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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
Instructions on self-defense pose particular problems because pre-1974 case law contains and appears to require a considerable number of traditional instructions. In Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), the court of criminal appeals made clear that much of that traditional law is no longer appropriate for jury instructions under the 1974 Penal Code.
In Walters, the murder defendant complained of the trial court’s refusal to give a “prior verbal threats” instruction that prior case law indicated was required in the situation. The requested instruction was—
You are instructed that where a defendant accused of murder seeks to justify himself on the grounds of threats against his own life, he is permitted to introduce evidence of the threats made, but the same shall not be regarded as affording justification for the offense unless it be shown that at the time of the killing, the person killed, by some act then done, manifested an intention to execute the threats so made and provided that a reasonable person in the defendant’s situation would not have retreated.
The court commented, “[W]e have already held that some pre-1974 common-law instructions on self-defense survived in the 1974 Code.” Walters, 247 S.W.3d at 210. But, it continued—
generally speaking, neither the defendant nor the State is entitled to a special jury instruction relating to a statutory offense or defense if that instruction (1) is not grounded in the Penal Code, (2) is covered by the general charge to the jury, and (3) focuses the jury’s attention on a specific type of evidence that may support an element of an offense or a defense. In such a case, the non-statutory instruction would constitute a prohibited comment on the weight of the evidence.
. . . .
In this case, the “prior verbal threats” instruction meets all three criteria.
First, the former penal code provisions, on which [early cases approving the instruction] relied, contained specific language pertaining to acts or words of the victim, but the current statutes do not.
Second, the charge requested was covered by the self-defense charge given—one that included an instruction on apparent danger. . . .
Third, the requested instruction is not benign. Instead, it focuses the jury’s attention on a specific type of evidence that could support a finding of self-defense.
Walters, 247 S.W.3d at 212–13 (footnotes omitted).
Walters distinguished traditional jury instructions that concerned the evidence necessary or sufficient to establish a matter as part of self-defense law from other instructions that concerned the substance of self-defense law. Instructions of the first type were often based on specific statutory provisions that were not incorporated into the 1974 Penal Code. Consequently, those instructions no longer fall within any exception to the general prohibition against instructions that call juries’ attention to particular categories of evidence. Walters, 247 S.W.3d at 211–12.
Under Walters, courts must give careful consideration to any proposed instruction on self-defense that does not state law explicitly set out in the current Penal Code.
Walters suggests that, for purposes of the Committee’s task, particular attention might usefully be given to whether self-defense instructions should include traditional “multiple-assailant” and “apparent danger” instructions. These are addressed at CPJC 9.9 and the comment to the instruction at CPJC 9.10.