Obtaining a Self-Defense Instruction in a Criminal Jury Charge

          The best criminal appeals attorneys will often say that jury charge errors are among the best places to find reversible error. While this is true, the best scenario is not to need a criminal appeals lawyer. One way to avoid that is to get the best possible jury charge for your case.

Self-defense instructions remain important and present particular opportunities for the State to argue that the instruction should not be given or that it should be qualified.

The guide below provides direction on securing a self-defense instruction in a criminal jury charge

A.     General Rule for Obtaining a Jury Instruction in a Criminal Jury Charge

A defendant is entitled to a jury charge instruction on any asserted defense if there is evidence “from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true.” Shaw v. State, 243 S.W.3d 647, 657−58 (Tex. Crim. App. 2007); Tex. Penal Code § 2.03(c)

B.     Evidentiary Burden to Obtaining a Jury Instruction in a Criminal Jury Charge

Importantly, an accused has the right to an instruction on any defensive instruction raised by the evidence, “whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense.” Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App.2008) (quoting Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996)).

It is also well settled that an accused is entitled to a defensive instruction, whether the instruction is raised by a defendant’s testimony alone or through other evidence. Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991); Hayes v. State, 728 S.W.2d 804, 808 (Tex. Crim. App. 1987); Elmore v. State, 257 S.W.3d 257, 259 (Tex. App.—Houston [1st Dist.] 2008, no pet.). In determining whether the defendant’s testimony raises the instruction of self-defense, the truth of the defendant’s testimony is not relevant. Elmore, 257 S.W.3d at 259 (citing Rodriquez v. State, 544 S.W.2d 382, 383 (Tex. Crim. App. 1976)).

C.     Self-Defense Instructions in Criminal Jury Charges

  1. Requirements for a Self-Defense Instruction

Section 9.32 of the Penal Code provides the required elements for a self-defense instruction involving the use of deadly force. Tex. Penal Code § 9.32(a). These elements are: (1) The person would have been justified in using force against the other under § 9.31 of the Penal Code; and, (2) the actor used deadly force when and to the degree the actor reasonably believed was immediately necessary to protect the actor against the other’s use or attempted use of unlawful deadly force. Tex. Penal Code §§ 9.31(a), 9.32(a).

  1. Definitions

The Penal Code defines “deadly force” in the context of Chapter 9 as, “force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” Tex. Penal Code § 9.01(3). Depending on the circumstances surrounding the event, the use of fists can be “deadly force” under this section of the Penal Code. Bundy v. State, 280 S.W.3d 425, 435 (Tex. App.―Fort Worth 2009, pet ref’d.) (citing to Schiffert v. State, 257 S.W.3d 6, 14 (Tex. App.―Fort Worth 2008, pet. dism’d)).

The Penal Code defines “unlawful” as, conduct that is “criminal or tortious or both . . .” Tex. Penal Code § 1.07(a)(48).

“Serious bodily injury” is an injury that creates a “substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Penal Code § 1.07(a)(46).

The Penal Code defines “Reasonable belief” as “a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” Tex. Penal Code § 1.07(a)(42).

The Penal Code does not define the term “provoke.” See generally, Tex. Penal Code §§ 1.07 & 9.01. Under the common law, a defendant has “provoked” a victim when: (1) the defendant did some act or used some words that provoked the attack on him, (2) the act or words were reasonably calculated to provoke the attack, and (3) the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Mendoza v. State, 349 S.W.3d 273, 279 (Tex. App.―Dallas 2011, pet ref’d) (citing Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998)).

  1. Exceptions to Self-Defense Instruction and Inclusion in Jury Charge with Limiting Instruction

a.  Exceptions to Self-Defense Instruction in a Criminal Jury Charge

A person may not use force to respond “to a verbal provocation alone.” Tex. Penal Code § 9.31(b)(1).

Additionally, the use of force against another is not justified if the actor “sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was carrying a weapon in violation of section 46.02 of the penal code.” Tex. Penal Code § 9.31(b)(5)(A). Section 46.02 of the Penal Code governs the unlawful carrying of a weapon. Tex. Penal Code § 46.02.

Finally, a person is not entitled to a self-defense instruction in the jury charge if the defendant, “provoked the other’s use or attempted use of unlawful force. . . ” Id. § 9.31(b)(4).

b.   If a Fact Issue Exists Concerning the Instruction, then the Exceptions are Included in the Jury Charge with Self-Defense                                            Instruction and Jury is to Decide Whether Exception Applies

Where there is a fact issue raised on any of the elements in § 9.31(b) (the exceptions to the self-defense instruction), a defendant is entitled to a self-defense instruction if he satisfied the requirements of section 9.31(a) (the general requirements for a self-defense instruction). Williams v. State, 35 S.W.3d 783, 786 (Tex. App.―Beaumont 2001, pet ref’d.); Barron v. State, 05-08-00637-CR, 2010 Tex. App. LEXIS 2721, 2010 WL 1294078 at *6 (Tex. App.―Dallas, pet ref’d. Apr. 6, 2010) (not designated for publication) (citing Elmore, 257 S.W.3d at 258.)) Generally, issues like provocation or whether the defendant carried a gun to a discussion are fact issues that are included in the charge as limitations to self-defense. See Tex. Penal Code § 9.31(b)(5)(A); Lee v. State, 259 S.W.3d 785, 789−91 (Tex. App.―Houston [1st Dist.], pet. denied).

