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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
Traditional Texas self-defense case law contains considerable discussion concerning the need for, or at least the permissibility of, what are often labeled “converse” instructions. Early cases often involved instructions on “provoking the difficulty.” When this was covered by the instructions, the case law made clear, it was appropriate for the instructions to also address the converse—that is, that the defendant was entitled to prevail on self-defense if the issue of “provoking the difficulty” was resolved in favor of the defendant. E.g., Flewellen v. State, 204 S.W. 657, 660–61 (Tex. Crim. App. 1917). “It is well settled that where the court instructs the jury on the effect of provoking a difficulty it should also instruct on the converse of the proposition and the instructions on the converse should be given from the defendant’s viewpoint untrammeled by any extra burden or insinuation.” Dirck v. State, 579 S.W.2d 198, 203 (Tex. Crim. App. 1978) (opinion on rehearing) (citation omitted).
Other cases, however, used the term in a different manner, that is, in contexts involving no provocation-related issues. These decisions involved instructions properly telling juries that the state had the burden of proving self-defense inapplicable. They declined to disapprove a following converse instruction that told juries that if the state met its burden, the juries should find against the defendants on the issue of self-defense. See Whitaker v. State, 174 S.W.2d 975, 976 (Tex. Crim. App. 1943) (no harm was caused to defendant by converse instruction telling jury to find against defendant on his issue of self-defense if it found beyond a reasonable doubt that defendant did not reasonably believe he was in danger of death or serious bodily harm from deceased).
Such a converse instruction provides as follows:
If you find from the evidence beyond a reasonable doubt that at the time and place in question the defendant did not reasonably believe that he was in danger of death or serious bodily injury, . . . or that defendant, under the circumstances, did not reasonably believe that the degree of force actually used by him was immediately necessary to protect himself against [the victim’s] use or attempted use of unlawfully deadly force, if any as viewed from defendant’s standpoint, at the time, then you must find against the defendant on the issue of self defense.
Gonzales v. State, 762 S.W.2d 583, 587 (Tex. Crim. App. 1988).
The Dallas court of appeals in 1999 appeared sympathetic to a defendant’s argument that a converse instruction of the second type is an “anachronism in Texas law” that violates the spirit of the prohibition against comment on the evidence. Nevertheless, it held that it was bound to precedent establishing that the giving of such a converse instruction is not a basis for reversing a conviction. Aldana v. State, No. 05-98-00135-CR, 1999 WL 357355, at *6–7 (Tex. App.—Dallas June 4, 1999, pet. ref’d) (not designated for publication) (relying on Powers v. State, 396 S.W.2d 389, 391–92 (Tex. Crim. App. 1965)).
The Committee concluded that if jury instructions on self-defense are properly crafted, so-called converse instructions are neither necessary nor desirable. Thus the instruction at CPJC 9.10 does not include them.