31 Annual Rusty Duncan Advanced Criminal Law Course · 31st Annual Rusty Duncan Advanced Criminal...

31st Annual Rusty Duncan Advanced Criminal Law Course

June 21-23, 2018 Hyatt Regency

San Antonio, Texas

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Defending Violent Crimes: Self-Defense and Related Texas Statutory Defenses

Speaker: Wm. Reagan Wynn Kearney | Wynn, Attorneys at Law 3100 West 7th Street, Suite 420 Fort Worth, Texas 76107 817.336.5600 phone 817.336.5610 fax [email protected] www.kearneywynn.com

Co-Author of Paper: Sheila Wynn

Tarrant County Magistrate Judge Tim Curry Justice Center 401 West Belknap Fort Worth, Texas 76196 817.884.1251 phone [email protected]

WM. REAGAN WYNN received his B.A. from the University of Texas in 1993 and his J.D.from Notre Dame Law School in 1996. After law school, Reagan served as Briefing Attorney to theHonorable David Richards, Associate Justice of the Second Court of Appeals of Texas. Since August1997, Reagan has been in private practice in Fort Worth with Jeff Kearney.

Reagan’s practice is limited to the representation of individuals and business entities in criminalinvestigations, trials, and appeals. Reagan is Board Certified in Criminal Law by the Texas Board ofLegal Specialization. Reagan serves as Co-Chair of the Strike Force Committee of the Texas CriminalDefense Lawyer's Association.

SHEILA WYNN received her B.A. from the University of Notre Dame in 1993 and her J.D.from Notre Dame Law School in 1996. Sheila was an Assistant District Attorney with the TarrantCounty District Attorney’s Office from November 1996 until October 2015. She now serves as aMagistrate Judge appointed by the elected criminal judges of Tarrant County.

Sheila has tried dozens of felony cases including two capital murder death penalty prosecutionsand numerous other murders and serious felonies. Sheila is Board Certified in Criminal Law by theTexas Board of Legal Specialization.

SELF DEFENSE AND RELATED TEXAS STATUTORY DEFENSESPAGE i

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. GENERAL PRINCIPLES THAT APPLY TO ALL DEFENSES . . . . . . . . . . . . . . . . . . . . . . 2A. No Common Law Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B. Defendant’s Entitlement to Defensive Instruction in Jury Charge . . . . . . . . . . . . . . . . 3C. Burden of Proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. SELF DEFENSE / DEADLY FORCE IN DEFENSE OF PERSON / DEFENSE OF THIRDPERSONS (TEX. PENAL CODE ANN. §§ 9.31-9.32; TEX. PENAL CODE ANN. § 9.33) . . . . . . . 4A. Basic Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4B. “Reasonable Belief” / Apparent Danger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5C. Presumption of Reasonable Belief – (TEX. PENAL CODE ANN. §§ 9.31(a), 9.32(b)) . 6D. Elimination of the Duty to Retreat (TEX. PENAL CODE ANN. §§ 9.31(e-f), 9.32(c-d)) 7E. Joint Attack / Multiple Assailants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8F. Verbal Provocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8G. Provoking the Difficulty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9H. Force Must Be Proportional to Threat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9I. Right to Seek Resolution of Differences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10J. Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11K. Use of Force to Resist Search or Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11L. Use of Confinement Instead of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12M. Use of the Threat of Force Instead of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12N. Criminal Liability for Reckless Injury or Death of Innocent Third Person . . . . . . . . 12O. Admissibility of Prior Bad Acts / Bad Character of the Alleged Injured Party . . . . . 12

IV. PROTECTION OF PROPERTY (TEX. PENAL CODE ANN. §§ 9.41-9.44). . . . . . . . . . . . . . . 13A. Basic Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13B. Use of Device to Protect Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15C. “Reasonable Belief” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15D. Use of Confinement Instead of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15E. Use of the Threat of Force Instead of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15F. Criminal Liability for Reckless Injury or Death of Innocent Third Person . . . . . . . . 15

V. NECESSITY (TEX. PENAL CODE ANN. § 9.22). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16A. Basic Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16B. “Reasonable Belief” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16C. “Imminent Harm” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16D. Provoking the Difficulty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16E. Application to Exception to Self-Defense / Defense of Third Person . . . . . . . . . . . . 17F. Application Concurrent with Self-Defense / Defense of Third Person . . . . . . . . . . . 17

SELF DEFENSE AND RELATED TEXAS STATUTORY DEFENSESPAGE ii

VI. MISTAKE OF FACT (TEX. PENAL CODE ANN. § 8.02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18A. Basic Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18B. “Reasonable Belief” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18D. Exception if Fact Was “Readily Discernable By a Simple Empirical Method of

Investigation” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19E. Application to Exception to Self-Defense / Defense of Third Person . . . . . . . . . . . . 19

SELF DEFENSE AND RELATED TEXAS STATUTORY DEFENSESPAGE 1

I. INTRODUCTION

There are two kinds of statutory defenses enumerated in the Penal Code: “defenses” and“affirmative defenses.” The main difference between a “defense” and an “affirmative defense” is theburden of proof: once raised by the evidence, the State must disprove a “defense” beyond a reasonabledoubt whereas the defense bears the burden of proving an “affirmative defense” by a preponderance ofthe evidence. Compare TEX. PENAL CODE ANN. § 2.03(d) (“If the issue of the existence of a defense issubmitted to the jury, the court shall charge that a reasonable doubt on the issue requires that thedefendant be acquitted.”) with TEX. PENAL CODE § 2.04(d) (“If the issue of the existence of anaffirmative defense is submitted to the jury, the court shall charge that the defendant must prove theaffirmative defense by a preponderance of the evidence.”)

The Penal Code breaks defenses and affirmative defenses into two categories: General Defenses toCriminal Responsibility which are found in Chapter 8 and Justifications which are found in Chapter 9. All justifications1 are “defenses” while General Defenses include both “defenses”2 and “affirmativedefenses.”3

This paper will focus on the justifications of self-defense, deadly force in defense of person, anddefense of third person. This paper will also touch on the defense of mistake of fact and the justificationdefense of necessity as they relate to self-defense, deadly force in defense of person, and defense of thirdperson.

1 The justifications, which are all “defenses,” listed in Chapter 9 are:! Public Duty (TEX. PENAL CODE § 9.21);! Necessity (TEX. PENAL CODE § 9.22);! Self-Defense (TEX. PENAL CODE § 9.31);! Deadly Force in Defense of Person (TEX. PENAL CODE § 9.32);! Defense of Third Person (TEX. PENAL CODE § 9.33);! Protection of Life or Health (TEX. PENAL CODE § 9.34);! Protection of Property (TEX. PENAL CODE §§ 9.41-9.44);! Law Enforcement (TEX. PENAL CODE §§ 9.51-9.53); and,! Special Relationships, i.e., Parent-Child, Educator-Student, and Guardian-

Incompetent (TEX. PENAL CODE §§ 9.61-9.63).