However, when the evidence―viewed in the light most favorable to the defendant―establishes as a matter of law that force is not justified in self-defense, then no self-defense instruction is required to be included in the jury charge. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).

D.     Self-Defense Instruction Cases

Generally, the cases on self-defense instructions fall into two categories. The first category is cases in which a self-defense instruction was requested and then denied by the trial court. The second category comprises cases in which the self-defense instruction was requested and received but an objected-to-limiting instruction that allowed the jury to determine the validity of the self-defense claim was also included in the charge. This brief will address each category individually.

  1. Cases in which A Self-Defense Instruction was Requested and Denied

a.   Moore v. State

Moore was charged with and convicted of murder. Moore v. State, 392 S.W.3d 697 (Tex. App.―Dallas 2010, no pet.) (withdrawn from publisher). Moore requested a self-defense instruction but the trial court denied the instruction. Id. In Moore, the appellant, under any version of the events, sought an explanation of some disputed matter while carrying a weapon in violation of § 46.02 of the Penal Code.[1] Id. at *1−*5. The Fifth Court of Appeals recited the facts of the case and then concluded that “the undisputed evidence was that Moore approached [the victim and his friends] in the parking lot seeking a discussion with the men about their differences over comments made to Moore’s ‘female.’ . . . Accordingly, as a matter of law, Moore was not justified in using deadly force.” Id. at *10.

b.   Lay v. State

Lay also concerned a conviction for murder. Lay v. State, 359 S.W.3d 291 (Tex. App.―Texarkana 2012, no pet). In Lay, the undisputed facts showed that Lay gave a man named Feggett money for a cookout. Id. at 294. Feggett used the money to purchase drugs and when Lay learned that there would not be a cookout and that Feggett had spent the money on drugs Lay left angrily while threatening to kill Feggett. Id. Lay then returned to Feggett’s apartment to confront him about the money and, while there, Lay shot Feggett. Id. Lay requested a self-defense instruction, but the trial court held that as a matter of law that he was not entitled to this instruction. Id. at 298. The Texarkana Court of Appeals agreed. Id. Specifically, the intermediate-appellate court held that, “The undisputed evidence was that after the first altercation, Lay returned to his home, took possession of his friend’s gun, returned to [the victim’s] apartment complex, and confronted [the victim], seeking ‘to convince [the victim] to acknowledge wrongdoing in swindling money from’ him.”[2] (Emphasis added.). The Court then concluded, “Because Lay sought a discussion concerning his difference with [the victim] . . . [Lay] was not entitled to an instruction on the instruction of self-defense as a matter of law.” Id.   (Emphasis added.).

c.   Williams v. State

Williams too concerned a conviction for murder. Williams v. State, 35 S.W.3d 783 (Tex. App.―Beaumont 2001, pet ref’d). This case arose from a stepfather’s anger at a non-family member who punished Williams’ stepson with a belt. Id. Williams went to this non-family member’s home with a belt and a gun to discuss the beatings. Id. Williams possessed the gun in violation of § 46.02 of the Penal Code. Id. Williams hit the non-family member with the belt, the non-family member grabbed Williams’ gun, Williams regained control of the gun and shot the non-family member. Id. Williams appealed his conviction on the basis that the trial court had erroneously refused his request for a self-defense instruction in the jury charge. Id. The Williams court explained that, “where there is a fact issue raised on any of the elements in the ‘carrying the gun to the discussion’ section [section 9.31(b)(5)], a defendant would be entitled to a self-defense charge if he satisfied the requirements of section 9.31(a);. . .” Id. at 786. The Williams court held, however, that the trial court properly denied the instruction because “the record . . . clearly shows that Williams intentionally sought out [the victim] to confront him about the spanking incident and that he intentionally brought the handgun with him and used it to shoot the victim,. . .” Id. (Emphasis added.).

