Affirmed and Opinion filed October 15, 2015.




                                      In The

                     Fourteenth Court of Appeals

                                NO. 14-14-00847-CR

                            CARLOS A. ARIAS, Appellant
                                         V.
                        THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 13
                           Harris County, Texas
                        Trial Court Cause No. 5651

                                  OPINION


      We must decide whether the State, in its burden to establish guilt beyond a
reasonable doubt, must negate every exception to the requirement for a driver to
establish financial responsibility. Concluding applicability of the exceptions to
such requirement is a defense and the inapplicability thereof is not an element of
the offense, we affirm appellant Carlos A. Arias’ conviction for failure to establish
financial responsibility.
                                     Background

      An officer observed appellant speeding in his car and pulled him over. The
officer asked appellant for proof of financial responsibility, but he had none.
Appellant was charged with failure to establish financial responsibility, and the
case was tried before a jury in municipal court. At the close of the State’s case-in-
chief, appellant moved for directed verdict on the basis that the State had not
negated the statutory exceptions to the requirement to establish financial
responsibility. The motion was denied. A jury found appellant guilty and assessed
a fine of $175 plus court costs. Appellant appealed to the county criminal court at
law, which affirmed the conviction.

                                      Discussion

      When a person convicted of an offense in a municipal court of record
appeals that conviction to a county criminal court, the county criminal court must
determine the appeal on the basis of any errors shown in the municipal court
record. Tex. Gov’t Code § 30.00014(b) (“An appeal from the municipal court of
record may not be by trial de novo.”). The county criminal court may affirm,
reverse, or reform the municipal court’s judgment. Id. § 30.00024(a); Swain v.
State, 319 S.W.3d 878, 879 (Tex. App.—Fort Worth 2010, no pet). The defendant
may then appeal to the court of appeals if the county criminal court affirms the
municipal court’s judgment and if the fine assessed against the defendant exceeds
$100. Tex. Gov’t Code § 30.00027(a); Swain, 319 S.W.3d at 879. Our review in
such a case is limited to those issues considered by the county criminal court. See
Tex. Gov’t Code § 30.00027(b)(1) (setting forth requirement that in an appeal from
a municipal court of record, the record and briefs from the appeal to the county
court constitute the record and briefs at the court of appeals).

      Appellant presented three issues to the county criminal court, revolving
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around whether the State was required to negate the exceptions to the requirement
to establish financial responsibility. Appellant argues that (1) the trial court erred in
denying his motion for directed verdict because the State failed to plead the
exceptions in the charging instrument and prove beyond a reasonable doubt that
the exceptions did not apply; (2) as a result, the trial court erred in overruling
appellant’s objection to the jury charge and request to include the exceptions in the
charge; and (3) the jury’s guilty finding is not supported by legally sufficient
evidence because the State did not present evidence to negate the exceptions.

       I.      State Not Required to Negate Exceptions to                             Financial
               Responsibility Requirement as an Element of Offense
       In his first issue, appellant argues the trial court erred in denying his motion
for directed verdict because the State failed to plead the exceptions to the financial
responsibility requirement in the charging instrument and prove beyond a
reasonable doubt that the exceptions did not apply. 1 We conclude that the
exceptions are defenses that the defendant must raise and not an element of the
offense that the State must plead and negate.

       Generally, when a penal statute includes an exception as part of the statute
itself, the State must negate the existence of the exception in the indictment of the
offense and prove beyond a reasonable doubt that the defendant or defendant’s
conduct does not fall within the exception. Baumgart v. State, No. 14-14-00306-
CR, 2015 WL 3986153, at *2 (Tex. App.—Houston [14th Dist.] June 30, 2015, no.
pet. h.) (citing Tex. Pen. Code § 2.02). This rule applies to exceptions to criminal
conduct in the Penal Code as well as penal provisions included in civil statutes. Id.
Failing to negate an exception is the same as failing to allege an essential element

       1
         See Tex. Code Crim. Proc. art. 45.032 (“If, upon the trial of a case in a . . . municipal
court, the state fails to prove a prima facie case of the offense alleged in the complaint, the
defendant is entitled to a directed verdict of ‘not guilty.’”).

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of the offense and renders the indictment void. Id. However, when an exception is
in a separate section from the provision that states the offense and a prima facie
case can be made without proof negating the exception, it is not essential for the
State to negate the exception. Id. at *3.