2 The “defenses” listed in Chapter 8 are:! Mistake of Fact (TEX. PENAL CODE § 8.02); and,! Entrapment (TEX. PENAL CODE § 8.06).

3 The “affirmative defenses” listed in Chapter 8 are:! Insanity (TEX. PENAL CODE § 8.01);! Mistake of Law (TEX. PENAL CODE § 8.03); and,! Duress (TEX. PENAL CODE § 8.05).


In 2007, the Legislature passed the “Castle Doctrine” amendments to the self-defense/deadly forcejustifications. See Act of March 20, 2007, 80th Leg., R.S., ch. 1, §§ 1-6, 2007 Tex. Gen. Laws 1. Theseamendments are codified, inter alia, in sections 9.31 and 9.32, Texas Penal Code. The amendments areeffective ONLY for offenses committed on or after September 1, 2007. See Act of March 20, 2007, 80th

Leg., R.S. ch. 1, §§ 5-6, 2007 Tex. Gen. Laws 1, 2.

As is discussed more thoroughly below, the amendments create a presumption of reasonablenessfor the use of force under certain circumstances and wholly eliminate the duty to retreat before usingforce or deadly force under most circumstances.4

II. GENERAL PRINCIPLES THAT APPLY TO ALL DEFENSES

A. No Common Law Defenses

! The “power to establish and define the defenses to criminal offenses” rests “within thesound discretion of the legislative branch of government.” Willis v. State, 790 S.W.2d307, 314-15 (Tex. Crim. App. 1990). Therefore, “a defense which is not recognized bythe Legislature as either a defense or as an affirmative defense does not warrant aseparate instruction.” Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998),cert. denied, 525 U.S. 1147 (1999). Therefore, the ONLY defenses available to a Texascriminal defendant are those specifically listed in the Penal Code and a criminaldefendant is not entitled to an instruction on a non-statutory defense. See, e.g.,Giesberg, 984 S.W.2d at 248-51 (holding defendant not entitled to instruction ondefense of alibi); Willis, 790 S.W.2d at 313 (holding defendant in theft case not entitledto instruction on defense of “good faith purchase of stolen goods”).

! Based on the reasoning of the Giesberg line of cases, neither party is entitled to a specialjury instruction relating to a defense if the requested instruction “(1) is not grounded inthe Penal Code, (2) is covered by the general charge to the jury, and (3) focuses thejury’s attention on a specific type of evidence that may support an element of an offenseor a defense.” See Walters v. State, 247 S.W.3d 204, 212 (Tex. Crim. App. 2007)(holding defendant claiming self-defense not entitled to special instruction on “priorverbal threats”).

4 Further, the Amendments provide complete civil immunity from liability for personal injuryor death that results from a defendant’s justified use of force or deadly force. See TEX. CIV. PRAC. &REM. CODE § 83.001 (“A defendant who uses force or deadly force that is justified under Chapter 9,Penal code, is immune from civil liability for personal injury or death that results from the defendant’suse of force or deadly force as applicable.”) After this legislative change, a person who uses force ordeadly force and claims self-defense can only be civilly liable for injury or death to a third party if hewas reckless. See TEX. PENAL CODE § 9.05.


B. Defendant’s Entitlement to Defensive Instruction in Jury Charge

! “It is well settled that an accused has the right to an instruction on any defensive issueraised by the evidence, whether that evidence is weak or strong, unimpeached orcontradicted, and regardless of what the trial court may or may not think about thecredibility of the evidence.” Grainger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999)(emphasis added) (citations omitted). Whether a defendant’s beliefs, fears, or actionsare reasonable are fact issues for the jury, and a trial court erroneously deprives a juryof the opportunity to decide the reasonableness of those issues when it fails to instructthe jury on a requested defensive issue. Id. at 39 (quoting Hayes v. State, 728 S.W.2d804, 808 (Tex. Crim. App. 1987)). In sum, a criminal defendant is entitled to aninstruction on a defensive issue so long as he doesn’t deny committing the allegedconduct and otherwise presents evidence raising the issue of the requested defense. SeeHill v. State, 99 S.W.3d 248, 250-51 (Tex. App. -Fort Worth 2003, pet. ref’d).

! A defendant’s testimony alone is sufficient to raise the issue of self-defense or anotherdefense. See, e.g., Hayes, 728 S.W.2d at 807. However, “it is clear that the issue ofself-defense may be raised by evidence other than the defendant’s testimony...” so longas there is some evidence which shows “that the defendant reasonably believed thatforce was necessary to protect himself against the unlawful force of another.” SeeOrtega v. State, 207 S.W.3d 911, 919 (Tex. App.–Corpus Christi 2006, no pet.) (citingSmith v. State, 676 S.W.23d 584 (Tex. Crim. App. 1984); Nethery v. State, 692 S.W.2d686, 704 (Tex. Crim. App. 1985); and Reed v. State, 703 S.W.2d 380, 382 (Tex.App.–Dallas 1986, pet. ref’d)). See also, e.g., Williams v. State, 796 S.W.2d 793, 800(Tex. App.–San Antonio 1990, no pet.) (“It is not necessary for the defendant to testifyin order to raise the issue of mistake [of fact].”).

! In 2010, the Court of Criminal Appeals attempted to clarify the law concerningjustification defenses such as self-defense and necessity5 by unequivocally holding the“confession and avoidance doctrine” applies to those defenses. See Juarez v. State, 308S.W.3d 398 (Tex. Crim. App. 2010). Under this doctrine, “a defendant must admit toall elements of a charged offense before the defendant will be entitled to a defensiveinstruction.” See id. at 401 (emphasis added). Thus, “[a]n instruction on a confessionand avoidance [defense] is appropriate only when the defendant's defensive evidenceessentially admits to every element of the offense[,] including the culpable mentalstate, but interposes the justification to excuse the otherwise criminal conduct.” Villav. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) (emphasis added) (citations andquotations omitted).

5 The confession and avoidance doctrine does NOT apply to defenses which, by their terms,negate the culpable mental state such as mistake of fact. See Juarez, 308 S.W.3d at 402.


