Comment

Under Texas Penal Code section 9.32, self-defense is applicable to a defendant whose actions consist of the use of deadly force if both (1) the person “would be justified in using force against the other under Section 9.31”; and (2) “when and to the degree the actor reasonably believes the deadly force is immediately necessary . . . to prevent another’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.” Tex. Penal Code § 9.32(a).

As generally applied, this provision functions as a defense based on a desire to prevent commission of one or more of the specified felonies. It is widely regarded as containing no requirement that the defendant fear harm to himself, although it is often applied in situations in which the facts show such harm.

Thus it serves what some jurisdictions make the separate defense of prevention of crime. Section 3.07 of the Model Penal Code, titled “Use of Force in Law Enforcement,” permits the use of deadly force “when the actor believes that such force is immediately necessary to prevent such other person from . . . committing or consummating the commission of a crime involving or threatening bodily injury, damage to or loss of property or a breach of the peace.” Model Penal Code § 3.07(5)(a) (Proposed Official Draft 1962). It adds that deadly force is not permitted unless—

Model Penal Code § 3.07(5)(a). The State Bar Committee’s 1970 proposed revision contained such a provision, which was not, however, enacted. Instead, a modified version was incorporated into the right to use deadly force in self-defense by inserting it in Texas Penal Code section 9.32(a)(2)(B).

The Committee considered at length how to appropriately phrase an instruction on this matter. Section 9.32(a)(2)(B)’s literal terms require that the defendant have been justified “in using force against the other under Section 9.31.” Section 9.31(a) requires, among other matters, that the defendant reasonably believe the force used is necessary “to protect the actor.” Thus section 9.32(a)(2)(B) can be read as requiring that the defendant reasonably fear harm to himself from the felony he claims to have acted to prevent.

In practice, the requirement that the defendant have been justified in using force against the complainant “under Section 9.31” is often included (in some form) in the abstract statement of the applicable law but omitted from the application portion of the instructions. Therefore, the application portion sets out a defense that basically requires only a reasonable belief on the part of the defendant that the deadly force used was necessary to prevent the imminent commission of one of the specified felonies.

The 1975 Texas Criminal Pattern Jury Charges, however, would have juries acquit in these situations if the proof failed to show “that [the defendant] did not reasonably believe that the use of force and the degree of force used were immediately necessary to protect [the defendant] against [the victim’s] use or attempted use of deadly force.” Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges 49 n.10 (1975).

The Committee concluded, although not without concern, that the legislature intended to create a defense focusing on the defendant’s perception that a felony needed to be prevented, whether or not that threatened felony posed an immediate risk of harm to the defendant himself. This has been widespread and unchallenged practice. The instruction at CPJC 9.27 is drafted on the assumption that this was the legislative intent.

The instruction does not explicitly require the jury to address whether the defendant was justified in using force against the victim “under Section 9.31,” as is technically required by section 9.32(a)(1). In the Committee’s view, the legislature regarded the imminently threatened felony by the victim of the defendant’s use of deadly force as necessarily sufficient to meet this requirement. Thus juries need not address on a case-by-case basis whether, on the specific facts, a defendant otherwise within the defense also reasonably believed he himself was threatened by the situation.

The Committee offers the instruction at CPJC 9.28 as an alternative approach. This alternative instruction does require that the jury find that the defendant believed that the force used was necessary both to prevent a felony and protect himself from harm.

In the interest of minimizing confusion, the Committee recommended that the law contained in section 9.32(a)(2)(B) be labeled “deadly force to prevent a felony” rather than “self-defense.”