TX 3:1760 Sufficiency of Evidence to Permit Instruction
Texas Criminal Pattern Jury Instructions (TCPJI) (2010)
Note: Texas Criminal Pattern Jury Charges were updated in 2015.
Chapter 3. Defenses & Special Evidentiary Charges
XXVII. SELF DEFENSE / DEFENSE OF THIRD PERSON / DEFENSE OF PROPERTY
A. Law
3:1760 Sufficiency of Evidence to Permit Instruction
“It is well settled that an accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence.” Grainer v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999).
In determining whether a defendant is entitled to an instruction on self-defense, the credibility of the evidence should not be considered. An instruction is required if any evidence exists that raises the issue. Hamel v. State, 916 S.W.2d 491 (Tex.Crim.App. 1996).
A criminal defendant is entitled to an instruction on a defensive issue so long as he doesn’t deny committing the alleged conduct and otherwise presents evidence raising the issue of the requested defense. See Hill v. State, 99 S.W.3d 248, 250-251 (Tex.App.-Fort Worth 2003, pet. ref’d).
A defendant’s testimony alone is sufficient to raise the issue of self-defense or another defense. See, e.g., Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App. 1987). However, “it is clear that the issue of self-defense may be raised by evidence other than the defendant’s testimony…” so long as there is some evidence which shows “that the defendant reasonably believed that force was necessary to protect himself against the unlawful force of another.” See Ortega v. State, 207 S.W.3d 911, 919 (Tex.App.-Corpus Christi 2006 no pet.) (citing Smith v. State, 676 S.W.2d 584 (Tex.Crim.App. 1984); Nethery v. State, 692 S.W.2d 686, 704 (Tex.Crim.App. 1985); and Reed v. State, 703 S.W.2d 380, 382 (Tex.App.-Dallas 1986, pet. ref’d). See also, e.g., Williams v. State, 796 S.W.2d 793, 800 (Tex.App.-San Antonio 1990, no pet.) (“It is not necessary for the defendant to testify in order to raise the issue of mistake [of fact]”).