! Despite the confession and avoidance doctrine requirement that the defendant admit tothe culpable mental state to be entitled to a self-defense instruction, “[t]he Penal Codedoes not require that a defendant intend the death of an attacker in order to be justifiedin using deadly force in self-defense.” See Alonzo v. State, 353 S.W.3d 778, 783 (Tex.Crim. App. 2011). This makes sense because, “[t]he self-defense provisions in the PenalCode focus on the actor’s motives and on the level of force used, not on the outcome ofthat use of force. If the actor reasonably believed that the force was necessary to protecthimself against another’s unlawful use of force, and the amount of force actually usedwas permitted by the circumstances, Sections 9.31 and 9.32 apply, regardless the actualresult of the force used.”6 See id. 20 Therefore, “[a]dmitting to the conduct does notnecessarily mean admitting to every element of the offense. For example, a defendantcan sufficiently admit to the commission of the offense of murder even when denyingan intent to kill.” See Gamino v. State, 537 S.W.3d 507, 512 (Tex. Crim. App. 2017)(citations and quotations omitted).

! A trial court has no duty to sua sponte instruct the jury on a statutory defense. SeePosey v. State, 966 S.W.2d 57, 60-61 (Tex. Crim. App. 1998). Therefore, a “defensiveissue” is not the “law applicable to the case” unless the defendant timely requests theinstruction at trial and a defendant cannot claim for the first time on appeal that a trialcourt erred by failing to give the defensive instruction subject to “egregious harm”analysis. See id. at 62.

C. Burden of Proof

! As stated above, ALL justifications in Chapter 9 of the Penal Code are “defenses.” SeeTEX. PENAL CODE § 9.02 (“It is a defense to prosecution that the conduct in questionis justified under this chapter.”). The State bears the burden of disproving beyond areasonable doubt any “defense” if it is raised by the evidence. See TEX. PENAL CODE

§ 2.03(d) (“If the issue of the existence of a defense is submitted to the jury, the courtshall charge that a reasonable doubt on the issue requires that the defendant beacquitted.”).

6 Accordingly, self-defense and other justification defenses apply to reckless conduct offenses. See Alonzo, 353 S.W.3d at 782 (“An assertion of a Chapter 9 justification defense is an assertion that thedefendant's actions were justified. An assertion that a defendant acted recklessly is an assertion that thedefendant was aware of and consciously disregarded a substantial and unjustifiable risk in gross deviationfrom the standard of care that an ordinary person would have exercised in those same circumstances. Afact-finder therefore cannot find that a defendant acted recklessly and in self-defense. But that does notmean . . . that a defendant cannot argue self-defense when charged with an offense whose requisitemental state is recklessness. The opposite is true: by arguing self-defense, a defendant is arguing that hisactions were justified, and therefore he did not act recklessly.”).


! Because of these provisions, the State is required to disprove a defense beyond areasonable doubt after the issue has been properly raised by the evidence and adefendant is entitled to a jury instruction requiring he be acquitted if the jury has areasonable doubt about the defense. See, e.g., Saxton v. State, 804 S.W.2d 910, 912-13(Tex. Crim. App. 1991); Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979),cert. denied, 446 U.S. 944 (1980).

III. SELF DEFENSE / DEADLY FORCE IN DEFENSE OF PERSON / DEFENSE OF THIRDPERSONS (TEX. PENAL CODE §§ 9.31, 9.32, 9.33)

A. Basic Principles

! “[A] person is justified in using force against another when and to the degree the actorreasonably believes the force is immediately necessary to protect the actor against theother’s use or attempted use of unlawful force.” TEX. PENAL CODE § 9.31(a) (emphasisadded).

! “A person is justified in using deadly force7 against another: (1) if the actor would bejustified in using force against the other under Section 9.31; and (2) when and to thedegree the actor reasonably believes the deadly force is immediately necessary: (A) toprotect the actor against the other’s use or attempted use of unlawful deadly force; or (B) to prevent the other’s imminent commission of aggravated kidnaping, murder,sexual assault, aggravated sexual assault, robbery, or aggravated robbery.” TEX. PENAL

CODE § 9.32 (a) (emphasis added).

! “A person is justified in using force or deadly force against another to protect a thirdperson if: (1) under the circumstances as the actor reasonably believes them to be, theactor would be justified under Section 9.31 or 9.32 in using force or deadly force toprotect himself against the unlawful force or unlawful deadly force he reasonablybelieves to be threatening the third person he seeks to protect; and (2) the actorreasonably believes that his intervention is immediately necessary to protect the thirdperson.” TEX. PENAL CODE § 9.33 (emphasis added).

7 “Deadly force” is defined as “force that is intended or known by the actor to cause, or in themanner of its use or intended use is capable of causing, death or serious bodily injury.” See TEX. PENAL

CODE § 9.01(3). “Serious bodily injury” is defined as “bodily injury that creates a substantial risk ofdeath or that causes death, serious permanent disfigurement, or protracted loss or impairment of thefunction of any bodily member or organ.” See TEX. PENAL CODE § 1.07(46). “Bodily injury” is definedas “physical pain, illness, or any impairment of physical condition.” See TEX. PENAL CODE § 1.07(8).


B. “Reasonable Belief” / Apparent Danger

! “[R]easonable belief” is defined as “a belief that would be held by an ordinary prudentman in the same circumstances as the actor.” TEX. PENAL CODE § 1.07(a)(42) (emphasis added).

! Because the reasonableness of the actor’s belief that force or deadly force wasimmediately necessary is judged from the standpoint of an ordinary person “in the samecircumstances as the actor,” a person “has a right to defend from apparent danger to thesame extent as he would had the danger been real; provided he acted upon a reasonableapprehension of danger as it appeared to him at the time.” See, e.g., Broussard v. State,809 S.W.2d 556, 559 (Tex. App.–Dallas 1991, pet. ref’d).

! The Court of Criminal Appeals has held neither party is entitled to a special juryinstruction relating to a defense if the requested instruction “(1) is not grounded in thePenal Code, (2) is covered by the general charge to the jury, and (3) focuses the jury’sattention on a specific type of evidence that may support an element of an offense or adefense.” See Walters v. State, 247 S.W.3d 204, 212 (Tex. Crim. App. 2007).

