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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
Under prior law, deadly force was justified in self-defense only “if a reasonable person in the actor’s situation would not have retreated.” See Acts 1973, 63d Leg., R.S., ch. 399, § 1 (S.B. 34), eff. Jan. 1, 1974, amended by Acts 2007, 80th Leg., R.S., ch. 1, § 3 (S.B. 378), eff. Sept. 1, 2007. Legislation in 2007 eliminated that provision and inserted in both sections 9.31 and 9.32 nearly identical provisions identifying situations in which persons are not required to retreat before using force in self-defense (sections 9.31(e) and 9.32(c)) and in which a fact finder is barred from considering failure to retreat in determining whether a defendant reasonably believed the use of force was necessary (sections 9.31(f) and 9.32(d)). See Tex. Penal Code §§ 9.31(e)(f), 9.32(c)(d).
As a result, neither statutory provision addresses specifically when, if ever, retreat is required or the effect of a defendant’s failure to retreat when retreat is required.
The court of criminal appeals has stated the following with regard to a duty to retreat under the current statutory framework:
[T]he failure to retreat may be considered in determining whether a defendant reasonably believed that his conduct was immediately necessary to defend himself or a third person. In such cases, the prosecutor may argue the failure to retreat as a factor in determining whether the defendant’s conduct really was immediately necessary. Or if a fact issue is raised regarding the applicability of the provisions that specifically negate a duty to retreat, the prosecutor can argue that the facts do not satisfy the provisions and then argue the failure to retreat as a factor relevant to the defensive issue.
But that does not mean that the trial court should submit a jury instruction regarding a general duty to retreat.
Morales v. State, 357 S.W.3d 1, 5 (Tex. Crim. App. 2011) (footnotes omitted) (emphasis added). The court further suggested that a jury cannot be instructed on a general duty to retreat “because such an instruction would be a comment on the weight of the evidence.” Morales, 357 S.W.3d at 6. See also Lozano v. State, 636 S.W.3d 25, 33 (Tex. Crim. App. 2021), reh’g denied (Jan. 12, 2022) (jury was erroneously instructed that defendant could not act in self-defense if a reasonable person in the defendant’s situation would have retreated—with no connection to the current statutory provisions on “retreat” in sections CPJC 9.31 and CPJC 9.32).
As Morales observed, one reasonable reading of the above provisions is that if a trier of fact finds the defendant was required to retreat and did not do so, this is to be considered as bearing on whether the defendant reasonably believed the force the defendant used was necessary as required by the general rule of self-defense. Despite Morales’s caution only against general duty-to-retreat language in the charge, the Committee believed that arguments in this vein should be left to the parties to make to the jury. Except for informing the jury when, by statute, there is no duty to retreat and forbidding their consideration of the issue under those circumstances, the court should not comment on how a jury should treat a defendant’s failure to retreat.
The instruction at CPJC 9.10 attempts to implement this.
The failure to retreat section of that instruction provides:
You must not consider any failure of the defendant to retreat that might be shown by the evidence if you find both—
Expressly instructing the jury that they may consider failure to retreat if they do not find both 1 and 2 would run the risk of constituting an impermissible comment on the weight of the evidence. See Morales, 357 S.W.3d at 5.