self defense through the officer, right. And then, so in that case, my guy was found guilty for other reasons, but we got the self-defense in because the officer admitted that those actions could have been self-defense. The expert then talked about how little pressure it takes for someone to have circulation cut off. She said 10 pounds per square inch. Okay, well Well, you know how I am when I'm in a trial or I'm working on something, I'm thinking about when I'm running, when I'm doing other stuff. I realized 10 pounds per square inch is like putting a gallon of milk on your fingertip, right? So I said I realized that. So the next day, when I got to cross the cross, this expert got to come back, and I said that would be about this amount, right? She goes, "Yeah, I think so. I think that's the way math works. I was like, "Great. So then, when I went to argument, I said, "10 pounds per square inch. If she leans forward into his hand, as we've discussed with the officer, you would get more than 10 pounds per square inch on her neck, cutting off her circulation while he is defending himself because she's leaning down from higher position,
Andrew Herreth 37:15
right?
Andrew Decker 37:17
And the judge went while the jury was out, that he was like, it, he said, mr. Eggert, there were several things you did in trial that I was like, wow, yeah, one of them was you turned the expert into your witness, and how I explained other things, but he was like, he goes, you just flat turned their witnesses into your witness,
Andrew Herreth 37:41
which is like some of the most effective things you can do on cross-examination. If you can get the state's expert, who they are calling to agree with your points and ultimately agree with your defense, right, then in closing you can say, hey, look, even their guy was agreeing that X Y and Z, so that means that the state's own expert really is just trying to tell you the truth, and you can trust him when he says exactly what your defense is, right? That's that's well done, that's well done.
Andrew Decker 38:17
Now, again, he was found guilty because she says several times I was on the, you know, sometimes she says I came at him, but other times she says, you know, like, and he got them all, he got on me on the couch, right? Okay, all right,
Andrew Herreth 38:32
but I didn't,
Andrew Decker 38:34
I didn't have to put my guy on so that they could go through his history,
Andrew Herreth 38:38
yeah,
Andrew Decker 38:41
right, use the information that they are relying on to make your case, if possible, because sometimes it is the best evidence you have is what they are going to put forward.
Andrew Herreth 39:02
I mean, that's that's yeah, and that, and that actually could save you, maybe your client a bunch of money, because you don't have to hire your own expert,
Andrew Decker 39:11
right?
Andrew Herreth 39:12
Yeah, well done. And then
Andrew Decker 39:15
to get it in the jury charge, it doesn't have to be strong, it so case law says it can be strong or weak, impeached. It does not have to be unimpeached or uncontradictory, and regardless of how the court views the credibility of the defense, if it is raised by the evidence, it must be put in the jury charge. But you have to raise it, you have to say, "I need it in the jury charge. You have to protect the record, and every time that they say, 'Is this good enough? you have to say, 'I object, right? I object. It needs to be included, and if they.. if you finally say, 'Okay, right. If you finally act like you agree on the record. You've just waived your objection, so you have to, the last thing you have to say is I object, and and you leave it there.
Andrew Herreth 40:12
Yeah,
Andrew Decker 40:13
you can even say I agree, as long you know, but you have to put, you have to keep that objection moving, or otherwise you greatly diminish your right to raise that issue on appeal, and it's real easy to finally, after about a couple of times of asking, that it doesn't work. Now, here's the interesting piece: we'll finish on this one. When you fail to raise or object on the charge, the court can still reverse the case if it shows egregious harm to the defendant, so they can review the alleged charge, considering two questions: whether the error existed and whether sufficient harm resulted from the error to compel reversal. This is case law, right? You can find it in recovery, so you don't have to protect your record, but I don't think I would ever want the court to rule that on my case there was egregious harm for something that you
Andrew Herreth 41:21
didn't object to,
Andrew Decker 41:22
yeah, I mean, that hurts,
Andrew Herreth 41:25
because we all know how often the courts of appeal find harmless error, and so for there to find egregious harm, that has got to be some damned egregious harm, you know what I mean, they're not out there, like looking for, you know, looking for this.
Andrew Decker 41:45
It's a harm that you can drive a semi through.
Andrew Herreth 41:47
Yeah, yeah, yeah, yeah. And I'm just thinking here, like, after reading this paper, like, man, and I've had this feeling before, but, like, I don't think I should. I think I should always be objecting to every jury charge, even if I get everything I want, you know, I mean, because, honestly, like, you know, I'll look at it and I'm like, okay, yeah, I guess so. I don't really have any objections, but I, so, like, even, even like you said, like, here a defendant is entitled to an obstruction if the issue is raised by the evidence, even if that evidence is weak or controverted. I mean, I should just be asking for self-defense all the time. They're like, "Andrew, it's a DWI case, and I'm like, "Well, okay, so what, you know? I mean, or a necessity claim, or something like far out there, just just to object and base an objection on.
Andrew Decker 42:47
Now, remember, you know, there is something that says you can't just say stuff that doesn't really apply, right? So, so I wouldn't just object without real reason, that's me. Yeah, I had a jury charge where the judge actually said, Decker, why don't you come on back here and tell me what I need to put in this charge.