! Prior to Walters, there was authority indicating a defendant is entitled to a specificinstruction on the right to defend from apparent danger as opposed to actual danger. See, e.g., Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim. app. 1976) (“This Court,under the former Penal Code (1925), has consistently held that where the evidence raisesthe issue of apparent danger, the court, in instructing the jury on the law of self-defense,should tell it that a person has a right to defend from apparent danger to the same extentas he would had the danger been real, provided he acted upon a reasonable apprehensionof danger as it appeared to him from his standpoint at the time.... There is nothing in thenew Penal Code which conflicts with the above rule.”). In Walters, the Court noted thepropriety of a special “apparent danger” instruction was not at issue, but went on indicta to imply such an instruction is not proper so long as the jury is instructed on theproper statutory definition of “reasonable belief.” See Id. at 213 n. 37 (citing Valentinev. State, 587 S.W.2d 399 (Tex. Crim. App. 1979)). Since Walters, appellate courts haveconsistently upheld trial courts’ refusals to give the requested apparent dangerinstructions. See, e.g., Bundy v. State, 280 S.W.3d 425, 430 (Tex. App.–Fort Worth2009, pet. ref'd) (citing Valentine v. State, 587 S.W.2d 399, 400–01 (Tex. Crim. App.[Panel Op.] 1979)); see also Lowe v. State, 211 S.W.3d 821, 824–25 (Tex.App.–Texarkana 2006, pet. ref’d).


C. Presumption of Reasonable Belief – (TEX. PENAL CODE §§ 9.31(a), 9.32(b))

! In 2007, the Texas Legislature amended the self-defense statutes to create a presumptionof reasonableness with regard to an actor’s belief force OR deadly force wasimmediately necessary if the actor:

(1) knew or had reason to believe the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully andwith force, the actor's occupied habitation,8 vehicle,9 or place of business oremployment;

(B) unlawfully and with force removed, or was attempting to remove unlawfullyand with force, the actor from the actor's habitation, vehicle, or place of businessor employment; or

(C) was committing or attempting to commit aggravated kidnaping, murder,sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanorthat is a violation of a law or ordinance regulating traffic at the time the force wasused.

See TEX. PENAL CODE §§ 9.31(a), 9.32(b)

! Note the Amendments apply in the exact same manner to the use of force and the useof deadly force, i.e., so long as the actor qualifies for the protection of the Amendments,he may use deadly force under the exact same circumstances he may use non-deadlyforce.

8 “Habitation” is defined as “a structure or vehicle that is adapted for the overnightaccommodation of persons, and includes: (A) each separately secured or occupied portion of the structureor vehicle; and (B) each structure appurtenant to or connected with the structure or vehicle.” See TEX.PENAL CODE § 9.01(4); TEX. PENAL CODE 30.01(1).

9 “Vehicle” is defined as “any device in, on, or by which any person or property is or may bepropelled, moved, or drawn in the normal course of commerce or transportation, except such devices asare classified as ‘habitation.’” See TEX. PENAL CODE § 9.01(5); TEX. PENAL CODE 30.01(3).


! Because this is a presumption in favor of the defense, if the evidence produced at trial“give[s] rise to the presumption,” then “the issue of the existence of the presumed factmust be submitted to the jury unless the court is satisfied that the evidence as a wholeclearly precludes a finding beyond a reasonable doubt of the presumed fact....” SeeTEX. PENAL CODE § 2.05(b)(1) (emphasis added). Presumably, this means the trial courtcould grant a directed verdict on the presumed fact and instruct the jury accordingly.

! If the existence of the presumed fact is submitted to the jury, the trial court is requiredto instruct the jury: “(A) the presumption applies unless the state proves beyond areasonable doubt that the facts giving rise to the presumption do not exist; (B) if thestate fails to prove beyond a reasonable doubt that the facts giving rise to thepresumption do not exist, the jury must find that the presumed fact exists; (C) eventhough the jury may find that the presumed fact does not exist, the state must provebeyond a reasonable doubt each of the elements of the offense charged; and (D) if thejury has a reasonable doubt as to whether the presumed fact exists, the presumptionapplies and the jury must consider the presumed fact to exist.” See TEX. PENAL CODE

§ 2.05(b)(2).

D. Elimination of the Duty to Retreat (TEX. PENAL CODE §§ 9.31(e-f), 9.32(c-d))

! Prior to September 1, 2007, section 9.32 specifically provided a person was justified inusing deadly force only “if a reasonable person in the actor’s situation would not haveretreated.” This limitation did not apply “to an actor who uses force against a personwho is at the time of the use of force committing an offense of unlawful entry in thehabitation of the actor.” There was no mention of a duty to retreat for the use of non-deadly force in section 9.31.

! In 2007, the Texas Legislature amended the self-defense statutes to eliminate the dutyto retreat. Sections 9.31 and 9.32 now both specifically provide:

(1) A person who has a right to be present at the location where the force or deadly forceis used, who has not provoked the person against whom the force or deadly force isused, and who is not engaged in criminal activity at the time the force or deadly forceis used is not required to retreat before using either force or deadly force pursuant tosections 9.31 and/or 9.32, see TEX. PENAL CODE §§ 9.31(e), 9.32(c); and,

(2) For purposes of determining whether such an actor reasonably believed the use offorce or deadly force was necessary, a finder of fact may not consider whether the actorfailed to retreat, see TEX. PENAL CODE §§ 9.31(f), 9.32(d).

! Note again the Amendments apply in the exact same manner to the use of force and theuse of deadly force.


! In light of the statutory amendments, it is error for a trial court to instruct a jury on aduty to retreat because such instructions are not authorized by statute and they constitutecomments on the weight of the evidence. See, e.g., Morales v. State, 357 S.W.3d 1, 6(Tex. Crim. App. 2011).

E. Joint Attack / Multiple Assailants

! The Court of Criminal Appeals has previously held “a charge which is confined only tothe right of self-defense against the deceased is too restrictive if there is evidence thatmore than one person attacked the defendant.” See, e.g., Frank v. State, 688 S.W.2d863, 868 (Tex. Crim. App. 1985). Therefore, “a defendant is entitled to a charge on theright of self-defense against multiple assailants if there is evidence, viewed from theaccused’s standpoint, that he was in danger of an unlawful attack or a threatened attackat the hands of more than one assailant.” Id. (citations and quotations omitted).

! In a case where the evidence indicates there were multiple assailants, the Court ofCriminal Appeals has previously held “the court should instruct the jury that [the actor]had the right to defend himself against either or both” of the assailants. See Brown v.State, 651 S.W.2d 782, 784 (Tex. Crim. App. 1983) (emphasis in original). See alsoMata v. State, 939 S.W.2d 719, 722 (Tex. App.–Waco 1997, no pet.) (“the Court ofCriminal Appeals has held that a defendant is entitled to a charge on the right to defendagainst multiple assailants if there is evidence, no matter how weak or contradicted, thedefendant believed himself to be in danger of attack from more than one person.”).

! It appears a defendant’s right to a multiple assailants charge has not, to date, beenabrogated by the Court of Criminal Appeals’ holding in Walters v. State, 247 S.W.3d204, 212 (Tex. Crim. App. 2007). See, e.g., Holland v. State, 481 S.W.3d 706, 710(Tex. App.–Eastland 2015, pet. ref’d) (reversing conviction for failure to give multipleassailants instruction); Echavarria v. State, 362 S.W.3d 148, 152 (Tex. App.–SanAntonio 2011, pet. ref’d) (holding trial court erred by failing to give multiple assailantscharge).

