Chapter 9
Justification Defenses
9.10 Instruction—Nondeadly Force in Self-Defense
[Insert instructions for underlying offense.]
If you all agree the state has proved, beyond a reasonable doubt, each of the [number] elements listed above, you must next consider whether the defendant is not guilty because his use of force was justified by self-defense.
Self-Defense
A person’s use of force against another that constitutes the crime of [offense] is justified by self-defense when the person reasonably believed the degree of force used was immediately necessary to protect the person against the other’s use [or attempted use] of unlawful force.
Self-defense does not cover conduct in response to verbal provocation alone. The defendant must have reasonably believed the other person had done more than verbally provoke the defendant.
[Include the following if the facts raise the issue of multiple assailants.]
If a person reasonably believes he is threatened with the use or attempted use of unlawful force against him by a group of two or more people, he may use force against any or all of them.
Burden of Proof
The defendant is not required to prove self-defense. Rather, the state must prove, beyond a reasonable doubt, that self-defense does not apply to the defendant’s conduct.
Definition
Reasonable Belief
“Reasonable belief” means a belief that an ordinary and prudent person would have held in the same circumstances as the defendant.
Failure to Retreat
A person who has a right to be present at a location where the person uses force against another is not required to retreat before using force in self-defense if both—
- the person with the right to be present did not provoke the person against whom the force is used; and
- the person was not engaged in criminal activity at the time the force is used.
Therefore, in deciding whether the defendant reasonably believed his use of force was necessary, you must not consider any failure of the defendant to retreat that might be shown by the evidence if you find both—
-
the defendant did not provoke [name], the person against whom the defendant used force; and
- the defendant was not engaged in criminal activity at the time he used the force.
Presumption
Under certain circumstances, the law creates a presumption that the defendant’s belief—that the force he used was immediately necessary—was reasonable. A presumption is a conclusion the law requires you to reach if certain other facts exist.
Therefore, you must find the defendant’s belief—that the force he used was immediately necessary—was reasonable unless you find the state has proved, beyond a reasonable doubt, at least one of the following elements. The elements are that—
[Include only those elements supported by the evidence.]
- the defendant neither knew nor had reason to believe
that [name]—
- unlawfully and with force entered, or was attempting to enter unlawfully and with force, the defendant’s occupied habitation, vehicle, or place of business or employment; or
- unlawfully and with force removed, or was attempting to remove unlawfully and with force, the defendant from the defendant’s habitation, vehicle, or place of business or employment; or
- was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery; or
- the defendant provoked [name]; or
- the defendant, at the time the force was used, was engaged in criminal activity other than a class C misdemeanor that is a violation of a law or ordinance regulating traffic.
If you find the state has proved element 1, 2, or 3 listed above, the presumption does not apply and you are not required to find that the defendant’s belief was reasonable.
Whether or not the presumption applies, the state must prove, beyond a reasonable doubt, that self-defense does not apply to this case.
Application of Law to Facts
[Use the following if instructions cover a single assailant.]
To decide the issue of self-defense, you must determine whether the state has proved, beyond a reasonable doubt, that either—
- the defendant did not believe his use of force was immediately necessary to protect himself against [name]’s use [or attempted use] of unlawful force; or
- the defendant believed his use of force was immediately necessary to protect himself, but the defendant’s belief was not reasonable.
[Use the following if instructions include coverage of multiple assailants.]
To decide the issue of self-defense, you must determine whether the state has proved, beyond a reasonable doubt, that either—
- the defendant did not believe his use of force was immediately necessary to protect himself against the use [or attempted use] of unlawful force by [name] or the group [name] was with; or
- the defendant believed his use of force was immediately necessary to protect himself, but the defendant’s belief was not reasonable.
[Continue with the following.]
You must all agree that the state has proved, beyond a reasonable doubt, either element 1 or 2 listed above. You need not agree on which of these elements the state has proved.
If you find that the state has failed to prove, beyond a reasonable doubt, either element 1 or 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of [insert specific offense], and you all agree the state has proved, beyond a reasonable doubt, either element 1 or 2 listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Instructions on “Apparent Danger.” In Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), the instructions included a portion covering what has traditionally been termed “apparent danger”:
It is not necessary that there be an actual attack or attempted attack, a person is justified in using force against another in self-defense from apparent danger to the same extent as he would be had the danger been real, provided [that] he acted upon a reasonable belief that the other person was using or attempting to use unlawful force . . . .
Walters, 247 S.W.3d at 213 n.37. The court noted that the validity of this portion of the instruction was not before it. Nevertheless, it continued—
In [Jones v. State, 544 S.W.2d 139 (Tex. Crim. App. 1976),] we stated,
Where the evidence raises the 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 extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time.
