Texas Codes
Tex. Penal Code § 2.04 (2026)
Affirmative Defense
✓ laws through the 89th Legislature (2025)
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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).
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.”
Cleveland v. State, 177 S.W.3d 374 (Tex. App.—Houston [1st Dist.] 2005). “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.—Fort Worth 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.”
Mark Ken Tafel v. State, 524 S.W.3d 687 (Tex. App.—Waco 2016). “See TEX. PENAL CODE ANN. § 2.04 (West 2011); Meraz v.”
James Alan Jenkins v. State, 468 S.W.3d 656 (Tex. App.—Houston [14th Dist.] 2015). “See Tex. Penal Code § 2.04; Walters, 247 S.W.”
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…”
State v. Yount, 853 S.W.2d 6 (Tex. Crim. App. 1993). “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.—Houston [1st Dist.] 1995). “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.—Dallas 1991). “See Tex. Penal Code Ann. §§ 2.04 and 8.05 (Vernon 1974).”
Love v. State, 199 S.W.3d 447 (Tex. App.—Houston [1st Dist.] 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). “[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.”
Tex. Penal Code § 2.04(a): 3 cases
Mark Ken Tafel v. State, 524 S.W.3d 687 (Tex. App.—Waco 2016). “See TEX. PENAL CODE ANN. § 2.04 (West 2011); Meraz v.”
Mark Ken Tafel v. State, 524 S.W.3d 642 (Tex. App.—Waco 2016).
James Logan Diez v. State of Texas, 693 S.W.3d 899 (Tex. App.—Austin 2024).
Tex. Penal Code § 2.04(b): 1 case
Van Guilder v. State, 674 S.W.2d 915 (Tex. App.—San Antonio 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.—Waco 1996).
Jonathan Price v. State, No. 03-17-00056-CR (Tex. App.—Austin Oct. 31, 2018).
William Frank Bane v. State, No. 01-17-00747-CR (Tex. App.—Houston [1st Dist.] Dec. 11, 2018).
Johnny Lee Evans, Sr. v. State of Texas, No. 12-21-00123-CR (Tex. App.—Tyler Apr. 29, 2022).
Tex. Penal Code § 2.04(d): 45 cases
Howard v. State, 145 S.W.3d 327 (Tex. App.—Fort Worth 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.—Houston [1st Dist.] 2004).
Ex Parte McIntyre, 730 S.W.2d 411 (Tex. App.—San Antonio 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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