F. Verbal Provocation

! “The use of force against another is not justified... in response to verbal provocationalone....” TEX. PENAL CODE § 9.31(b)(1) (emphasis added).

! Evidence of threats made by the alleged injured party to the defendant are admissibleto prove the defendant’s fear was reasonable. See, e.g., Fielder v. State, 756 S.W.2d309, 319-20 (Tex. Crim. App. 1988). Such evidence may also be admissible to showthe injured party was the first aggressor in the encounter, even if the defendant wasunaware of the threats, so long as the evidence is relevant to the alleged injured party’s


state of mind at the time of the offense. See, e.g., Tate v. State, 981 S.W.2d 189, 193(Tex. Crim. App. 1998).

G. Provoking the Difficulty

! “The use of force against another is not justified.... if the actor provoked the other’s useor attempted use of unlawful force, unless: (A) the actor abandons the encounter, orclearly communicates to the other his intent to do so reasonably believing he cannotsafely abandon the encounter; and (B) the other nevertheless continues or attempts touse unlawful force against the actor....” TEX. PENAL CODE § 9.31(b)(4).

! If self-defense is at issue, the facts show the alleged injured party made the first attackon the defendant, and the defendant did some act or used some words intended to bringon the difficulty so as to have a pretext for inflicting injury on the alleged injured party,the State is entitled to a jury instruction that the defendant forfeits his right to self-defense if he provoked the difficulty in order to have a pretext to kill or injure thealleged injured party. See, e.g., Matthews v. State, 708 S.W.2d 835, 837-38 (Tex. Crim.App. 1986). This third element supporting a provoking-the-difficulty instruction –requiring there be some evidence from which a rational jury could find beyond areasonable doubt the act was done, or the words were used, for the purpose and with thespecific intent that the defendant would have a pretext for killing the victim – is acommon law requirement not expressly stated in the statute. See, e.g., Elizondo v.State, 487 S.W.3d 185, 200 (Tex. Crim. App. 2016). However, despite Walters, “theLegislature's codification of provocation did not eliminate the common-law element ofintent—[a]lthough not specifically stated in the current statute, the common-law elementof intent is still required under the current codification.’” See Elizondo, 487 S.W.3d at200 (citing Smith v. State, 965 S.W.2d 509, 514 (Tex. Crim. App. 1998)).

! If the State gets a provoking the difficulty instruction and the evidence shows thedifficulty was not continuous and the defendant somehow communicated to the allegedinjured party his intent to abandon the difficulty, the defendant is entitled to anabandonment of the difficulty instruction. See, e.g., Juarez v. State, 961 S.W.2d 378,383 (Tex. App.–Houston[1st Dist.] 1997, pet. ref’d) (citing Ervin v. State, 367 S.W.2d680, 683 (Tex. Crim. App. 1963)). To the extent this rule imposes an additionalrequirement – a “continuous” encounter – not found in section 9.31(b)(4), it also maynot be valid in light of Walters.

H. Force Must Be Proportional to Threat

! As stated above, a person may use force to protect himself or a third person “when andto the degree the actor reasonably believes the force is immediately necessary....” SeeTEX. PENAL CODE § 9.31(a) (emphasis added). Therefore, “[t]he amount of force used


must be in proportion to the force encountered.” E.g., Kelley v. State, 968 S.W.2d 395,399 (Tex. App.–Tyler 1998, no pet.).

! In light of Walters v. State, 247 S.W.3d 204, 212 (Tex. Crim. App. 2007), a strongargument can be made the State is not entitled to a special jury instruction on this issue.

I. Right to Seek Resolution of Differences

! “The use of force against another is not justified... if the actor sought an explanationfrom or discussion with the other person concerning the actor’s differences with theother person while the actor was: (A) carrying a weapon in violation of Section 46.02;OR (B) possessing or transporting a weapon in violation of Section 46.05.” TEX. PENAL

CODE § 9.31(b)(5).

! Pursuant to section 46.02, a person may carry a “handgun, illegal knife, or club... on theperson’s own premises10 or premises under the person’s control.” See TEX. PENAL CODE

§ 46.02(a)(1).

! A person may carry a such a weapon “inside of or directly en route to a motor vehiclethat is owned by the person or under the person’s control.” See TEX. PENAL CODE §46.02(a)(2). The only limitation on this rights is that a person may not carry “on orabout his or her person a handgun in a motor vehicle... at any time in which: (1) thehandgun is in plain view; OR (2) the person is: (A) engaged in criminal activity, otherthan a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;(B) prohibited by law from possessing a firearm; OR (C) a member of a criminal streetgang, as defined by Section 71.01.” See TEX. PENAL CODE § 46.02(a-1).

! Section 46.05 prohibits possession ONLY of “prohibited weapons.” See TEX. PENAL

CODE § 46.05.

! Arguably, if a defendant “reasonably believed that it was immediately necessary toavoid imminent harm” to illegally carry a weapon and “the desirability and urgency ofavoiding the harm clearly outweigh, according to ordinary standards of reasonableness,the harm sought to be prevented by the law proscribing the conduct....,” see TEX. PENAL

10 “Premises” is defined as “real property and a recreational vehicle that is being used as livingquarters, regardless of whether that use is temporary or permanent.” See TEX. PENAL CODE § 46.02(a-2). “Recreational vehicle” is defined as “a motor vehicle primarily primarily designed as temporary livingquarters or a vehicle that contains temporary living quarters and is designed to be towed by a motorvehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailerwith living quarters.” See id.


CODE § 9.22 , he would be entitled to an instruction on the defense of necessity as itapplies to this limitation on self-defense.

J. Consent

! “The use of force against another is not justified... if the actor consented to the exactforce used or attempted by the other.” TEX. PENAL CODE § 9.31(b)(3).

K. Use of Force to Resist Search or Arrest

! “The use of force against another is not justified... to resist an arrest or search that theactor knows is being made by a peace officer, or by a person acting in a peace officer'spresence and at his direction, even though the arrest or search is unlawful, unless theresistance is justified under Subsection (c)....” TEX. PENAL CODE § 9.31(b)(2). Further,the use of force to resist an arrest or search is justified only “(1) if, before the actoroffers any resistance, the peace officer (or person acting at his direction) uses orattempts to use greater force than necessary to make the arrest or search; AND (2) whenand to the degree the actor reasonably believes the force is immediately necessary toprotect himself against the peace officer's (or other person's) use or attempted use ofgreater force than necessary.” TEX. PENAL CODE § 9.31(c).

