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My AccountChapter 8
- 8.1 Categorizing Defenses
- 8.2 Burdens of Proof and Production under Texas Penal Code Chapter 2
- 8.3 Explaining to Jury State’s Burden of Proof on Defenses
- 8.4 Nonstatutory Defensive Positions and Jury Instructions
- 8.5 Instructions on Inconsistent Defenses
- 8.6 “Confession and Avoidance”: Need to Admit Offense
- 8.7 Failure to Instruct on Defense Cannot Be “Fundamental” Error
- 8.8 Defendant’s Right to Have No Instruction on Defense
- 8.9 Relationship of Necessity to Other Defensive Positions
- 8.10 Insanity Generally
- 8.11 Consequences of Insanity Acquittal
- 8.12 Defining “Wrong”
- 8.13 Defining “Severe Mental Disease or Defect”
- 8.14 Instruction—Insanity
- 8.15 Diminished Capacity Generally
- 8.16 Basic Framework for Mistake of Fact under Texas Law
- 8.17 Pre-1974 Texas Mistake-of-Fact Law
- 8.18 Other Jurisdictions and Potential Constitutional Problem
- 8.19 Possible Alternative Approach—Two Mistake-of-Fact Defenses
- 8.20 Reasonableness of Mistake as Matter for Court Rather Than Jury
- 8.21 Committee’s Approach
- 8.22 Instruction—Mistake of Fact
- 8.23 Texas Penal Code Distinction between Mistakes of “Fact” and Mistakes of “Law”
- 8.24 Instruction—Mistake of Law
- 8.25 Voluntary Intoxication Generally
- 8.26 Instruction—Voluntary Intoxication
- 8.27 Involuntary Intoxication Generally
- 8.28 The Committee’s Approach to Involuntary Intoxication
- 8.29 Instruction—Involuntary Intoxication
- 8.30 General Law of Duress
- 8.31 Instruction—Duress (Felony)
- 8.32 Instruction—Duress (Misdemeanor)
- 8.33 Entrapment Generally
- 8.34 Status of “Informers”
- 8.35 Instruction—Entrapment
Comment
The court of criminal appeals appears to disavow a general rule that a right to an instruction on a defensive matter would be barred by that matter’s being inconsistent with the position taken on other defensive matters on which the jury will be instructed.
In Bowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005), the court explained:
We have recognized the independence of separate defenses by holding that a defendant is entitled to the submission of every defensive issue raised by the evidence, even if the defense may be inconsistent with other defenses. We reaffirm this principle by holding self-defense’s statutorily imposed restrictions do not foreclose necessity’s availability.
Bowen, 162 S.W.3d at 229–30 (footnote omitted).
Apparently, then, the fact that a defendant’s request for a jury instruction on a defensive matter is inconsistent with that defendant’s position on other parts of the jury instructions does not defeat the defendant’s right to the instruction. If the evidence raises several possible defenses, the trial court cannot require the defense to in some sense “elect” only one position on which the court will instruct the jury.