TX 3:1745 Retreat — Presumption of Reasonableness (Post-2007)
Texas Criminal Pattern Jury Instructions (TCPJI)
Chapter 3. Defenses & Special Evidentiary Charges
XXVII. SELF DEFENSE / DEFENSE OF THIRD PERSON / DEFENSE OF PROPERTY
3:1745 Retreat — Presumption of Reasonableness (Post-2007)
Because PC §9.31(a) and §9.32(b) are presumptions in favor of the defense, PC §2.05(b) applies. Under this rule, if the evidence produced at trial “give[s] rise to the presumption,” then “the issue of the existence of the presumed fact must be submitted to the jury unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact . . .” See TEX. PENAL CODE ANN. §2.05(b)(1) (Vernon Supp. 2007). Presumably, this means that the trial court could grant a directed verdict on the presumed fact and instruct the jury accordingly.
If the existence of the presumed fact is submitted to the jury, the trial court is required to instruct the jury that: “(A) the presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist; (B) if the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists; (C) even though the jury may find that the presumed fact does not exist, the state must prove beyond a reasonable doubt each of the elements of the offense charged; and (D) if the jury has a reasonable doubt as to whether the presumed fact exists, the presumption applies and the jury must consider the presumed fact to exist.” See TEX. PENAL CODE ANN. §2.05(b)(2) (Vernon Supp. 2007).
The quandary for the trial court is how to instruct on the presumption without violating Walters (cited above), and without commenting on the weight of the evidence.
“The Penal Code requires that a presumption that favors the defendant be submitted to the jury ‘if there is sufficient evidence of the facts that give rise to the presumption…unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.’” Morales v. State, 357 S.W.3d 1, 7 (Tex.Crim.App. 2011) (quoting Tex.Penal Code Ann. §2.05(b)(1) (Vernon 2011).
“The ‘no duty to retreat’ provisions in the self-defense statutes are not all-encompassing; by their language, they do not apply if the defendant provoked the person against who force or deadly force was used or if the defendant was engaged in criminal activity at the time; but when these provisions do apply, the defendant has no duty to retreat.” Id. at 5. In Morales, the duty to retreat was included in the jury charge, and the presumption of reasonableness was not. The Court of Appeals upheld this because it found that since the defendant was a part of a fight involving more than seven persons, it was a criminal riot and therefore would negate entitlement to the presumption. Id. at 5. The Court of Criminal Appeals, however, did not uphold this analysis. “When these provisions do not apply, the 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.” Id. at 5. The Court found that the trial court’s charge was a comment on the weight of the evidence. Id.
Where the body of deceased was discovered September 6, 2007, but the testimony was that the murder more than likely occurred on August 29, 2007, the defendant was not entitled to an instruction on the Castle Doctrine and that defendant had no duty to retreat inside his own home. Although evidence to support a defense may be contradicted, it must be affirmative evidence and cannot be based on speculation or hypothetical “what if” scenarios. Krajcovic v. State, 393 S.W.3d 282 (Tex.Crim.App. 2013).