! It can be argued the defense of mistake of fact, see TEX. PENAL CODE § 8.02 , should beapplied to a defendant’s knowledge he is being arrested by a peace officer if thisexception to self-defense is raised by the evidence. It is clear “mistake of fact whichwould establish an affirmative defense to an offense, rather than negating an element ofthe offense, does not raise a mistake of fact defense.” See Bryan v. State, 814 S.W.2d482, 483 (Tex. App.–Waco 1991, pet. ref’d) (emphasis added). However, as statedabove, self defense is NOT an “affirmative defense” upon which the defense bears theburden of proof, but is instead a “defense” which the State bears the burden ofdisproving beyond a reasonable doubt. Thus, once raised by the evidence, the Statebears the burden of proving beyond a reasonable doubt the defendant was unlawfullyattempting to “resist an arrest or search that he knows is being made by a peace officer”at the time he used the force. See TEX. PENAL CODE § 9.31(b)(2) (emphasis added). Therefore, the State is required to prove beyond a reasonable doubt the defendant hada particular culpable mental state of knowledge, i.e., the State is required to provebeyond a reasonable doubt the defendant had actual knowledge the person attemptingto arrest or search him was, in fact, a peace officer. Accordingly, a defendant’s assertedmistake of fact that he did not know the person was a peace officer, “negate[s] the kindof culpability required,” see TEX. PENAL CODE § 8.02 , for conviction and the defenseis entitled to a mistake of fact instruction that applies to the limitation on self-defense. In the only reported case addressing this issue to date, the court of appeals held the trial


court was NOT required to apply mistake of fact to this exception to self-defense. SeeWalker v. State, 300 S.W.3d 836, 848 (Tex. App.–Fort Worth 2009, pet. ref’d).

L. Use of Confinement Instead of Force

! Generally speaking, a person may use confinement if the use of force would be justifiedunder the same circumstances so long has he “takes reasonable measures to terminatethe confinement as soon as he knows he safely can....” See TEX. PENAL CODE § 9.03.

M. Use of the Threat of Force Instead of Force

! The “threat of force is justified when the use of force is justified....” TEX. PENAL CODE

§ 9.04. Importantly, “a threat to cause death or serious bodily injury by the productionof a weapon or otherwise, as long as the actor’s purpose is limited to creating anapprehension that he will use deadly force if necessary, does not constitute the use ofdeadly force.” TEX. PENAL CODE § 9.04.

N. Criminal Liability for Reckless Injury or Death of Innocent Third Person

! If an actor recklessly injures or kills an innocent third person while justifiably usingforce or the threat of force against another, the person does NOT have a justificationdefense for the reckless injury or killing of the innocent third person. See TEX. PENAL

CODE § 9.05.

O. Admissibility of Prior Bad Acts / Bad Character of the Alleged Injured Party

! In a self-defense cases where there is some evidence of an act on the part of the allegedinjured party sufficient to raise the issue as to who was the “first aggressor,” evidenceof both the general reputation of the alleged injured party for being a violent ordangerous person, and prior specific acts of violent misconduct committed by thealleged party are admissible. See, e.g., Torres v. State, 71 S.W.3d 758, 760-61 (Tex.Crim. App. 2002); Mozon v. State, 991 S.W.2d 841, 845-46 (Tex. Crim. App. 1999);Gutierrez v. State, 764 S.W.2d 796, 798 (Tex. Crim. App. 1989); Thompson v. State,659 S.W.2d 649, 653-54 (Tex. Crim. App. 1983);Navarro v. State, 639 S.W.2d 945, 946(Tex. Crim. App. 1982); Dempsey v. State, 266 S.W.2d 875, 877-78, 159 Tex. Crim.602 (Tex. Crim. App. 1954). This portion of the so-called Dempsey rule was codifiedin Rule 404(a)(2) of the Rules of Evidence. See Mozon, 991 S.W.2d at 845-46; Fry v.State, 915 S.W.2d 554, 560 (Tex. App.—Houston[14th Dist.] 1995, no pet.);Carrasquillo v. State, 742 S.W.2d 104, 110 (Tex. App.—Fort Worth 1987, no pet.). Rule 404(a)(2) provides “evidence of a pertinent trait of character of the victim of thecrime” is admissible. See TEX. R. EVID. 404(a)(2). In this situation, the alleged injured


party’s character as a violent and aggressive person is a “pertinent trait” as itdemonstrates he was the first aggressor. Because the alleged injured party’s violent andaggressive character is admissible under Rule 404(a)(2), it may be proven by evidenceof either specific acts of misconduct, see TEX. R. EVID. 405(b), or reputation andopinion testimony, see TEX. R. EVID. 405(a). See also, e.g., Gonzales v. State, 838S.W.2d 848, 859 (Tex. App.—Houston[1st Dist.] 1992), pet. dism’d, improvidentlygranted, 864 S.W.2d 522 (Tex. Crim. App. 1993). In such a situation, the evidence isadmissible regardless of whether the defendant knew about it at the time of the allegedoffense in question. See, e.g., Thompson, 659 S.W.2d at 654.

! Evidence of the alleged injured party’s bad acts and bad character is also admissible asit is probative of the reasonableness of a defendant’s belief he had to defend himself,assuming, of course, the defendant knew about the bad acts and bad character. See, e.g.,Fry v. State, 915 S.W.2d 554, 560-61 (Tex. App.–Houston[1st Dist.] 1995, no pet.) (“ifthe evidence is offered to show the defendant killed the decedent because he reasonablybelieved his life to be in danger, the defendant must first establish that he was aware ofthe decedent’s violent character..... His knowledge of the deceased’s aggressive naturemay be from personal knowledge or from hearsay.” (citations omitted)).

IV. PROTECTION OF PROPERTY (TEX. PENAL CODE §§ 9.41-9.44).

A. Basic Principles

! “A person in lawful possession of land or tangible, movable property is justified in usingforce against another when and to the degree the actor reasonably believes the force isimmediately necessary to prevent or terminate the other’s trespass on the land orunlawful interference with the property.” TEX. PENAL CODE § 9.41(a).

! “A person unlawfully dispossessed of land or tangible, movable property by another isjustified in using force against the other when and to the degree the actor reasonablybelieves the force is immediately necessary to reenter the land or recover the propertyif the actor uses the force immediately or in fresh pursuit after the dispossession AND: (1) the actor reasonably believes the other had no claim of right when he dispossessedthe actor; OR (2) the other accomplished the dispossession by using force, threat, orfraud against the actor.” TEX. PENAL CODE § 9.41(b).

