Comment

Under Texas Penal Code section 9.32(a) (“Deadly Force in Defense of Person”), self-defense is applicable to a defendant whose actions consisted of the use of deadly force if the requirements of section 9.31 are met and the defendant reasonably believed that deadly force was immediately necessary to either (1) protect the defendant against another’s use or attempted use of unlawful deadly force or (2) prevent another’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Tex. Penal Code § 9.32(a).

Thus, in a prosecution in which the use of deadly force is proved, a defendant’s burden of raising the issue so as to entitle the defendant to a jury instruction is somewhat increased.

The jury instruction must also tell the jury of additional ways in which the state can meet its burden of proof rendering the defense inapplicable.

The Committee decided that, for clarity, section 9.32(a)(2)(B), focusing on prevention of specified felonies, should have a separate instruction distinguishable from self-defense. See CPJC 9.28 for an instruction based on section 9.32(a)(2)(B).

The instruction at CPJC 9.23 is for use when the facts raise issues concerning failure to retreat or facts that would remove the presumption of reasonableness. Cf. Reyna v. State, 597 S.W.3d 604, 606–07 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (defendant was not entitled to have jury instructed in accordance with presumption because uncontradicted evidence showed that he was in possession of cocaine and thus engaged in criminal conduct at the time of the charged murder). A portion of this instruction has been cited with approval by the court of criminal appeals. Villarreal v. State, 453 S.W.3d 429, 435 (Tex. Crim. App. 2015). The instruction at CPJC 9.24 is for use when the facts raise only the issue of use of deadly force in self-defense.

It should be noted that section 9.04 provides that a person’s threat to cause death or serious bodily injury does not constitute the use of deadly force if the person’s purpose was limited to creating an apprehension that he will use deadly force if necessary. Section 9.04 does not create a separate statutory defense but should instead be incorporated into the law of self-defense. Gamino v. State, 537 S.W.3d 507, 511 (Tex. Crim. App. 2017). In a case in which a defendant is charged with using a deadly weapon, but the evidence presented at trial triggers the application of section 9.04, the defendant would be entitled to an instruction on nondeadly force self-defense under section 9.31, rather than deadly force self-defense under section 9.32. Gamino, 537 S.W.3d at 510–11. See also Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (holding that defendant was entitled to instruction under section 9.04 in addition to instruction on self-defense). An instruction has been included at CPJC 9.21 to give effect to section 9.04 if it is raised by the evidence.

Section 9.31(b)(5) provides that the use of force against another is not justified—and self-defense, therefore, does not apply—if (1) the defendant sought an explanation from or discussion with the other person concerning the defendant’s differences with the other person and (2) the defendant was carrying, possessing, or transporting a weapon in violation of section 46.02 or 46.05 of the Penal Code. Because the carrying or possession of a handgun can often implicate the use of deadly force, the instruction at CPJC 9.25 is included when that issue is raised.

In addition to the provision in section 46.15(b)(6), dealing with carrying a handgun license, there are other provisions in section 46.15 that would render section 46.02 inapplicable. If the facts raise one of section 46.15’s less common provisions, that provision might need to be made a part of the jury charge as well. Section 9.31(b)(5) does not mention section 46.035 or any other provisions of chapter 46, so they have not been included in the instruction at CPJC 9.25.