  1. Objection Made to Limiting Instruction on Self-Defense Instruction

a.   Lee v. State[3]

Lee is the leading case in this jurisprudence. Lee v. State, 259 S.W.3d 785 (Tex. App.―Houston [1st Dist.] pet ref’d). Lee concerned a conviction for murder. Id. at 789. The trial court included the requested self-defense instruction but also included an objected-to-limiting instruction that directed the jury to find that Lee had not acted in self defense if they found beyond a reasonable doubt that while unlawfully carrying a handgun and “seeking an explanation from the complainant” that Lee killed the victim. Id. The Lee Court held that:

Appellant had a prior dispute with the deceased, and some evidence existed that appellant was seeking a discussion with [the deceased] when he shot [the deceased]. Appellant’s walking up and speaking to [the deceased] about the subject of their disagreement, the robbery and subsequent conduct by the gang members, while carrying an unlawful weapon, was some evidence of appellant’s effort to have a discussion with Alexander, raising a [fact] instruction under section 9.31(b)(5)(B) of the Penal Code.. . . Because some evidence raised the instruction, we hold that the trial court did not err by instructing the jury that it should find against appellant on his claim of self-defense if it found, beyond a reasonable doubt, that deadly force was used by appellant at a time when he was seeking a discussion with [the deceased] while unlawfully carrying a weapon.  Id. at 790−91.

b.   Skief v. State

Skief, decided by the Fifth Court of Appeals in 2013, also concerned a conviction for murder. Skief v. State, 05-12-00223-CR, 2013 Tex. App. LEXIS 6247, 2013 WL 2244336, at *1 (Tex. App.―Dallas 2013, no pet.) (not designated for publication). Skief requested and received a self-defense instruction in the charge, but he also received a limiting instruction similar to that given in Lee. Id. On appeal, Skief argued that there was no evidence to support the submission of the limiting instruction. The Court recited the facts, relied on the reasoning from Lee, and concluded,

[t]he trial court properly instructed the jury. There is sufficient evidence from which a rational trier of fact could find appellant sought an explanation from or discussion with the complainant after appellant’s car suddenly swerved and struck or nearly struck the complainant. Because there is evidence raising the instruction, we therefore conclude the trial court did not err by instructing the jury under section 9.31(b)(5)(A), and that the jury charge does not contain error. Id. at *11.[4]

c.   Thomas v. State

Thomas is an anomalous case and it stands for the proposition that every requirement in the statute must be satisfied before an exclusion to the self-defense instruction is properly included in the jury charge. Thomas v. State, 07-11-00081-CR, 2012 Tex. App. LEXIS 809, 2012 WL 280578 (Tex. App.―Amarillo 2012, pet ref’d.) (case transferred from the Dallas Court of Appeals to Amarillo, underlying conviction was rendered by a trial court in Dallas County). In Thomas, the Amarillo Court of Appeals held that the trial court committed reversible error when it issued the standard limiting charge with the self-defense instruction because there was no evidence to support the required element that the appellant sought an “explanation or discussion with the other person ‘while the actor’ was carrying a weapon in violation of section 46.02.” Id. at *13. (Emphasis original.). Ultimately, the Court concluded that “we see that the element of the limitation that is missing is seeking the discussion or explanation while armed.” Id.

E.  Conclusion

To secure a self-defense instruction a client is almost always going to have to testify on his own behalf. Before relying on the self-defense instruction a careful analysis must be made to determine whether a “reasonableness” instruction is likely to be included the charge.

[1] The witnesses provided two versions of the events leading to the shooting. Under one set of facts, Moore was upstairs, came out on a balcony, and then told the victim to stop harassing a specific woman. Moore then went downstairs, while armed, to “make sure there was ‘no further disrespect’ [towards the women.].” Moore then left and returned a few minutes later and asked, “What’s up now with y’all?” and then produced his pistol. Id. at *1−*3. In Moore’s version of events he stepped out on the balcony and told the victim and his friends to stop harassing the women. The victim and his friends pretended to be unable to hear Moore, so Moore went downstairs, while illegally armed, and repeated his entreaty. Moore testified that he then turned to leave the scene and as he did so one of the men said something to Moore. Moore then turned and approached the man and said, “Man, what you say?” At that point the man pulled a gun and then Moore pulled a gun. Id. at *3−*5.

[2] Id.

[3] Of note, the authoring justice of this opinion now sits on the Court of Criminal Appeals.

[4] Id. at *11. For similar holdings on almost identical fact instructions, see e.g., Kelley v. State, 05-09-0143-CR, 2012 Tex. App. LEXIS 5361, 2012 WL 2628074 (Tex. App.―Dallas July 6, 2012, pet ref’d) (not designated for publication) (holding “Viewing the evidence in the light most favorable to giving the instruction, the record reflects that Appellant and [his victim] had a disagreement over appellant’s presence . . . in [the] apartment. They argued, both through the open window and then again outside the apartment. From the evidence, we conclude that a rational jury could have found beyond a reasonable doubt that appellant and [the victim] had their differences and that appellant ‘sought an explanation from or discussion with’ [the victim] concerning their differences. Therefore the trial court properly submitted the [limiting] instruction to the jury.”).