[544 S.W.2d at 142.] Three years later, in Valentine v. State, 587 S.W.2d 399 (Tex. Crim. App. 1979), we held that an additional charge on apparent danger was not required, when, as part of its charge on the law of self-defense, the court instructed the jury on the statutory definition of “reasonable belief.” Id. at 401. This had not happened in Jones. Id. In Valentine, we stated, “By defining the term ‘reasonable belief’ as it did, the court instructed the jury that a reasonable apprehension of danger, whether it be actual or apparent, is all that is required before one is entitled to exercise the right of self-defense against his adversary.” Id. And we observed that “the court’s charge is in accordance with Sections 1.07(31) [now section 1.07(42)], 9.31, and 9.32 of the Penal Code, all of which adequately presented the appellant’s defensive theory and protected her rights.” Id.
Walters, 247 S.W.3d at 213 n.37. Courts have continued to follow this construction of Valentine. See Fish v. State, 609 S.W.3d 170, 180 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d); Buford v. State, 606 S.W.3d 363, 371 (Tex. App.—Houston [1st Dist.] 2020, no pet.).
Walters’s discussion makes clear that the court of criminal appeals would hold an apparent-danger instruction unnecessary (and perhaps improper) when the instructions make clear the defense turns on the defendant’s reasonable belief. Consequently, the Committee concluded no such instruction should be mandated. Cf. Dugar v. State, 464 S.W.3d 811, 818 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (not necessarily endorsing instruction but reaffirming previous case law that had stated that a person has the right to defend himself from apparent danger to the same extent as he would if the danger were real).
Instruction to Consider All Facts and Circumstances. Many Texas jury instructions include, often after what the discussion above calls an “apparent danger” instruction, a paragraph such as the following:
In determining the existence of real or apparent danger, you should consider all the facts and circumstances in the case in evidence before you, together with all relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the occurrence in question, and in considering such circumstances, you should place yourselves in the defendant’s position at that time and view them from his standpoint alone.
One court held that a trial judge did not err in refusing to add such a paragraph to an instruction that apparently tracked the language of the current statutes without what the section above calls the apparent-danger instruction. Bundy v. State, 280 S.W.3d 425, 429–31 (Tex. App.—Fort Worth 2009, pet. ref’d). Bundy treated the request for this paragraph as a request for an apparent-danger instruction and held it unnecessary.
The paragraph in fact is not a necessary part of an apparent-danger instruction. In part, it tells the jury to consider the situation from the defendant’s perspective. This is arguably also done by the definition of reasonable belief. In part, it tells the jury to consider all facts and circumstances bearing on the defendant’s state of mind. This may be unnecessary because it is obvious and also because it possibly may be a comment on the evidence.
Instructions without an apparent-danger provision could include a paragraph along the traditional lines but modified to delete any reference to apparent danger. Such an instruction might be along the following lines:
In determining whether the defendant reasonably believed he was being attacked with unlawful force, you should consider all the facts and circumstances in the case in evidence before you, together with all relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the occurrence in question, and in considering such circumstances, you should place yourselves in the defendant’s position at that time and view them from his standpoint alone.
The Committee concluded, however, that such a paragraph is unnecessary and potentially confusing. Therefore, the instruction does not include it.
Comment
The defense of self-defense is provided for in Tex. Penal Code § 9.31. The definition of “reasonable belief” is based on Tex. Penal Code § 1.07(a)(42).
Definition of “Unlawful Force.” The Committee considered recommending that unlawful force be defined based on section 1.07(48) of the Texas Penal Code. Such a definition might be as follows:
A person’s use or attempted use of force is unlawful if it is a crime or a civil tort or if it would be a crime or a civil tort except for a defense not amounting to justification or privilege.
It concluded, however, that such a definition would not be useful. See Marpoe v. State, No. 03-17-00748-CR, 2019 WL 5076506, at *10–11 (Tex. App.—Austin Oct. 10, 2019, no pet.) (mem. op.) (not designated for publication) (trial judge did not err in refusing to charge jurors on definition of “unlawful force”). Cf. Baker v. State, No. 07-19-00048-CR, 2020 WL 3154784, at *3–4 (Tex. App.—Amarillo June 12, 2020, pet. ref’d) (per curiam) (mem. op.) (not designated for publication) (in response to jury note, trial judge properly instructed jurors on defense of property in helping to assist jurors’ determination whether victim was using unlawful deadly force when defendant purported to act in self-defense). In charging on self-defense, a court should be cautious about using definitions from other parts of the law. See Clifton v. State, No. 09-19-00068-CR, 2020 WL 4494658, at *6 (Tex. App.—Beaumont Aug. 5, 2020, no pet.) (mem. op.) (not designated for publication) (in response to jury question, trial judge should not have defined “attempt” in context of self-defense charge by using definition of “attempt” from section 15.01 of Penal Code).