       Under the Transportation Code, a person may not operate a motor vehicle in
Texas unless that person establishes financial responsibility. Tex. Transp. Code
§ 601.051. Several exceptions apply to this requirement.2 Id. § 601.052.
Compliance typically involves the purchase of an automobile liability insurance
policy. See id. §§ 601.071–.088. The failure to comply is a misdemeanor offense
punishable by a fine. Id. § 601.191. The legislature could have expressly labeled
the above referenced exceptions as “defenses” to the financial responsibility
requirement, but because it did not, we must examine the broader statutory scheme
to determine whether the exceptions are defenses. See, e.g., Chase v. State, 448
S.W.3d 6, 18, 21-22 (Tex. Crim. App. 2014) (concluding statute outside of Penal
Code envisioned defense to criminal prosecution as well as defense from civil
liability).

       Unlike a statutory exception to an offense that must be negated by the State,
a defense must be raised by the defendant. Tex. Penal Code § 2.03(b). A defendant
bears the initial burden to produce some evidence that supports the defensive
theory. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Kirk v. State,
421 S.W.3d 772, 777 (Tex. App.—Fort Worth 2014, pet. ref’d). Once the
defendant produces such evidence, the State then bears the ultimate burden of
persuasion to disprove the defense beyond a reasonable doubt. Zuliani, 97 S.W.3d

       2
          The relevant statutory section is entitled “Exceptions to Financial Responsibility
Requirement” and states that the requirement “does not apply to” (1) the operation of certain
types of vehicles or (2) a volunteer fire department for the operation of a motor vehicle owned by
the volunteer fire department. See Tex. Transp. Code § 601.052.

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at 594. A defendant is entitled to acquittal if there is reasonable doubt on the issue.
Tex. Penal Code § 2.03(d).

      No Texas court has determined whether the State must negate the exceptions
to the financial responsibility requirement as an element of the offense or whether
the exceptions are defenses that must be raised by the defendant. To determine
whether section 601.052 lists exceptions the State must negate or defenses the
defendant must raise, we must decide whether they are a necessary part of the
definition or description of the offense. See Bragg v. State, 740 S.W.2d 574, 576
(Tex. App.—Houston [1st Dist.] 1987, pet. ref’d).

      “Financial responsibility” is defined under the statute as “the ability to
respond in damages for liability for an accident that (A) occurs after the effective
date of the document evidencing the establishment of the financial responsibility;
and (B) arises out of the ownership, maintenance, or use of a motor vehicle.” Tex.
Transp. Code § 601.002(3). The section of the statute describing as a penal offense
the operation of a motor vehicle without establishing financial responsibility is
section 601.191, which is located in subchapter G, entitled “Failure to Maintain
Motor Vehicle Liability Insurance or Otherwise Establish Financial Responsibility;
Criminal Penalties.” Id. § 601.191. The sections at issue, “Requirement of
Financial Responsibility,” section 601.051, and “Exceptions to Financial
Responsibility Requirement,” section 601.052, are in a separate section, subchapter
C, entitled, “Financial Responsibility; Requirements.” Id. §§ 601.051-.052.
Accordingly, the exceptions for the requirement for financial responsibility are in a
separate subchapter from the provision stating the offense. See Baumgart, 2015
WL 3986153, at *3.

      Section 601.191 is entitled, “Operation of Motor Vehicle in Violation of
Motor Vehicle Liability Insurance Requirement; Offense,” and states, “A person

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commits an offense if the person operates a motor vehicle in violation of Section
601.051.” Tex. Transp. Code § 601.191. It sets forth the criminal penalties for such
violations, but does not cite or otherwise reference the exceptions listed in section
601.052. Id. § 161.191(b)-(c). Accordingly, we conclude the exceptions listed in
section 601.052 are not a necessary part of the definition or description of the
offense. See Bragg, 740 S.W.2d at 576 (holding exceptions that were in separate
subchapter from offense were neither “a necessary part of the definition nor
description of the offense” and “it [would be] unreasonable to expect an indictment
to include negations of [numerous] situations to which the offense does not
apply”). Because the section describing the offense states only that a person
commits an offense by operating a motor vehicle in violation of section 601.051, a
prima facie case can be made without proof negating the exceptions. See
Baumgart, 2015 WL 3986153, at *3.

