Comment

Texas self-defense law is embodied in Texas Penal Code sections 9.31 (covering nondeadly force) and 9.32 (covering deadly force). Self-defense is labeled a justification, but under section 9.02 such justifications are treated procedurally as defenses. Thus the procedural aspects of jury instructions for self-defense are addressed by section 2.03.

The basic standard for self-defense is set out in section 9.31(a): force used does not constitute a crime if the defendant reasonably believed the force used was immediately necessary to protect himself against another’s use or attempted use of unlawful force.

Exceptions to this defense are set out in section 9.31(b). Essentially, despite the general rule in section 9.31(a), a criminal defendant cannot rely on self-defense and has no defense in the following situations:

1. The force constituting the crime was used in response to verbal provocation alone (section 9.31(b)(1)).
2. The force constituting the crime was used to resist an arrest or search being made by a person the defendant knew was a peace officer (section 9.31(b)(2)).
3. The defendant consented to the exact force used or attempted by the injured party (section 9.31(b)(3)).
4. The defendant provoked the injured party’s attack on the defendant (section 9.31(b)(4)) (“provoking the difficulty”).
5. The defendant used the force while he was seeking an explanation from or discussion with the injured party concerning their differences and the defendant was committing a weapons offense at the time (section 9.31(b)(5)).

Section 9.31(b)(1) contains language referring to “verbal provocation.” As addressed in CPJC 9.5, the Committee had difficulty determining the actual significance of this language. As a practical matter, a defendant would never assert that he was responding to verbal provocation alone, so it is an exception that would typically never arise. If verbal provocation was all that the evidence showed, the defendant would not be entitled to an instruction on self-defense in the first place.

Section 9.31(b)(5) concerns the unlawful carrying of a weapon. As explained in CPJC 9.17, the Committee concluded that the section commonly arises in cases involving “provoking the difficulty,” section 9.31(b)(4).

This chapter contains instructions on the general rule and exception numbers three, four, and five, as the exceptions are listed above. It also includes instructions on the use of deadly force in self-defense and self-defense against actions by peace officers.

As always, and in particular in the case of self-defense, if the defense is supported by the evidence, then the defendant is entitled to an instruction on that defense, even if the evidence supporting the defense is weak or contradicted, and even if the trial court is of the opinion that the evidence is not credible. But the evidence must be such that it will support a rational jury finding as to each element of the defense. Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007). The court of criminal appeals has indicated in a harm analysis that a defendant is not entitled to submission of self-defense when there is no evidence from which to conclude that a defendant subjectively believed his use of force was justified. Lozano v. State, 636 S.W.3d 25, 33 (Tex. Crim. App. 2021), reh’g denied (Jan. 12, 2022). Self-defense’s requirement that “the actor reasonably believe[] the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force” includes both an objective and subjective component. Tex. Penal Code §§ 9.31(a), 9.32(a)(2). This means that a jury could reject self-defense either because the defendant “harbor[s] unreasonable beliefs that the use of deadly force was immediately necessary” or because “the defendant did not believe that he acted in self-defense.” Lozano, 636 S.W.3d at 33. Because there was no evidence from which the jury could infer that Lozano (who did not testify or make an out-of-court statement) acted as he did because he needed to defend himself as opposed to because he overreacted or intentionally escalated the situation, deadly force self-defense was not raised by the evidence. Lozano, 636 S.W.3d at 34. As noted more fully in CPJC 8.2, the evidence in support of a claim of self-defense does not have to come from the defendant or his witnesses. Nevertheless, when the evidence, viewed in the light most favorable to the defendant, establishes as a matter of law that force was not justified in self-defense, no self-defense instruction is required. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).

Need for Instruction and Application Units. The court of criminal appeals has explained:

Ex parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004) (footnotes omitted).

Since self-defense is a defensive matter, a trial judge has no obligation to instruct on the matter in the absence of a request by the defendant. Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998). Cf. Bedolla v. State, 442 S.W.3d 313, 317 (Tex. Crim. App. 2014) (defendant preserved error in requesting charge on self-defense, even though request was general). Nevertheless, even in the absence of a request for such an instruction, a trial judge may wish to charge the jury on self-defense when that issue has clearly been raised by the evidence. This could be necessary to protect the defendant’s right to a fair trial and to the effective assistance of counsel.

If a trial judge charges the jury on self-defense, the judge must do so correctly. Barrera, 982 S.W.2d at 416. For example, if the jury instruction includes the abstract law on self-defense, it should also include an application of that abstract statement to the facts of the case. A judge who without a defense request includes self-defense in the instruction then has a duty to apply that law to the facts of the case. Barrera, 982 S.W.2d at 416. Unobjected-to failure to apply self-defense law can be error cognizable on appeal despite the lack of a defense objection at trial.

When charging the jury on self-defense, it is important to remember that the law of self-defense should also be applied to any lesser-included offenses to which self-defense would apply, as well as the charged offense. Mendez v. State, 545 S.W.3d 548 (Tex. Crim. App. 2018). This is true even in cases in which the defendant has not requested a charge on self-defense but the trial judge has nevertheless charged the jury on self-defense. See Mendez, 545 S.W.3d 548.

Confession and Avoidance.