! “A person is justified in using deadly force against another to protect land or tangible,movable property:

(1) if he would be justified in using force against the other under Section 9.41;AND


(2) when and to the degree he reasonably believes the deadly force is immediatelynecessary:

(A) to prevent the other’s imminent commission of arson, burglary, robbery,aggravated robbery, theft during the nighttime, or criminal mischief duringthe nighttime; OR

(B) to prevent the other who is fleeing immediately after committingburglary, robbery, aggravated robbery, or theft during the nighttime fromescaping with the property; AND

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means;OR

(B) the use of force other than deadly force to protect or recover the land orproperty would expose the actor or another to a substantial risk of death orserious bodily injury.”

TEX. PENAL CODE § 9.42.

! “A person is justified in using force or deadly force against another to protect land ortangible, movable property of a third person if, under the circumstances as he reasonablybelieves them to be, the actor would be justified under Section 9.41 or 9.42 in usingforce or deadly force to protect his own land or property AND:

(1) the actor reasonably believes the unlawful interference constitutes attemptedor consummated theft of or criminal mischief to the tangible, movable property;OR

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person's land or property; OR

(C) the third person whose land or property he uses force or deadly force toprotect is the actor’s spouse, parent, or child, resides with the actor, or isunder the actor’s care.”



B. Use of Device to Protect Property

! “The justification afforded by Sections 9.41 and 9.43 applies to the use of a device toprotect land or tangible, movable property if: (1) the device is not designed to cause,or known by the actor to create a substantial risk of causing, death or serious bodilyinjury; AND (2) use of the device is reasonable under all the circumstances as the actorreasonably believes them to be when he installs the device.” TEX. PENAL CODE § 9.44.

C. “Reasonable Belief”

! The same reasonable belief standard applies to self-defense and defense of property: “reasonable belief” is defined as “a belief that would be held by an ordinary prudentman in the same circumstances as the actor.” TEX. PENAL CODE § 1.07(a)(42) (emphasis added).

D. Use of Confinement Instead of Force

! Generally speaking, a person may use confinement if the use of force would be justifiedunder the same circumstances so long has he “takes reasonable measures to terminatethe confinement as soon as he knows he safely can....” See TEX. PENAL CODE § 9.03.

E. Use of the Threat of Force Instead of Force

! The “threat of force is justified when the use of force is justified....” TEX. PENAL CODE

§ 9.04. Importantly, “a threat to cause death or serious bodily injury by the productionof a weapon or otherwise, as long as the actor’s purpose is limited to creating anapprehension that he will use deadly force if necessary, does not constitute the use ofdeadly force.” TEX. PENAL CODE § 9.04.

! “According to the plain language of the statute, Section 9.04 is not a separate statutorydefense; rather, it is incorporated into the law of self defense.” Gamino v. State, 537S.W.3d 507, 510 (Tex. Crim. App. 2017). Thus, in a case where a defendant is accusedof aggravated assault with a deadly weapon for threatening someone with a gun, if theevidence presented at trial triggers the application of Section 9.04, the defendant isentitled to an instruction on, non-deadly force self defense under Section 9.31, ratherthan deadly force self defense under Section 9.32. See id. at 510-11.


F. Criminal Liability for Reckless Injury or Death of Innocent Third Person

! If an actor recklessly injures or kills an innocent third person while justifiably usingforce or the threat of force against another, the person does NOT have a justificationdefense for the reckless injury or killing of the innocent third person. See TEX. PENAL

CODE § 9.05.

V. NECESSITY (TEX. PENAL CODE § 9.22)

A. Basic Principles

! “Conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary to avoidimminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according toordinary standards of reasonableness, the harm sought to be prevented by the lawproscribing the conduct; AND

(3) a legislative purpose to exclude the justification claimed for the conduct does nototherwise plainly appear.”


B. “Reasonable Belief”

! The same reasonable belief standard applies to self-defense and necessity: “reasonablebelief” is defined as “a belief that would be held by an ordinary prudent man in the samecircumstances as the actor.” TEX. PENAL CODE § 1.07(a)(42) (emphasis added).

! “While the availability of legal alternatives may be relevant to the reasonableness of anactor’s conduct, the unavailability of alternative legal courses of conduct is not arequirement of the defense of necessity.” Pennington v. State, 54 S.W.3d 852, 859 (Tex.App.–Fort Worth 2001, pet. ref’d) (emphasis added).

C. “Imminent Harm”

! “The first prong of the necessity defense requires affirmative evidence of imminentharm. Evidence of a generalized fear of harm is not sufficient to raise the issue ofimminent harm.” Brazelton v. State, 947 S.W.2d 644, 648 (Tex. App.–Fort Worth 1997,no pet.) (emphasis added).


D. Provoking the Difficulty

! There are several cases indicating a person who creates a situation in which it becomesnecessary to commit a criminal offense is not entitled to a jury instruction on the defenseof necessity. See, e.g., Shafer v. State, 919 S.W.2d 885, 887 (Tex. App.–Fort Worth1996, pet. ref’d) (“person who is responsible for having placed himself in the positionfrom which he attempts to extricate himself by committing a criminal offense is notentitled to a charge authorizing his acquittal of that offense based upon necessity”).

! Given nothing in section 9.22 specifically creates a provoking the difficulty exclusionto necessity, a strong argument can be made under the reasoning of the Giesberg lineof cases and Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), there is no suchexclusion. See, e.g., Ray v. State, 419 S.W.3d 467, 468–69 (Tex. App.–Waco 2013, pet.ref’d) (holding that, since the legislature has not included a provocation exception in thenecessity statute, there is no such exception).

E. Application to Exception to Self-Defense / Defense of Third Person

! Arguably, if a defendant “reasonably believed that it was immediately necessary toavoid imminent harm” to illegally carry a weapon and “the desirability and urgency ofavoiding the harm clearly outweigh, according to ordinary standards of reasonableness,the harm sought to be prevented by the law proscribing the conduct....,” he would beentitled to an instruction on the defense of necessity as it applies to the limitation onself-defense for seeking an explanation of one’s differences with another while illegallycarrying a weapon. See TEX. PENAL CODE § 9.31(b)(5).

F. Application Concurrent with Self-Defense / Defense of Third Person

! “The plain language codifying the necessity defense evinces a legislative intent that thedefense apply to all offenses unless the legislature has specifically excluded it fromthem.” Spakes v. State, 913 S.W.2d 597, 598 (Tex. Crim. App. 1996) (per curiam). Accordingly, unless the penal statute at issue specifically indicates otherwise, thenecessity defense can apply to a situation that would be covered by self-defense but foran applicable exception to self-defense, such as unauthorized use of force to resistsearch or arrest. See Bowen v. State, 162 S.W.3d 226, 229-30 (Tex. Crim. App. 2005).

