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Defenses in Texas Criminal Cases

Criminal defense isn’t just trial work, even though it sure looks like it if you watch all the TV crime shows. A lot of defending clients charged with crimes here in Texas involves working with evidence and negotiating with the government.

Defending happens a lot of the time at a desk with a keyboard, or on the phone.  Sometimes, defending happens in a courthouse hallway as well as before a judge’s bench in a motion hearing.



When Does Defending Against Criminal Charges Begin? ASAP

From the time that someone has a gut call that he or she might be under suspicion of doing something wrong by law enforcement, to the time that they are interrogated, or arrested, or charged, a legal defense case begins.  Or it should, in the best scenario.  Why?

There are many things that a criminal defense lawyer does in defense of his client.  This is why it’s so important to have a professional advocate involved as soon as possible.  He can help make sure things are done properly and legal rights are protected, for one thing.

And if there’s a strong legal defense to be found, then the sooner the better to get evidence to support it.  Any defense needs more than someone’s word or say-so.  Police or prosecutors will want admissible evidence to back up that defense before they’ll turn their focus away from you and onto other things.

Common Defenses to Criminal Charges

In both state and federal criminal justice systems, there are certain common defenses to criminal charges.  State defense attorneys and federal assistant U.S. Attorneys will recognize the following defenses to allegations of criminal conduct.

Proving up these defenses may not be exactly the same under the Texas Penal Code and federal law; however, the core defenses are alike in what they mean.   Section 9-18000 of the United States Attorneys’ Manual defines the following defenses (and details are provided in the federal prosecutors’ Criminal Resources Manual).  Any state prosecutor will recognize the following as well.

Statute of Limitations

Most cases have time deadlines for the government.  If they don’t get prosecuted within a certain amount of time then the prosecutors cannot file charges against the defendant based upon those crimes.  It will be too late.  This defense is officially known as the “statute of limitations defense.”

These time deadlines protect against defendants being asked to defend themselves and having a fair trial after evidence has disappeared or been ruined by the passage of time.  As explained the federal Criminal Resources Manual,

Statutes of limitations have been said to be a defendant’s primary safeguard against the possibility of prejudice from preaccusation delay. See United States v. Lovasco, 431 U.S. 783, 789 (1977).

We’ve discussed recent examples of how the Statute of Limitations Defense has come into play in high profile cases.  Read our posts on the Bill Cosby limitations defense here as well as the limitations defense that applied in the sex abuse allegations against Dennis Hastert.


An alibi is a great defense.   It proves innocence by showing that the individual physically could not have committed the crime because he was at another location.

You usually prove up an alibi defense with witness testimony. People who will say the defendant was elsewhere at the time that the crime was committed.  Documents can help here, too.  For example, if you went to see the Cowboys play and the crime happened during the second quarter of the game, then your ticket and parking stub are great pieces of evidence to support your alibi defense.

In federal cases, Rule 12.1(a) of the Federal Rules of Criminal Procedure controls and allows the federal prosecutor to find out the defendant’s alibi as well as his alibi witnesses.  This rule also requires the government to respond by giving the defense lawyer all names and addresses of any witnesses the prosecutor may use to rebut that alibi defense (e.g., putting the defendant at the scene of the crime, or witnesses who challenge the alibi witnesses’ testimony).  If either side doesn’t follow this evidence rule, then the judge can exclude the testimony of the undisclosed witness (other than the defendant. Rule 12.1(d).


Insanity is another defense used in both state and federal criminal cases.   It’s important to know that “insanity” isn’t the same thing as “mental competency of an accused to stand trial.”  These are two different things as explained by the United States Supreme Court.  See Pate v. Robinson, 383 U.S. 375 (1966); Dusky v. United States, 362 U.S. 402 (1960).

Insanity is not an argument that the person charged did not do the criminal act.  Instead, insanity is an “affirmative defense.’  Here, the defense is that at the time that the crime occurred, the defendant was “unable to appreciate the nature and quality of the wrongfulness of his acts” because of severe mental disease or defect.

Under federal law, this defense is controlled by the Insanity Defense Reform Act of 1984.

An insanity defense is complicated to prove.  It will need expert opinion testimony as well as factual support from witnesses and documents. However, it is a solid and sound defense in the right situation.


Entrapment is a defense where accusations are made by the defense against the government, arguing that (1) the government induced the crime to be committed and (2) the defendant did not have a pre-disposition to commit this crime before the government acted. Mathews v. United States, 485 U.S. 58, 63 (1988).

This is a strong defense, but it is complicated to prove and establish.  Here, the government is allowed to do some things many members of the public might find objectionable.  Agents of the government are allowed to pretend, to lie, to use artifice, etc., and it’s not going to be entrapment. Sorrells v. United States, 287 U.S. 435 (1932).

The agents must be shown to have stepped over the line and persuaded or coerced the defendant into committing the crime.  The Fifth Circuit, which is the federal appeals court for the State of Texas, explains this as the government creating “… a substantial risk that an offense would be committed by a person other than one ready to commit it.”   United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989).

The Biggest Defense Argument

Perhaps the biggest defense argument in both state and federal cases is the argument that the government hasn’t done its job.  The burden of proof has not been met with admissible evidence, and the defendant must go free.

This is not a defense to be asserted as much as it is a battle against the prosecution’s work and presentation of its case.

In both state and federal court, the prosecution must prove guilt “beyond a reasonable doubt.”  This must be done with authenticated, admissible evidence.

Motions to suppress evidence that reeks of hearsay or other flaws are a common tool used by defense lawyers at every step of the case to prevent prosecutors from using testimony or documents that do not meet required legal standards.

This argument can continue from the initial investigation all the way through trial to the appeals process. And it has been the key defense in many exonerations of the Innocence Project, where DNA evidence has revealed that the defendant was wrongfully convicted.


For more information, check out our web resources as well as Michael Lowe’s Case Results and his in-depth article,  Top 5 Mistakes in Defending a Texas Criminal Case.




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