       We further note that the State generally is not required to negate as an
element of the offense matters “peculiarly within the knowledge of the defendant”
because such matters support a defensive theory. See, e.g., Rosemond v. United
States, 134 S. Ct. 1240, 1256-57 (2014) (“The usual rule that a defendant bears the
burden of proving affirmative defenses is justified by a compelling, commonsense
intuition: ‘[W]here the facts with regard to an issue lie peculiarly in the knowledge
of a party, that party is best situated to bear the burden of proof.’” (citation
omitted)); Dixon v. United States, 548 U.S. 1, 9 (2006) (acknowledging principle
“in the context of the defense of duress”); Bell v. State, 62 Tex. Crim. 242, 243
(1911).3 Most of the exceptions in section 601.052 would be “peculiarly within the

       3
         In Bell v. State, the defendant had been convicted of “selling intoxicating liquor.” 62
Tex. Crim. at 242. A former Texas statute allowed the otherwise prohibited sale of liquor when it
was prescribed by a physician. See McCormick v. Tex. Liquor Control Bd., 141 S.W.2d 1004,
1005 (Tex. Civ. App.—Beaumont 1940, no writ). The defendant in Bell argued that the State was
required to plead and prove he did not have a license to sell liquor by prescription and the sales
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knowledge of the defendant”: whether the vehicle was “a former military vehicle
or . . . at least 25 years old”; “used only for exhibitions, club activities, parades,
and other functions of public interest and not for regular transportation”; and “for
which the owner files . . . an affidavit . . . stating that the vehicle is a collector’s
item”; or “a motor vehicle [with a] title . . . held in the name of a volunteer fire
department.” Tex. Transp. Code § 601.052(a). We acknowledge that some of the
exceptions may be self-evident, such as whether a neighborhood electric vehicle or
golf cart was being operated under certain circumstances. Id. However, under most
circumstances, the defendant would be more likely than the State to know whether
one of the exceptions applies.

       We conclude the exceptions are defenses that the defendant must raise and
the lack of applicability of the exceptions is not an element of the offense.
Accordingly, the State was not required to plead and prove that none of the
exceptions apply. See Bell, 62 Tex. Crim. at 243; Baumgart, 2015 WL 3986153, at
*3; Bragg, 740 S.W.2d at 576.

       We overrule appellant’s first issue.

       II.    No Evidence Any Exceptions Apply

       In his second and third issues, appellant complains that the trial court erred
in failing to instruct the jury that the State was required to prove beyond a
reasonable doubt that the exceptions to the financial responsibility requirement did
not apply and challenges the sufficiency of the evidence supporting the jury’s
verdict based on the State’s failure to negate the exceptions. We address these
related issues together.


were not made by prescription. 62 Tex. Crim. at 243. The Court of Criminal Appeals concluded
that the State was not required to prove “these negative matters” because the circumstances
surrounding the sale of the liquor were “peculiarly within the knowledge of the defendant.” Id.

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      When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether a rational jury could have found the
elements of the offense beyond a reasonable doubt. See Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)). In making this review, we consider all evidence in the record, whether it
was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013). We also consider both direct and circumstantial evidence, as well as
any reasonable inferences that may be drawn from the evidence. See Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Issues pertaining to the
existence of a defense are not submitted to the jury unless evidence is admitted
supporting the defense. Tex. Penal Code § 2.03(c).

      As discussed above, a defendant bears the initial burden to produce some
evidence that supports a defensive theory; then the burden shifts to the State to
disprove the defense beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Kirk,
421 S.W.3d at 777. Appellant presented no evidence at trial that any of the
exceptions applied. The State likewise presented no such evidence. The only
evidence presented at trial was through the officer’s testimony, which did not
address the exceptions. Accordingly, appellant was not entitled to a jury instruction
regarding the applicability of the exceptions. Tex. Penal Code § 2.03(c).

      Because appellant did not raise the defensive issue by presenting evidence
that any of the exceptions applied, the State was not required to present any
evidence negating the exceptions. Therefore, the trial court did not err in failing to
instruct the jury regarding the applicability of the exceptions, and appellant has not
demonstrated that the jury’s guilty finding was not supported by legally sufficient
evidence on the basis that the State did not present any evidence negating the

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exceptions.

      We overrule appellant’s second and third issues.

      We affirm the judgment of the county criminal court at law.




                                      /s/       Martha Hill Jamison
                                                Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Publish — TEX. R. APP. P. 47.2(b).




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