Statutory defenses can be some of the most powerful—and most overlooked—tools available to Texas criminal defense attorneys.

In Part 2 of our series, we examine Texas Penal Code Chapters 8 and 9, discussing affirmative defenses, justification defenses, jury charge issues, and real-world trial strategy.

Topics include insanity, mistake of fact, mistake of law, intoxication, duress, entrapment, necessity, self-defense, defense of others, defense of property, and deadly force under Texas law. Along the way, we share practical courtroom experiences and discuss how these defenses actually work before Texas judges and juries.

Topics Covered

Texas Penal Code Chapter 8

Texas Penal Code Chapter 9

General defenses to criminal responsibility

Justification defenses

Affirmative defenses

Insanity defense

Competency vs. insanity

Mistake of fact

Mistake of law

Involuntary intoxication

Duress

Entrapment

Necessity

Self-defense

Defense of third persons

Defense of property

Deadly force

Jury charge strategy

Trial tips for Texas criminal defense attorneys

Resources

Download Andrew Decker's Statutory Defenses paper

Texas Penal Code Chapters 8 & 9

Texas Code of Criminal Procedure

Connect With Us

🌐 TexasCrimDefense.com

Statutory defenses can win criminal cases—but only if you know how to recognize, preserve, and argue them.

In this episode of Andrew & Andrew on Texas Criminal Defense, Andrew Herreth and Andrew Decker celebrate seven years of the podcast before diving into one of the most overlooked topics in Texas criminal practice: statutory defenses under the Texas Penal Code and Code of Criminal Procedure.

Drawing from Decker's CLE paper on statutory defenses, the Andrews explain the critical differences between:

Exceptions to prosecution

Defenses to prosecution

Affirmative defenses

They discuss how each affects the burden of proof, when the defense must produce evidence, and how these issues impact jury instructions and appellate preservation.

The conversation also explores practical trial strategy, including:

Reading the indictment alongside the applicable Penal Code section

Finding hidden defenses inside charging instruments

Raising self-defense without putting your client on the witness stand

Using the State's own witnesses to establish your defensive theory

Protecting error through proper jury charge objections

Why writing CLE papers makes better trial lawyers

Andrew Decker also shares real courtroom examples of successfully turning prosecution witnesses into defense witnesses through effective cross-examination and explains why mastering statutory defenses can dramatically improve trial results.

Whether you're a seasoned criminal defense attorney or just beginning your practice, this episode offers practical guidance you can immediately apply in Texas criminal cases.

In This Episode

Celebrating seven years of Andrew & Andrew on Texas Criminal Defense

Why teaching CLEs makes you a stronger trial lawyer

What are statutory defenses?

Exceptions vs. defenses vs. affirmative defenses

Understanding the burden of proof in Texas criminal cases

Why every defense attorney should carefully read the charging instrument

Raising self-defense without client testimony

Jury charge strategy and preserving appellate error

Cross-examination techniques that support defensive theories

Upcoming CLEs and trial updates

Resources Mentioned

Andrew Decker's CLE Paper: Guarding Our Sacred Trust: Statutory Defenses

Harris County Public Defender's Office statutory defenses checklist

Texas Penal Code Chapter 2

Texas Code of Criminal Procedure

Texas jury charge preservation rules and appellate standards

Topics Covered

Texas criminal defense • Texas criminal law • statutory defenses • affirmative defenses • defense to prosecution • exception to prosecution • Texas Penal Code • jury charges • jury charge objections • appellate preservation • self-defense • criminal trial strategy • cross-examination • burden of proof • criminal defense CLE • Texas criminal lawyers • trial advocacy • indictment review • Texas defense attorneys

About the Podcast

Andrew & Andrew on Texas Criminal Defense is hosted by Texas criminal defense attorneys Andrew Herreth and Andrew Decker. Every episode delivers practical courtroom strategies, trial tactics, case law updates, and real-world insights designed to help criminal defense lawyers become more effective advocates throughout Texas.

For additional episodes, resources, and downloadable materials, visit TexasCrimDefense.com.

Download the materials here

State v. Barber, Brady Violations, and Texas Jail Credit Questions | Andrew & Andrew on Texas Criminal Defense

In this episode, Andrew Herreth and Andrew Decker answer listener-submitted questions and break down several important developments in Texas criminal law.

The discussion begins with a practical question every criminal defense lawyer encounters: what happens to a client's jail credit when a case is dismissed for lack of probable cause but later refiled or indicted under a different warrant number? Andrew and Andrew explain how Texas law treats backtime credit and discuss strategies for ensuring clients receive every day of credit they have earned.

The conversation then shifts to Brady violations, the Michael Morton Act, and prosecutors' ongoing discovery obligations. The hosts examine recent examples of discovery disputes and discuss the distinction between intentional misconduct and inadvertent failures to disclose evidence.

Finally, they analyze the Texas Court of Criminal Appeals' recent decision in State v. Barber (2026), a potentially significant case involving warrantless DWI arrests. The opinion clarifies that an offense is not committed within an officer's "presence or view" simply because the officer later develops probable cause through an investigation. The case could have important implications for future DWI suppression motions throughout Texas.

Topics Covered

Texas jail credit and backtime credit

Dismissal for lack of probable cause

Reindictment and new warrant numbers

Texas Code of Criminal Procedure Article 42.03

Brady violations

Michael Morton Act discovery requirements

Prosecutorial disclosure obligations

State v. Barber (2026)

Warrantless DWI arrests

Chapter 14 arrests

Probable cause standards in Texas

Criminal defense trial strategy

Recent Texas Court of Criminal Appeals decisions

Key Takeaways

Defendants should generally receive credit for all time served on the same criminal incident, even if a case is dismissed and later refiled.

