Comment

Multiple-Assailants Instruction Generally. Before the 1974 Penal Code, Texas case law was clear that self-defense instructions had to be modified somewhat when the evidence raised the issue of multiple assailants. E.g., McCuin v. State, 505 S.W.2d 831 (Tex. Crim. App. 1974) (instruction on law of self-defense, which confined defense to an attack by deceased and not by multiple assailants, was reversible error). This multiple-assailants instruction has an impressive historical pedigree. See, e.g., McLaughlin v. State, 10 Tex. Ct. App. 340 (1881).

In a series of decisions beginning with Sanders v. State, 632 S.W.2d 346, 348 (Tex. Crim. App. [Panel Op.] 1982) (“Having found that appellant was entitled to an instruction on self-defense relating to multiple assailants, we find that there was reversible error.”), the court of criminal appeals held that a multiple-assailants instruction is required under 1974 Penal Code self-defense law. See Frank v. State, 688 S.W.2d 863, 867–68 (Tex. Crim. App. 1985) (denial of defendant’s requested instruction on right of self-defense against multiple assailants was reversible error); Brown v. State, 651 S.W.2d 782, 783–84 (Tex. Crim. App. 1983) (trial court erred in failing to instruct jury on law of self-defense from multiple assailants); Horn v. State, 647 S.W.2d 283, 285 (Tex. Crim. App. [Panel Op.] 1983) (trial court erred in refusing to instruct jury on law of self-defense from multiple assailants). See also Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999) (no actual harm shown from failure to give multiple-assailants instruction, so reversal of conviction not required).

The question of whether a defendant is entitled to a multiple-assailants instruction, if raised by the evidence, has now been definitively answered. In Jordan v. State, the court of criminal appeals reaffirmed that, when the evidence viewed from the defendant's standpoint shows an attack or threatened attack by more than one assailant, the defendant is entitled to a multiple-assailants instruction. Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Frank, 688 S.W.2d at 868). The issue may be raised even as to those who are not themselves aggressors, as long as they seem to be in any way encouraging, aiding, or advising the aggressor. Jordan, 593 S.W.3d at 343. The concept of “multiple assailants” does not require evidence that each person defended against was an aggressor in his own right; it requires evidence that the defendant had a reasonable fear of serious bodily injury from a group of people acting together. Jordan, 593 S.W.3d at 344. If there is evidence of more assailants than one, the charge must inform the jury that the accused can defend against either, and it is error to require the jury to believe or find that there was more than one assailant attacking the accused. Jordan, 593 S.W.3d at 345 (quoting Black v. State, 145 S.W. 944, 947 (Tex. Crim. App. 1912)).

The courts of appeals have followed this line of decisions. E.g., Dugar v. State, 464 S.W.3d 811, 817 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (if defendant reasonably believed that deadly force was immediately necessary to protect himself from use or attempted use of unlawful deadly force from group at large, then evidence raised issue of self-defense, regardless of complainant’s individual actions); Kemph v. State, 12 S.W.3d 530, 533 (Tex. App.—San Antonio 1999, pet. ref’d) (error in denying requested multiple-assailants self-defense instruction required reversal).

As Judge Keller explained in 1999, the traditional underlying substantive self-defense law is essentially that the principle of parties liability applies to the self-defense context:

Dickey, 22 S.W.3d at 493 (Keller, J., concurring); see also Echavarria v. State, 362 S.W.3d 148, 152 (Tex. App.—San Antonio 2011, pet. ref’d) (citing concurring opinion with approval and finding error in absence of “multiple assailants” instruction).

At least one discussion by the court of criminal appeals suggests that the instruction must effectively—and perhaps explicitly—convey to the jury that if A and B were joint assailants of the defendant, the defendant was entitled to use force against B if the defendant reasonably believed force was necessary to prevent A from using unlawful force against the defendant. Brown, 651 S.W.2d at 783–84 (where evidence suggested defendant was attacked by Leonard Bernard and then Jeffry Bernard (Leonard’s son) joined the events, “the jury should have been instructed that the appellant had a right to act in self-defense against Jeffry Bernard if he was in fear of death or serious bodily injury at the hands of either Jeffry Bernard or Leonard Bernard”). That approach has been reaffirmed by the court of criminal appeals in Jordan. Jordan, 593 S.W.3d at 345.

Existing law firmly gives defendants a right—in appropriate cases—to a multiple-assailants instruction.

The instruction at CPJC 9.10 therefore includes for use in appropriate cases a modernized version of the traditional multiple-assailants instruction. That instruction provides:

Some practitioners and trial judges may wish to charge the jury more in accordance with the language set forth from Jordan, as it is the most recent and now most authoritative statement from the court of criminal appeals on charging the jury on multiple assailants. Such an instruction might be worded as follows:

The Committee has not chosen this latter version of the instruction, applying the language from Jordan, because Jordan did not purport to change the law regarding the language of a multiple-assailants instruction and because the language of a multiple-assailants instruction was not before the court in Jordan.

Structuring Multiple-Assailants Instruction. The Committee recommends that, if the facts raise the multiple-assailants issue, this be first explained in general terms in the statement of the defense. Second, the application of law to facts unit should be redone to reflect the showing that the state must make to establish the inapplicability of self-defense in this context.

When Multiple-Assailant Instruction Should Be Given. In Frank, 688 S.W.2d 863, the court of criminal appeals explained:

Frank, 688 S.W.2d at 868. As noted above, this holding was reaffirmed in Jordan.

This analysis, however, requires more evidence than simply that persons other than the actual attacker were present. The evidence must tend to show that the others joined the attack or at least were present pursuant to an agreement to do so. Juarez v. State, 886 S.W.2d 511, 514 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (evidence that seven or eight other men were present did not require multiple-assailants instruction, because “[t]he record is silent about the conduct of the seven or eight other men. There is no evidence to suggest that it was reasonable to think that any or all were about to attack with deadly force”). See also Jimmerson v. State, No. 05-97-01148-CR, 1999 WL 153228, at *7 (Tex. App.—Dallas Mar. 23, 1999, no pet.) (not designated for publication) (defendant’s testimony that he thought another occupant of the complainant’s car was attacking him because that person “was acting as though he had a gun” and that person repeatedly told the defendant to “come on down here” did not raise the possibility of a reasonable belief that the other occupant as well as the complainant was attacking the defendant); Vargas v. State, No. 14-96-01352-CR, 1998 WL 820703, at *4 (Tex. App.—Houston [14th Dist.] Nov. 25, 1998, pet. ref’d) (not designated for publication) (defendant’s testimony that driver of car made gang signals and followed defendant did not raise possibility that defendant reasonably thought he was being attacked by both passenger with gun and driver).