Is Alibi An Affirmative Defense In Texas ?
In Giesberg v. State, the Court of Criminal Appeals held:
When the new Penal Code was adopted, the Legislature chose not to designate alibi as a statutory defense. In the Texas Penal Code, alibi is not enumerated either as a defense or as an affirmative defense.
In the revised Penal Code, the statutory defense distinction is reserved for defensive theories involving a defendant's admission that he or she committed the crime, but with explanations to justify a defendant's actions or absolve a defendant of culpability.
It also includes defensive theories which do not involve admission of complicity in the commission of the alleged crime, but which nonetheless attempt to explain why a defendant is not criminally culpable.
. . . If a defendant wishes to rely upon alibi as his defense, he bears the duty of going forward with evidence raising an alibi in order to create a reasonable doubt of the defendant's presence at the time and place where the crime was committed.
If the defendant's actual presence at the time and place where the crime was committed is an essential part of the prosecution's case, the State must prove the defendant's actual presence at the scene of the crime beyond a reasonable doubt.
From this, it can be seen that an alibi can only create a doubt about whether the State has met its burden of proving that a defendant committed the offense where the defendant's actual presence at the time and place of the commission of the offense is an issue in the State's case. Giesberg v. State, 984 S.W.2d 245, 248 (Tex. Crim. App. 1998) (citations omitted).
Thus, alibi is a defensive issue which negates an element of the State's burden of proof, but does not warrant special jury instructions. Id. at 249.
The defensive issue of alibi involves nothing more than the presentation of evidence and argument that a defendant was not present at the scene of the crime to commit it. Id.
This is simply the negation of the State's allegation that a defendant did then and there upon a certain date and in a certain location commit a certain crime. Id. at 250 (citing Miller v. State, 660 S.W.2d 95, 96 (Tex. Crim. App. 1983)).
Furthermore, because such an instruction is unnecessary, the Court held, it would constitute an unwarranted comment on the weight of the evidence by the trial court. Id.