! After Bowen, a defendant is most likely entitled to instructions on both self-defense andnecessity. See, e.g., Fox v. State, No. 13-03-230-CR, slip op., 2006 WL 2521622 (Tex.App.–Corpus Christi August 31, 2006, pet. ref’d) (not designated for pub.) (reversingconviction where trial court refused instruction on necessity defense because self-defense was submitted in charge). See also, Bowen, 162 S.W.3d at 230 (Keller, J.,dissenting because “entitlement to an instruction for certain defenses such as self-


defense and defense of a third person would always also entail entitlement to aninstruction on the defense of necessity. Submitting wholly redundant defenses would notaid the truth-finding function of the trial and risks confusing the jury.” (emphasis inoriginal)). But see, contra, Searcy v. State, 231 S.W.3d 539, 542-44 (Tex.App.–Texarkana 2007, pet. ref’d) (affirming conviction where trial court refused to givenecessity instruction in addition to self-defense instruction because “inclusion of thejustification of necessity, on facts such as these which clearly implicate the applicationof self-defense using deadly force, would undermine the Legislature’s purpose inimposing the duty to retreat”).

VI. MISTAKE OF FACT (TEX. PENAL CODE § 8.02)

A. Basic Principles

! “It is a defense to prosecution that the actor through mistake formed a reasonable beliefabout a matter of fact if his mistaken belief negated the kind of culpability required forcommission of the offense.” TEX. PENAL CODE § 8.02(a) (emphasis added).

! “Although an actor’s mistake of fact may constitute a defense to the offense charged,he may nevertheless be convicted of any lesser included offense of which he would beguilty if the fact were as he believed.” TEX. PENAL CODE § 8.02(b).

B. “Reasonable Belief”

! The same reasonable belief standard applies to self-defense and mistake of fact: “reasonable belief” is defined as “a belief that would be held by an ordinary prudentman in the same circumstances as the actor.” TEX. PENAL CODE § 1.07(a)(42) (emphasis added).

! The issue of reasonableness is left for the jury and should not be considered by the trialcourt in deciding whether or not to give a mistake of fact instruction. See Granger v.State, 3 S.W.3d 36, 38-39 (Tex. Crim. App. 1999).

C. The Mistake MUST Go to the Culpable Mental State

! “It is a defense to prosecution that the actor through mistake formed a reasonable beliefabout a matter of fact if his mistaken belief negated the kind of culpability required forcommission of the offense.” TEX. PENAL CODE § 8.02(a) (emphasis added). Therefore,if the mistaken belief effected something other than the culpable mental state, thedefense does not apply. See, e.g., Maupin v. State, 930 S.W.2d 267, 268 (Tex.App.–Fort Worth 1996, pet. ref’d) (holding mistaken belief alleged injured parties wereattempting to burglarize his house does not raise mistake of fact defense to intentionally


or knowingly causing bodily injury to the alleged injured parties because “the intent tocause the result, the bodily injury,... is the gravamen of the offense” and evidence of themistaken belief does not indicate that defendant was “mistaken about whether the forcehe used would cause bodily injury”).

! Examples of situations in which the mistake of fact does apply are: Woodfox v. State,742 S.W.2d 408, (Tex. Crim. App. 1987) (defendant in unauthorized use of motorvehicle case entitled to mistake of fact instruction concerning his mistaken belief heborrowed car from rightful owner); Sands v. State, 64 S.W.3d 488, 494-96 (Tex.App.–Texarkana 2001, no pet.) (defendant in possession case entitled to mistake of factinstruction concerning his mistaken belief the syringe he received from a third personcontained vitamin B12 rather than methamphetamine); and, Anderson v. State, 11S.W.3d 369, 372-73 (Tex. App.–Houston[1st Dist.] 2000, pet. ref’d) (defendant inaggravated assault of public servant entitled to mistake of fact instruction concerninghis mistaken belief the plain-clothes policeman he was fighting with was not, in fact, apeace officer).

D. Exception if Fact Was “Readily Discernable By a Simple Empirical Method ofInvestigation”

! “Where the alleged mistaken fact is a matter that is readily discernable by a simpleempirical method of investigation that is universally accepted, a mistake of fact defenseis not raised by the accused’s failure to properly utilize that method.” King v. State, 919S.W.2d 819, 822-23 (Tex. App.–El Paso 1996, no pet.) (citing Miller v. State, 666S.W.2d 564, 565-66 (Tex. App.–Houston[14th Dist.] 1984, no pet.).

! There is a strong argument to be made a defendant is entitled to a mistake of factinstruction regardless of this rule since the issue of reasonableness is left for the jury andshould not be considered by the trial court in deciding whether or not to give a mistakeof fact instruction. See Granger v. State, 3 S.W.3d 36, 38-39 (Tex. Crim. App. 1999). Further, since there is no explicit statutory exception on these grounds, there is a strongargument to be made under under the reasoning of the Giesberg line of cases andWalters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), there is no such exclusion.

E. Application to Exception to Self-Defense / Defense of Third Person

! “[M]istake of fact which would establish an affirmative defense to an offense, ratherthan negating an element of the offense, does not raise a mistake of fact defense.” SeeBryan v. State, 814 S.W.2d 482, 483 (Tex. App.–Waco 1991, pet. ref’d) (emphasisadded) (holding defendant was not entitled to mistake of fact instruction concerningmistaken belief alleged injured party was promiscuous which related to promiscuityaffirmative defense to sexual assault). See also, e.g., Lugo v. State, 923 S.W.2d 598, 601


(Tex. App.–Houston[1st Dist.] 1995, pet ref’d) (citing Bryan) (holding defendant wasnot entitled to mistake of fact instruction in kidnaping case concerning mistaken beliefhe was a “parent” or “relative” of the child which would have entitled him to anaffirmative defense).

! There is an open issue whether the defense of mistake of fact, should be applied to adefendant’s knowledge he is being arrested by a peace officer if this exception to self-defense is raised by the evidence. See TEX. PENAL CODE § 9.31(b)(2). Arguably, adefendant’s asserted mistake of fact he did not know the person who was trying tosearch or arrest him was a peace officer, “negate[s] the kind of culpability required” forconviction and the defense is entitled to a mistake of fact instruction applies to thelimitation on self-defense.

31 Annual Rusty Duncan Advanced Criminal Law Course · 31st Annual Rusty Duncan Advanced Criminal...

Documents

Transcript of 31 Annual Rusty Duncan Advanced Criminal Law Course · 31st Annual Rusty Duncan Advanced Criminal...