TX 3:1770 Admissibility of Prior Bad Acts/Bad Character of Alleged Injured Party
Texas Criminal Pattern Jury Instructions (TCPJI)
Chapter 3. Defenses & Special Evidentiary Charges
XXVII. SELF DEFENSE / DEFENSE OF THIRD PERSON / DEFENSE OF PROPERTY
3:1770 Admissibility of Prior Bad Acts/Bad Character of Alleged Injured Party
In a self-defense case where there is some evidence of an act on the part of the alleged injured party sufficient to raise the issue as to who was the “first aggressor,” evidence of both the general reputation of the alleged injured party for being a violent or dangerous person, and prior specific acts of violent misconduct committed by the alleged party are admissible. See, e.g., Mozon v. State, 991 S.W.2d 841, 845-46 (Tex.Crim.App. 1999); Gutierrez v. State, 764 S.W.2d 796, 798 (Tex. Crim.App. 1989); Thompson v. State, 659 S.W.2d 649, 653-54 (Tex.Crim.App. 1983); Navarro v. State, 639 S.W.2d 945, 946 (Tex. Crim.App. 1982); Dempsey v. State, 266 S.W.2d 875, 877-78, 159 Tex. Crim. 602 (Tex.Crim.App. 1954). This portion of the so-called Dempsey rule was codified in Rule 404(a)(2) of the Rules of Evidence. See Mozon, 991 S.W.2d at 845-46; Fry v. State, 915 S.W.2d 554, 560 (Tex.App.-Houston [14th Dist.] 1995, no pet.); Carrasquillo v. State, 742 S.W.2d 104, 110 (Tex.App.-Fort Worth 1987, no pet.). Rule 404(a)(2) provides that “evidence of a pertinent trait of character of the victim of the crime” is admissible. See TEX. R. EVID. 404(a)(2). In this situation, the alleged injured party’s character as a violent and aggressive person is a “pertinent trait” as it demonstrates that he was the first aggressor. Because the alleged injured party’s violent and aggressive character is admissible under Rule 404(a)(2), it may be proven by evidence of either specific acts of misconduct, see TEX. R. EVID. 405(b), or reputation and opinion testimony, see TEX. R. EVID. 405(a). See also, e.g., Gonzales v. State, 838 S.W.2d 848, 859 (Tex. App.-Houston [1st Dist.] 1992), pet. dism’d, improvidently granted, 864 S.W.2d 522 (Tex. Crim. App. 1993). In such a situation, the evidence is admissible regardless of whether the defendant knew about it at the time of the alleged offense in question. See, e.g., Thompson, 659 S.W.2d at 654.
Evidence of the alleged injured party’s bad acts and bad character is also admissible as it is probative of the reasonableness of a defendant’s belief that he had to defend himself; assuming, of course, that the defendant knew about the bad acts and bad character. See, e.g., Fry v. State, 915 S.W.2d 554, 560-61 (Tex. App.-Houston[1st Dist.] 1995, no pet.) (“if the evidence is offered to show the defendant killed the decedent because he reasonably believed his life to be in danger, the defendant must first establish that he was aware of the decedent’s violent character . . . His knowledge of the deceased’s aggressive nature may be from personal knowledge or from hearsay” (citations omitted)).