Discovery violations remain a major issue in Texas criminal litigation despite the Michael Morton Act.

State v. Barber may provide new arguments for challenging certain warrantless DWI arrests.

Probable cause remains a relatively low standard, but officers must still comply with statutory arrest requirements.

Defense attorneys should carefully review arrest procedures when officers arrive after the alleged offense has already occurred.

Resources Mentioned

Texas Code of Criminal Procedure Article 42.03

Texas Code of Criminal Procedure Article 14.03

Michael Morton Act

Brady v. Maryland

State v. Barber (Tex. Crim. App. 2026)

Contact

Questions for a future episode?

Visit TexasCrimDefense.com or reach out to Andrew Herreth and Andrew Decker on social media.

Examining Trials in Texas: Strategy, Pressure, and Practical Use

In this episode of Andrew & Andrew on Texas Criminal Defense, Andrew Herreth and Andrew Decker reunite after a brief hiatus to dive into one of the more underused procedural tools in Texas criminal defense practice: the examining trial.

The Andrews discuss when examining trials actually make strategic sense, why they are rarely used in larger counties, and how they can become powerful leverage tools in rural jurisdictions — especially in felony drug cases where lab results delay indictments.

Topics covered include:

What an examining trial is under Texas law

The low probable cause burden prosecutors must meet

Why examining trials often disappear after indictment

How defense lawyers can use them to pressure prosecutors

Discovery advantages before indictment

Bond considerations and possible release outcomes

Risks of discharge and later re-arrest

Differences between Harris County and smaller rural counties

Practical strategy considerations for in-custody clients

Whether examining trials are worth filing in modern practice

The episode also turns into a broader conversation about the increasing role of AI tools like Lexis AI and ChatGPT in criminal defense work, including:

How attorneys are using AI for legal research and brainstorming

Ethical and practical concerns surrounding AI-generated legal work

Why younger lawyers may need to embrace these tools to stay competitive

Concerns about future malpractice and grievance claims involving AI

Along the way, the Andrews reflect on why the podcast matters, how listeners are using episodes to prepare for trial, and why real-world conversations between practicing defense attorneys continue to resonate with lawyers across Texas.

Key Takeaways

Examining trials remain a viable but underutilized defense tool

Filing for one can force prosecutors to move cases faster

They may create opportunities for early discovery and bond relief

Timing and jurisdiction matter enormously

AI is rapidly changing the practice of criminal defense law

Mentioned in This Episode

Texas Code of Criminal Procedure Articles 16.01, 15.17, and 16.17

Jeff Shearer’s examining trial strategy

Lexis AI and Westlaw AI

Rusty Duncan Advanced Criminal Law Course

Train the Trainers CLE Program

Connect With Us

Follow Andrew & Andrew on Texas Criminal Defense for practical discussions, war stories, and real-world strategy from two Texas criminal defense attorneys actively practicing in the trenches.

Website: TexasCrimDefense.com
Facebook: Andrew & Andrew on Texas Criminal Defense

Have a topic suggestion or a crazy courtroom story? Reach out — you might end up on the show.

In this episode of Andrew & Andrew on Texas Criminal Defense, we sit down with Natalie Ware, Chief of Misdemeanor and Training Director for the Harris County Office of Managed Assigned Counsel (MAC) to break down how Texas is transforming indigent defense at the misdemeanor level.

If you’re a Texas criminal defense attorney — or simply interested in how the criminal justice system works — this episode offers a rare inside look at:

What the Harris County Managed Assigned Counsel system actually does

How attorneys qualify to take appointed misdemeanor cases

Training requirements for MAC list attorneys

Pay structure and voucher oversight

Caseload standards in Harris County

Recidivism data and dismissal rates

The client-centered, holistic defense model

How social workers and immigration attorneys support appointed counsel

Why holistic criminal defense reduces jail time without increasing future crime

We also discuss how the MAC office provides interdisciplinary support — including social workers, immigration specialists, and resource attorneys — to ensure clients receive representation that addresses both legal and life circumstances.

For criminal defense lawyers across Texas, this episode is a must-listen discussion on the future of indigent defense reform and what other counties can learn from Harris County’s model.

If you practice criminal law, serve on appointment lists, or are interested in public defense reform, this conversation provides practical insight into how systems change happens.

Learn more about the Harris County MAC office at:
https://mac.harriscountytx.gov

00:00 Introduction

03:00 What is Managed Assigned Counsel?

08:00 How attorneys qualify for the MAC list

14:00 Training requirements for appointed counsel

19:00 Holistic defense explained

23:00 Immigration support & Padilla implications

29:00 Pay structure for appointed attorneys

37:00 Recidivism and dismissal statistics

44:00 The future of indigent defense in Texas

The Andrews discuss potential charges to look out for if you’re planning to go out and protest the government. Defenders, you may be seeing an uptick in these cases if you practice in an area thats seeing higher levels of unrest than “usual”

The Andrews sit down with Christopher Seals to discuss the struggles that affect us all as Defenders during the holiday time. You’ll hear how Christopher, as a professional, treats depression and how we can help out each other we see struggling.

sealslpc.com

The Andrews are joined, once again, with Julie Balovich and Shane O’neal who, no one is surprised to hear, are winning once again out west. Listen in as we discuss the latest shenanigans these two have come across. We’ll discuss the Motion to Disqualify and Motion to Dismiss filed by Shane and you’ll be shocked by the outcome of this trial.

Click here to see the Motions

The Andrews are delighted to have Courtney Miller back on the show to discuss a crazy situation (yes, another one!) with a client she recently got a dismissal on! Take a listen to learn some things about representing those wrongly accused!

42A.054 is confusing, especially when you throw the Government Code in the mix.