Andrew Herreth 43:09
Yeah,
Andrew Decker 43:10
and so it was the coordinator or the stenographer, the court reporter, the judge, and myself in her office writing the jury charge, right? I can't then object to that,
Andrew Herreth 43:24
right? Right,
Andrew Decker 43:26
the state should have, the state probably should have,
Andrew Herreth 43:30
yeah,
Andrew Decker 43:31
right. But they didn't. But it also says that, well, I've built a rapport with my judges that they know I'm going to give them good information, not bad information, and thankfully that guy was found not guilty, so we didn't have to worry about it.
Andrew Herreth 43:49
There you go, man. Yeah, no, I.. this is another one of those podcast episodes where I'm like, oh, I just got another little gem that I'm gonna take with me into the next, into the next battle.
Andrew Decker 44:02
Yeah, so next time you're going to provide some gyms.
Andrew Herreth 44:06
Oh, yeah, we'll have to find some gems for me to provide. Yes, I absolutely will. But this is great. This is great evidence, is great information, great evidence. This is great information for our defenders. Thank you for writing this, this paper again. We will have this in the show notes, a link to a Dropbox folder for you to download and review. Keep in your quiver, it's great information. Just for you to be prepping your case up with.
Andrew Decker 44:36
I have to be honest, I have to thank Patty Treece up in Denton. She's the one who invited me to speak on this topic, and it is obviously a big topic. It's a heavy topic. It was fun to speak on. I learned a ton, and it truly is. Somebody raises a question, I'm like, I've got the answer to that, and I pull up the paper, and I. It makes me look really smart.
Andrew Herreth 45:01
Yeah, that's wonderful. Yeah, that's, that's the best, best part about writing and presenting throughout the state is, you know, you become, you become a resource for all of our other defenders out there. So good on you, brother.
Andrew Decker 45:15
Well, we try, we try. What else you got coming
Andrew Herreth 45:20
up? You're, you're going down, train the trainers, you got any trials coming up?
Andrew Decker 45:25
Yes, some, you know, but you never know what's really going to go and what's not. I have a few where self-defense is going to be claimed. It's going to be tough, it's going to be tough to really substantiate that, but I think based it's possible, and the question is whether I'm going to let the story as it's told by the injured party be enough that it doesn't make sense, or do I put my guy on and actually tell his story to really raise a self-defense claim? Yeah, that's a tough deal, because neither one of these guys have clean histories.
Andrew Herreth 46:06
Yeah,
Andrew Decker 46:07
so
Andrew Herreth 46:07
that is a tough deal. That's the great question of the age. Do I advise my client to testify or not?
Andrew Decker 46:14
Right, but sometimes you have to, yeah,
Andrew Herreth 46:16
that's exactly right.
Andrew Decker 46:19
You've got to be prepared for it, so
Andrew Herreth 46:20
you absolutely have to
Andrew Decker 46:24
anyway. How'd your trial go?
Andrew Herreth 46:27
You know, not well, but here's the deal. I was expecting a 30 minute guilty, and us just arguing to the judge for punishment, right? And they deliberated for almost seven hours, came back with a guilty, and the judge kind of, you know, just gave us what we wanted, so it ended up being not terrible for my client, but of course, obviously, once you get into like the six hour mark of a deliberation on a rather easy case, it's a felony, still pretty easy, you know, you start to get a little hopeful, and then you know, for the rug to be pulled out, but we did the best we could.
Andrew Decker 47:06
Yeah, it's yeah, you, here's the tough part. Our job is defense, and while the burden is on the state, they're not going to bring cases that don't have at least a good pile of evidence,
Andrew Herreth 47:24
yeah,
Andrew Decker 47:24
or they shouldn't,
Andrew Herreth 47:25
right?
Andrew Decker 47:26
So,
Andrew Herreth 47:27
no, and I think you know, again, like this is my first Harris County case, right? So to go to trial, and so I just think, you know, I'm excited about trying more cases and showing more prosecutors, like I'm not the guy that's going to back down from a trial, we, you know, I will, I will try cases, and I think, I think these, you know, I think that having that mentality, you know, as we do, you know, travels throughout a prosecution office and helps our clients in the long run.
Andrew Decker 47:58
Yeah, I think it does, think it does, so that's all I got, man. It's all I got
Andrew Herreth 48:03
to me too.
Andrew Decker 48:06
We will.. this is technically the july 1. We're going to try to have one for you before the end of the month, and then hopefully have one for you in early August, even if they're not exactly on the first and 15th. You can still find us on the web at Texas Crim defense.com you can google Andrew Herreth or Andrew Decker. Couldn't find either one of us. Feel free to reach out. We love to know what you want to hear about. If you have an idea, a story, I have some people that I think want some dust settles will be on the show. We will get you on. We want to hear from you.
Andrew Herreth 48:38
We absolutely do. Please reach out to us. How do we do that?
Andrew Decker 48:42
I just told them,
Andrew Herreth 48:44
and I was listening. So, yes, but that is the best way to get on, is emailing us a question, emailing us an update on their, on a case, on a wild case that you have. We want to talk to you.
Andrew Decker 49:02
Yes, we love it. We love it. So, for Andrew Herreth, I'm Andrew Decker,
Andrew Herreth 49:07
and for Andrew Decker, I - who am I? For Andrew Decker, I am Andrew Herreth.
Andrew Decker 49:13
Y'all be good.