When the penal code was enacted, did it not supplant all common law crimes? Why then, should "common law" defenses still exist? I'm talking about the "defense" of accident, legal impossibility, or diminished capacity. With the exception, possibly, of due process concerns, these defense shouldn't exist since they aren't in the penal code. Am I right?

You are correct that common law defenses ended with the Penal Code being passed. It took quite a few years for the courts to digest that concept.

Former Court of Criminal Appeals Presiding Judge Mike McCormick led that charge (unsucessfully for many years). The break in the dam came in a case that asked for a jury charge on the defense of alibi.

Former Court of Criminal Appeals Judge Charles Campbell (defeated by Steve Mansfield during the great Republican takeover) wrote the opinion that finally said that alibi is not a defense recognized by the Penal Code, so it doesn't exist as a defense. It is simply a fancy way of saying that the defendant has presented evidence negating an element of the offense.

The defense of "accident" is another one. You might have noticed that Clara Harris didn't get any jury instruction on that alleged defense. It's just part of the myth of courtroom defenses.

There are still a couple of minor such defenses out there. Things like "The Right to Arm Yourself and Seek a Peaceful Resolution." I always liked that one.

But, for the most part, if it isn't in the Penal Code, you don't get it.

I felt like the CCA back-pedaled a little bit on the "involuntary intoxication" defense, though. See Mendenhall v. State, 77 S.W.3d 815 (Tex. Crim. App. 2002); see also Torres v. State, 585 S.W.2d 746 (Tex. Crim. App. 1979).

I agree that the CCA has not yet accepted the Penal Code as 100% of the law. They have expressed in a couple of opinions that law should not exist outside the Penal Code, and then they go on talking about court-made law. All I can say is that it is hard to get 9 people to agree on anything all the time.

Thank you John and John.

Hey, Rolater, maybe if you weren't galavanting around Austin all the time, I could have asked you in person! (nudge nudge)