Insanity Defense in Texas | Affirmative Defenses in Criminal Cases

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Insanity Defense in Texas

Generally, a prosecutor can prove a person committed an offense if they can prove they committed the illegal act and the person had the requisite mental state to do so. However, there are times when we as a society have decided that the person should not be held responsible for that action. The most common justifications have been codified as “affirmative defenses. The insanity defense in Texas is an example of an affirmative defense.

Insanity as a Defense in Criminal Cases in Texas

The insanity defense is one of the most difficult defenses that can be raised in Texas because Article 46C.154 provides that neither party nor the court shall inform the jury of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned. In others words, neither the prosecutor nor the defense attorney nor the judge will inform the jury that if a person is found Not Guilty by Reason of Insanity, then that person will be committed for treatment in a maximum security facility and for a disposition within 30 days (in cases where there was dangerous conduct) or the person will be will be detained for a civil commitment proceeding (in cases where there was no dangerous conduct.) The jury will not be informed that a person found Not Guilty by Reason of Insanity will not be released – although this seems like it would be relevant and pertinent information for a juror to know when they are struggling with finding a person guilty or not guilty.

How long will a person who is found NGRI (Not Guilty by Reason of Insanity) be committed for?

Under Code of Criminal Procedure 46C.002, a person who successfully asserts the defensive theory of insanity (Not Guilty by Reason of Insanity) in Texas will not be released from custody and instead will be evaluated to determine if the person should be committed for a period not to exceed the maximum possible prison sentence for the offense they were charged with. After that term, they must be released although they can be ordered to a mental hospital or other inpatient or residential care facility or ordered to receive outpatient or community-based treatment and supervision only under civil commitment proceedings.

Texas follows the M’Naghten Rule when testing legal insanity. This test focuses on whether the defendant comprehends right from wrong at the time the offense was committed. A defendant may plead the insanity defense if the facts surrounding the event provide that mental illness prevented the defendant from understanding that his/her actions were of a wrongful nature.

“The purpose of the insanity defense issue is to determine whether the accused should be held responsible for the crime, or whether his mental condition will excuse him from responsibility.”

‖ Graham v. State, 566 S.W.2d 941, 948 (Tex. Crim. App. 1978).

The insanity defense and the requirements to raise the defense  is codified in Texas Penal Code Section 8.01:

(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.
(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

Burden of Proof for the Insanity Defense

The defendant has the burden of production and persuasion when pleading insanity. The defendant must prove the affirmative defense by a preponderance of the evidence standard.  That is because there is essentially a presumption that a person is sane so there is not reason for the State to put on evidence of his/her sanity to start. The defense may raise the issue of insanity through lay  or expert testimony. The defense only has to raise this evidence by eliciting testimony that proves by a preponderance of evidence that the defendant was insane at the time of the offense.

Proving insanity by a preponderance of evidence means that the defense only has to show that it was “more likely than not” that the defendant was insane at the time of the offense.

Burden Shifting in Texas Insanity Cases

If the defense proves, by a preponderance of evidence, that the defendant was guilty at the time of the offense, the State can only prevail if the State can prove the defendant’s sanity with proof beyond a reasonable doubt. See Manning v. State, 730 S.W.2d 744, 748-49 (Tex.Crim.App. 1987).

beyond a reasonable doubt

An Exception to the Defense Burden to Prove Insanity

In the rare situation where a court has issued a prior adjudication of insanity, and that adjudication has not been set aside, a presumption of insanity exists and the State must prove sanity beyond a reasonable doubt.

Attorneys need to be aware that Texas Code of Criminal Procedure Art. 46C.051-.052 requires that notice of an intention to offer evidence of the insanity defense should be filed with the court. In addition, attorneys should certify that such notice has been furnished to the prosecutor on the case.

(1) At least 20 days prior to the date the case is set for trial; or
(2) If the court sets a pretrial hearing before the twenty-day period, the defendant shall give notice at the hearing.

If these requirements are not followed, evidence of insanity will not be admissible unless the court finds that good cause exists for failure to give notice.

If a friend or loved one is facing criminal charges in Texas and you are looking for a lawyer to defend them in court, call the experienced criminal defense attorneys at Varghese Summersett PLLC at (817) 203-2220.

Insanity Defense


In Texas, a defendant who is facing prosecution has the option of pleading an affirmative defense if the facts support it. An affirmative defense allows a defendant to avoid legal responsibility for the charged offense. When a defendant uses an affirmative defense, the defendant is admitting guilt. However, the affirmative defense provides an excuse or justification for why the action transpired. An affirmative defense has the ability to mitigate the legal consequences of an unlawful action.

Affirmative defenses include the following:

• Insanity
Mistake of Fact
Mistake of Law


The court, the attorney representing the state, or the attorney for the defendant may not inform a juror or a prospective juror of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned.



(a) The court shall order the acquitted person to be committed for evaluation of the person’s present mental condition and for treatment to the maximum security unit of any facility designated by the department. The period of commitment under this article may not exceed 30 days.

(b) The court shall order that:

(1) a transcript of all medical testimony received in the criminal proceeding be prepared as soon as possible by the court reporter and the transcript be forwarded to the facility to which the acquitted person is committed; and
(2) the following information be forwarded to the facility and, as applicable, to the department or the Department of Aging and Disability Services:

(A) the complete name, race, and gender of the person;
(B) any known identifying number of the person, including social security number, driver’s license number, or state identification number;
(C) the person’s date of birth; and
(D) the offense of which the person was found not guilty by reason of insanity and a statement of the facts and circumstances surrounding the alleged offense.

(c) The court shall order that a report be filed with the court under Article 46C.252.

(d) To determine the proper disposition of the acquitted person, the court shall hold a hearing on disposition not later than the 30th day after the date of acquittal.


(a) If the court determines that the offense of which the person was acquitted did not involve conduct that caused serious bodily injury to another person, placed another person in imminent danger of serious bodily injury, or consisted of a threat of serious bodily injury to another person through the use of a deadly weapon, the court shall determine whether there is evidence to support a finding that the person is a person with a mental illness or with mental retardation.

(b) If the court determines that there is evidence to support a finding of mental illness or mental retardation, the court shall enter an order transferring the person to the appropriate court for civil commitment proceedings to determine whether the person should receive court-ordered mental health services under Subtitle C, Title 7, Health and Safety Code, or be committed to a residential care facility to receive mental retardation services under Subtitle D, Title 7, Health and Safety Code. The court may also order the person:

(1) detained in jail or any other suitable place pending the prompt initiation and prosecution of appropriate civil proceedings by the attorney representing the state or other person designated by the court; or

(2) placed in the care of a responsible person on satisfactory security being given for the acquitted person’s proper care and protection.

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