Chapter 9
Justification Defenses
9.32 Defense of Others Generally
Approach of Instruction. The instruction at CPJC 9.33 breaks the defense down into three elements rather than use the statutory structure of two parts or elements. This was done to identify and focus on what (despite the statutory framework and terminology) is clearly the major aspect of the defense—the defendant’s perception that someone else was being unlawfully attacked by the complainant.
The defendant’s belief concerning the existence of an unlawful attack is clearly a part of the defense under Texas Penal Code section 9.33. Unfortunately, the complex statutory language somewhat obscures this element.
The instruction essentially incorporates self-defense law by reference and sets out a modified statement of that law for this incorporation. Theoretically, the instruction might better perform this incorporation for the jury and set out more specifically what the state might prove to establish that the defense is inapplicable under the second aspect. In the instruction, this second aspect indicates the state can prevail by proving that—
- 2. under the circumstances as the defendant reasonably believed them to be, the third individual would not have been entitled to defend himself against this unlawful force; or
This, however, seems too difficult to do without incredibly complicating the instructions.
Retreat. Under prior law, when the instruction implicated the duty to retreat, the instruction had to make clear that the question was whether, under the circumstances as the defendant perceived them to be, the attacked person had a duty to retreat. A trial court erred by giving an instruction telling the jury to address whether the defendant had a duty to retreat. Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986).
Comment
Current practice appears to be to first instruct juries on the abstract law as set out in Texas Penal Code section 9.33 in much the same language as is used in the statute. Juries are then instructed on the abstract law of self-defense.
Application paragraphs, however, do not appear to follow the abstract law. Generally, they do not attempt to work in the requirement of section 9.33(1). Rather, they simplify the question to whether the defendant reasonably believed his use of force was “immediately necessary” to protect the person attacked by the complainant. A number of “model” instructions illustrate this:
[I]f . . . you further find from the evidence, or you have a reasonable doubt thereof, that at that time another person was under attack or attempted attack from the complainant, __________, and that the defendant reasonably believed, as viewed from his standpoint, that such force as he used, if any, was immediately necessary to protect another against such attack or attempted attack, and so believing, he __________ (insert facts of self-defense issue raised by evidence), then you will acquit the defendant and say by your verdict “not guilty.”
Paul J. McClung et al., 1 Texas Criminal Jury Charges § 3:1910 (Rev. 12 2012).
[I]f . . . you further find from the evidence, or have a reasonable doubt thereof, that the defendant reasonably believed [as viewed from his standpoint alone] that deadly force when and to the degree used, if it was, was immediately necessary to protect E.F. against the use or attempted use of unlawful deadly force [* insert] by the said C.D., [or to prevent the imminent commission by the said C.D. of aggravated kidnapping, murder, rape, aggravated rape, robbery, or aggravated robbery upon E.F.]; and that at such time a reasonable person in E.F.’s situation would not have retreated, you will acquit the defendant and say by your verdict “not guilty.”
8 Michael J. McCormick et al., Texas Practice Series: Criminal Forms and Trial Manual § 106.20 (11th ed. 2005).
[I]f you find from the evidence beyond a reasonable doubt that the defendant, (DEFENDANT), did __________, as alleged in the indictment, but you further find from the evidence, or you have a reasonable doubt thereof, that, viewed from the standpoint of the defendant at the time, from the words, or conduct, or both, of (COMPLAINANT), it reasonably appeared to the defendant that the life or person of (THIRD PERSON) was in danger and there was created in the defendant’s mind a reasonable expectation or fear of (THIRD PERSON)’s bodily injury from the use of unlawful force at the hands of (COMPLAINANT) and that acting under such apprehension and reasonably believing that the use of force, by his intervention, on his part was immediately necessary to protect (THIRD PERSON) against (COMPLAINANT)’s use or attempted use of unlawful force, if any, he to (COMPLAINANT) by _____________, then you will find the defendant “Not Guilty”; or if you should have a reasonable doubt as to whether or not the defendant was so acting in defense of (THIRD PERSON) on said occasion, then you should give the defendant the benefit of that doubt and acquit him.
Harris County Jury Charge Bank, https://www.justex.net/Courts/Criminal/JuryChargeBank/Directory.aspx?Category=Misc.+Instructions%2CDefensive+Issues (then follow “Miscellaneous Instructions,” “Defensive Issues,” and “DEF. 3RD PER. (PRIOR).docx”).
This simplification, as a general policy, seems undesirable. The application unit should provide for application of the law set out in the abstract unit.
The essence of section 9.33(1) seems to be that the defendant must reasonably perceive the situation as one in which—if the defendant were in the threatened person’s place—the defendant would be entitled under self-defense law to use the force he actually used to defend himself.
It is not clear what section 9.33(2) adds to this. Perhaps this provision is meant to add that the defendant must reasonably have believed the attacked person would not be able to successfully defend himself. In other words, it may limit third-party intervention to situations in which reasonable appearances suggest the attacked person will be unable to successfully defend himself.