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My AccountChapter 9
- 9.1 Necessity Generally—Need to “Admit” Offense
- 9.2 Instruction—Necessity
- 9.3 Self-Defense Generally
- 9.4 Pre-1974 Penal Code Self-Defense Law and Jury Instructions
- 9.5 Role of “Provocation” in Self-Defense Instructions
- 9.6 Statutory Presumption
- 9.7 Retreat
- 9.8 Converse Instructions on Self-Defense
- 9.9 Multiple-Assailants Instruction Generally
- 9.10 Instruction—Nondeadly Force in Self-Defense
- 9.11 Nondeadly Force in Self-Defense with Consent Issue
- 9.12 Instruction—Nondeadly Force and Consent Issue
- 9.13 Nondeadly Force in Self-Defense with “Provoking the Difficulty” Issue
- 9.14 When Instruction on “Provoking the Difficulty” Is Proper
- 9.15 Defining Provocation
- 9.16 Abandonment of Provoking Attack
- 9.17 “Right to Arm” and “Provoking the Difficulty”
- 9.18 Defendant’s Verbal Provocation as Insufficient Justification
- 9.19 Instruction—Nondeadly Force and “Provoking the Difficulty” Issue
- 9.20 Instruction—Nondeadly Force—Defendant Arming Himself
- 9.21 Instruction—Threat of Deadly Force in Self-Defense
- 9.22 Deadly Force in Self-Defense Generally
- 9.23 Instruction—Self-Defense Involving Deadly Force to Protect against Deadly Force by Another
- 9.24 Instruction—Self-Defense Involving Deadly Force
- 9.25 Instruction—Self-Defense Involving Deadly Force—Defendant Arming Himself
- 9.26 Deadly Force to Prevent Felony Generally
- 9.27 Instruction—Deadly Force to Prevent Felony
- 9.28 Instruction—Deadly Force to Prevent Felony—Alternative Approach
- 9.29 Self-Defense against Action by Peace Officer Generally
- 9.30 Instruction—Self-Defense against Action by Peace Officer—No Allegation of Excessive Force
- 9.31 Instruction—Self-Defense against Action by Peace Officer—Allegation of Excessive Force
- 9.32 Defense of Others Generally
- 9.33 Instruction—Nondeadly Force in Defense of Another
- 9.34 Defense of Property Generally
- 9.35 Defense of “Habitation” or “Dwelling”
- 9.36 Nondeadly Force in Defense of One’s Own Personal Property—Property in One’s Possession and Recovering Property
- 9.37 Instruction—Nondeadly Force in Defense of One’s Own Personal Property—Preventing Interference with Property in One’s Possession
- 9.38 Instruction—Nondeadly Force in Defense of One’s Own Personal Property—Recovering Property
- 9.39 Nondeadly Force in Defense of Land Generally
- 9.40 Instruction—Nondeadly Force in Defense of Land
- 9.41 Instruction—Deadly Force in Defense of One’s Own Personal Property
- 9.42 Deadly Force in Defense of Land Generally
- 9.43 Instruction—Deadly Force in Defense of Land
- 9.44 Instruction—Nondeadly Force in Defense of Third Person’s Personal Property
- 9.45 Reasonable Discipline Defense Generally
- 9.46 Instruction—Reasonable Discipline Defense
- 9.47 Educator-Student Defense Generally
- 9.48 Instruction—Educator-Student Defense
- 9.49 Guardian-Incompetent Defense Generally
- 9.50 Instruction—Guardian-Incompetent Defense
Comment
What traditionally has been called mutual combat is now embodied in Tex. Penal Code § 9.31(b)(3): “The use of force against another is not justified . . . if the actor consented to the exact force used or attempted by the other . . . .”
This continues a version of the substantive law announced in 1875 by the Texas Supreme Court:
If the defendant voluntarily engages in a combat, knowing that it will or may result in death, or some serious bodily injury which may probably produce the death either of his adversary or himself, or by his own wrongful act brings about the necessity of taking the life of another to prevent being himself killed, he cannot say that such killing was in his necessary self-defense.
Gilleland v. State, 44 Tex. 356, 359 (1875).
Apparently this aspect of self-defense turns on the actual fact—whether the defendant in actual fact consented to the exact force which, under the defense theory, entitled the defendant to engage in the conduct constituting the charged offense. Reasonable beliefs do not control. Thus if the defendant in fact consented, he has no defense based on evidence that he believed—even reasonably—that he had not consented to what he believed was the degree of force being used against him.
This provision has almost never been discussed in appellate litigation. One of the few exceptions, Padilla v. State, No. 03-07-00513-CR, 2008 WL 5423139 (Tex. App.—Austin Dec. 31, 2008, no pet.) (not designated for publication), illustrates the application of the provision. The question in Padilla was whether one Orive had a right to defend himself against force being used by the complainant, Lopez. Orive had agreed to fight Lopez. “It was agreed that this would be a ‘clean fight’ between the two using no weapons.” Padilla, 2008 WL 5423139, at *1. During the fight, Lopez forced Orive to his knees and placed him in a head lock or choke hold. Testimony indicated that Orive’s face was turning purple and that he appeared to have trouble breathing. Orive himself testified, “I couldn’t talk, I couldn’t breathe, I couldn’t do anything. I was afraid for my life.” Padilla, 2008 WL 5423139, at *1. Orive obtained a gun and shot Lopez.
Holding that the jury could have rejected the defense contention that Orive had a right to shoot Lopez in self-defense, the court explained—
The use of force against another is not justified if the actor consented to the exact force used or attempted by the other. Tex. Penal Code Ann. § 9.31(b)(3) (West Supp. 2008). Appellant argues that although Orive agreed to fight Lopez, he did not agree to Lopez’s use of a choke hold that left Orive unable to speak or breathe. The evidence was undisputed, however, that the parties agreed only that no weapons would be used in the fight. There is no basis in the evidence for appellant’s assertion that Lopez and Orive had agreed that the fight would be over, or would be temporarily suspended, if one of the fighters fell to the ground. It was neither manifestly unjust nor against the great weight of the available evidence for the jury to conclude that Orive, by agreeing to fight Lopez, consented to the exact force used by Lopez in the fight.
Padilla, 2008 WL 5423139, at *2. This provision in section 9.31(b)(3) should not be confused with the defense of consent or mutual combat set forth in section 22.06 of the Penal Code.