Texas Codes

Tex. Penal Code § 2.04 (2026)

Affirmative Defense

✓ current as of May 2026

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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.

Notes of Decisions

Cited in 163 cases (16 in the last 5 years), 1978–2026 · leading case: Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010).

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Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010). · cites it 2× “There is considerably less force (though still some) to the argument that if a legislature does not agree with the judicial interpretation of the words or meaning of a statute, the legislature would surely have immediately changed the statute.”

Cleveland v. State, 177 S.W.3d 374 (Tex. App. 2005). · cites it 2× “See TEX. PEN.CODE ANN. § 2.04 (Vernon 2003) (stating law of affirmative defenses); see also TEX.”

Howard v. State, 145 S.W.3d 327 (Tex. App. 2004). · cites it 3× “TEX. PENAL CODE ANN. § 2.04(d) (Vernon 2003).”

Farmer, Kody William, 411 S.W.3d 901 (Tex. Crim. App. 2013). · cites it 2× “03(d), with Tex. Penal Code § 2.04(d). The first proposed instruction informed the jury that involuntary intoxication is an affirmative defense stated, You are instructed that involuntary intoxication is an affirmative defense to prosecution.”

Mark Ken Tafel v. State, 524 S.W.3d 687 (Tex. App. 2016). · cites it 6× “See TEX. PENAL CODE ANN. § 2.04 (West 2011); Meraz v.”

James Alan Jenkins v. State, 468 S.W.3d 656 (Tex. App. 2015). · cites it 4× “See Tex. Penal Code § 2.04; Walters, 247 S.W.”

Alford v. State, 866 S.W.2d 619 (Tex. Crim. App. 1993). · cites it 2× “05(a), and that "[i]f 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", TEX.PENAL CODE ANN. § 2.04(d). [3] At trial appellant objected to…”

State v. Yount, 853 S.W.2d 6 (Tex. Crim. App. 1993). · cites it 2× “Clearly, no one today argues it should be treated as an affirmative defense under Tex.Penal Code Ann. § 2.04. It is clear to me that Studer is inapplicable in the instant case because the validity of the charging instrument has not been contested.”

Green v. State, 891 S.W.2d 289 (Tex. App. 1995). · cites it 3× “He argues he need only prove self-defense by a preponderance of the evidence because it is an affirmative defense under Tex.Penal Code § 2.04 (Vernon 1974). The State argues self-defense is a defense under Tex.”

Alford v. State, 806 S.W.2d 581 (Tex. App. 1991). · cites it 3× “See Tex. Penal Code Ann. §§ 2.04 and 8.05 (Vernon 1974).”

Love v. State, 199 S.W.3d 447 (Tex. App. 2006). “See Tex. Pen.Code Ann. § 2.04 (Vernon 2003). Once the trial court admits such evidence, the jury charge must contain the instruction.”

Riley v. State, 830 S.W.2d 584 (Tex. Crim. App. 1992). · cites it 2× “[2] See, Tex.Penal Code Ann. § 2.04. As a general rule the State has no obligation to bring forward evidence which establishes the defendant was sane at the time of the commission of the alleged offense.”

Show all 163 citing cases →

— Tex. Penal Code § 2.04(a) — 3 cases

Mark Ken Tafel v. State, 524 S.W.3d 687 (Tex. App. 2016). “See TEX. PENAL CODE ANN. § 2.04 (West 2011); Meraz v.”

Mark Ken Tafel v. State, 524 S.W.3d 642 (Tex. App. 2016).

James Logan Diez v. the State of Texas (Tex. App. 2024).

— Tex. Penal Code § 2.04(b) — 1 case

Van Guilder v. State, 674 S.W.2d 915 (Tex. App. 1984).

— Tex. Penal Code § 2.04(c) — 7 cases

Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010). “There is considerably less force (though still some) to the argument that if a legislature does not agree with the judicial interpretation of the words or meaning of a statute, the legislature would surely have immediately changed the statute.”

Johnson v. State, 933 S.W.2d 195 (Tex. App. 1996).

Jonathan Price v. State (Tex. App. 2018).

William Frank Bane v. State (Tex. App. 2018).

Johnny Lee Evans, Sr. v. the State of Texas (Tex. App. 2022).

— Tex. Penal Code § 2.04(d) — 45 cases

Howard v. State, 145 S.W.3d 327 (Tex. App. 2004). “TEX. PENAL CODE ANN. § 2.04(d) (Vernon 2003).”

Farmer, Kody William, 411 S.W.3d 901 (Tex. Crim. App. 2013). “03(d), with Tex. Penal Code § 2.04(d). The first proposed instruction informed the jury that involuntary intoxication is an affirmative defense stated, You are instructed that involuntary intoxication is an affirmative defense to prosecution.”

Alford v. State, 866 S.W.2d 619 (Tex. Crim. App. 1993). “05(a), and that "[i]f 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", TEX.PENAL CODE ANN. § 2.04(d). [3] At trial appellant objected to…”

Hernandez v. State, 127 S.W.3d 206 (Tex. App. 2004).

Ex Parte McIntyre, 730 S.W.2d 411 (Tex. App. 1987).

— Tex. Penal Code § 2.04(e) — 1 case

Rodriguez, Nilda Iliana, 454 S.W.3d 503 (Tex. Crim. App. 2014).

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