Rodriguez v. State, 629 S.W.3d 229, 231 (Tex. Crim. App. 2021) (citations omitted). Despite what its name suggests, “confession and avoidance” can be satisfied without a defendant’s express admission to the elements of the offense and even alongside resolute denial of those elements if the defensive evidence and inferences therefrom would be legally sufficient to convict the defendant of the offense. Rodriguez, 629 S.W.3d at 235. “[A] defendant’s testimony explicitly denying a culpable mental state or asserting accident does not automatically foreclose a justification defense if his testimony may otherwise imply a culpable mental state.” Rodriguez, 629 S.W.3d at 232. While couched in terms of what the defendant’s testimony showed (because those were the facts of that case), there might be other sources of the legally sufficient evidence. In another confession-and-avoidance case involving necessity, the court explained that confession-and-avoidance’s “admission requirement” trumps the general rule that evidence raising a defense can come from any source, including the state, but left open whether it required a defendant’s own admission. Juarez v. State, 308 S.W.3d 398, 404–06 (Tex. Crim. App. 2010) (contrasting Tex. Penal Code § 2.03(c) and confession-and-avoidance doctrine). Similarly, in Maciel v. State, the court phrased the confession-and-avoidance rule in terms of what the “defensive evidence” showed. Maciel v. State, 631 S.W.3d 720, 725–26 (Tex. Crim. App. 2021). However, self-defense requires one element that must originate one way or another from the defendant: proof of the defendant’s subjective belief that his conduct was immediately necessary. Tex. Penal Code § 9.31(a). Another person can provide the testimony, but that evidence still must be of “the defendant’s acts and words at the time of the offense” indicating his subjective belief. See Lozano, 636 S.W.3d at 33.

One murder case that the court of criminal appeals once considered anomalous but has since determined to be in harmony with how it now views confession and avoidance is Martinez v. State, 775 S.W.2d 645 (Tex. Crim. App. 1989). See Juarez, 308 S.W.3d 398. The defendant testified that the victim, Gonzales, threatened to kill him and grabbed his shirt. Thinking the victim was going for a knife, he pulled his gun and fired several warning shots. His mother-in-law then grabbed his arm, causing the gun to discharge several times, and the victim was struck by one of these shots. On these facts, the trial judge erred in refusing to instruct on self-defense because Martinez did not admit to the offense:

Martinez, 775 S.W.2d at 647.

In Rodriguez, the court of criminal appeals reaffirmed the holding in Martinez. The court stated that refusing a self-defense instruction in cases like Martinez

Rodriguez, 629 S.W.3d at 233 (also reconciling Martinez and Juarez).

In Rodriguez, the defendant testified that the victim tried to jerk away, and other people were pulling on the defendant while he was pointing the gun at the victim. But the defendant

Rodriguez, 629 S.W.3d at 234. The defendant “satisfied confession and avoidance[,] notwithstanding his assertion that he unintentionally fired the gun[,] because his testimony impliedly supported the charged conduct.” Rodriguez, 629 S.W.3d at 237. See also Maciel, 631 S.W.3d at 723 (defendant’s defense to DWI charge was that, although she was intoxicated, she was attempting to move the vehicle out from the middle of the road to a nearby parking lot out of concern for her and her fellow passengers’ safety, so defendant was entitled to jury instruction on necessity—another confession-and-avoidance defense—even though the defendant stated that she did not “think I was operating [the car]”); Gamino v. State, 537 S.W.3d 507, 511–12 (Tex. Crim. App. 2017) (defendant sufficiently admitted offense of aggravated assault by admitting displaying gun and stating to complainant, “stop,” “get away,” and “leave us alone”). In applying the confession-and-avoidance doctrine after Rodriguez, practitioners must carefully consider what an appellate court may later imply from a defendant’s testimony. Express denial of the conduct and/or culpable mental state required for the offense will not prevent a defendant from being entitled to a self-defense instruction unless that is the only evidence or possible inference from the evidence. Trial judges who are not clear about what inferences the defense is relying on to warrant a defensive instruction should ask the defense attorney to specify. See Williams v. State, No. PD-0477-19, 2021 WL 2132167 (Tex. Crim. App. May 26, 2021), reh’g denied (Aug. 24, 2022) (defendant waived entitlement to lesser-included-offense instruction by failing to point to specific evidence raising the issue when asked and when the evidence was not obvious).

Threat to Use Deadly Force. 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, 537 S.W.3d at 511. 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) (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.

Recklessness and Self-Defense. The court of criminal appeals has held that a defendant can assert self-defense in a case in which he has been charged with committing an offense recklessly. Alonzo v. State, 353 S.W.3d 778, 782 (Tex. Crim. App. 2011). The court recognized that decisions have held that an individual cannot recklessly act in self-defense, but those cases all dealt with murder defendants who argued self-defense and then, based on that same evidence, requested that the jury be charged with the lesser-included offense of manslaughter. The very reason for denying the manslaughter charges was that the defendants’ evidence was that, in committing the homicide, they acted intentionally in self-defense, not merely recklessly. Alonzo, 353 S.W.3d at 782. A fact-finder cannot find that a defendant acted recklessly and in self-defense. But that does not mean that a defendant cannot argue self-defense when charged with an offense whose requisite mental state is recklessness. Alonzo, 353 S.W.3d at 782.

Self-Defense and Property Crimes. The court of criminal appeals has held that section 9.31 is available in a prosecution for criminal mischief where the mischief arises out of the accused’s use of force against another. Although self-defense has its roots in the law of homicide, section 9.31 provides justification for offenses other than those committed against the person. Boget v. State, 74 S.W.3d 23, 31 (Tex. Crim. App. 2002).