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

3:1730 Limitations on Self-Defense

a. Apparent Danger Instruction

Because the reasonableness of the actor’s belief that force or deadly force was immediately necessary is judged from the standpoint of an ordinary person “in the same circumstances as the actor,” a person “has a right to defend from apparent danger to the same extent as he would had the danger been real; provided he acted upon a reasonable apprehension of danger as it appeared to him at the time.” See, e.g., Broussard v. State, 809 S.W.2d 556, 559 (Tex.App.-Dallas 1991, pet. ref’d).

In a proper case, the defendant is entitled to a charge on self-defense based upon apparent danger. Jones v. State, 544 S.W.2d 139 (Tex.Crim.App. 1976); Hamel v. State, 916 S.W.2d 491 (Tex.Crim.App. 1996). This could be charged in more than one way. See, e.g., Valentine v. State, 587 S.W.2d 399 (Tex.Crim.App. 1979) (instruction defining reasonable belief as requiring only that a “reasonable apprehension of danger, whether it be actual or apparent” exist to trigger legal use of self-defense and an appropriate instruction). Courtney v. State, 908 S.W.2d 48 (Tex.App.-Houston [1st Dist.] 1995, pet. ref’d) (court erred in failing to instruct on “apparent danger”).

b. Antecedent Threats; Prior Assaultive Conduct

Antecedent threats may be considered as one circumstance in determining the existence of real or apparent danger. So may prior difficulties, if any. (Of course, so could an immediate threat to kill). Fielder v. State, 756 S.W.2d 309 (Tex.Crim.App. 1988). See, Torres v. State, 7 S.W.3d 712 (Tex.App.-Houston [14th Dist. 1999, pet. ref’d); Holloman v. State, 948 S.W.2d 349 (Tex.App.-Amarillo 1997, no pet.).

However, the trial court should be conscious of giving non-statutory instructions in the area of self-defense, as they may comment on the weight of the evidence. Under the facts of Walters v. State, 247 S.W.3d 204 (Tex.Crim.App. 2007), the Court of Criminal Appeals upheld the trial court’s denial of a charge on prior verbal threats made by the victim. The jury charge stated the law of self-defense and already allowed consideration of that evidence. Therefore, though the parties may offer any evidence that would support or refute a finding of self-defense, the parties are not entitled to special, non-statutory jury instructions on how to consider or evaluate specific types of evidence introduced to prove or disprove that defense. Such an instruction would improperly focus the jury’s attention on a specific type of evidence. Id. The Court of Criminal Appeals held that neither party is entitled to a special jury instruction relating to a defense if the requested instruction “(1) is not grounded in the Penal Code, (2) is covered by the general charge to the jury, and (3) focuses the jury’s attention on a specific type of evidence that may support an element of an offense or a defense.” Walters v. State at 212.

The belief and intent of the Defendant is the sole focus of a self-defense claim; not the victim’s. “The jury’s judgment must be made only from the viewpoint of the appellant; the undisclosed intentions of the deceased cannot lessen the right to self-defense.” Kolliner v. State, 516 S.W.2d 671, 674 (Tex.Crim.App. 1974).

The use of force against another is not justified in response to verbal provocation alone. Tex. Penal Code §9.31(b)(1). A clear example is provided in the case of Tabler v. State, No. AP-75,677, 2009 Tex.Crim.App. Unpub. LEXIS 830 (Tex.Crim.App. Dec. 16, 2009) (unpublished). The Court of Criminal Appeals held that the defendant could not have reasonably believed that deadly force was immediately necessary to protect himself or his family from the use of unlawful deadly force. “It is doubtful that [victim’s] statement that he ‘could’ wipe out [defendant’s] family amounted even to verbal provocation. In addition, the verbal provocation had ended several days before [defendant] lured [victim] to a deserted parking lot with the intention of killing him. Under these circumstances, the trial court did not err in refusing …” the instruction on self-defense and defense of third person. Id.

c. Consent

“The use of force against another is not justified … if the actor consented to the exact force used or attempted by the other.” Tex.Penal Code Ann. §9.31(b)(3) (Vernon Supp. 2007).

d. Mistake

The trial court’s giving of a charge on mistake of fact as to lack of knowledge that intruders were police officers and, therefore, negation of culpability required to convict for capital murder does not satisfy defendant’s request and entitlement to a charge on mistake of fact, in a murder or attempted murder case, that negates the culpability because defendant reasonably believed he was being robbed or assaulted. Venegas v. State, 660 S.W.2d 547 (Tex.App.-San Antonio 1983, no pet.), relying upon Williams v. State, 547 S.W.2d 18 (Tex.Crim.App. 1977); Lynch v. State, 643 S.W.2d 737 (Tex.Crim.App. 1983); and Beggs v. State, 597 S.W.2d 375 (Tex.Crim.App. 1980).

e. Provoking the Difficulty

The lawful use of self-defense is not available if the defendant provoked the other’s use or attempted use of unlawful force. A provocation instruction tells the jury that if it finds that the accused provoked the problem in order to have a pretext to kill or injure, then the right of self-defense is forfeited. A “provoking the difficulty” instruction is proper if 1) self-defense is in issue, 2) facts in evidence show that the victim made the first attack on the accused, and 3) the accused did some act or used some words intended to and calculated to bring on the difficulty so as to have a pretext for inflicting injury on the victim. Matthews v. State, 708 S.W.2d 835 (Tex.Crim.App. 1986); Lee v. State, 903 S.W.2d 845 (Tex.App.-Beaumont 1995, pet. ref’d); Smith v. State, 965 S.W.2d 509 (Tex.Crim.App. 1998); Juarez v. State, 961 S.W.2d 378 (Tex.App.-Houston [1st Dist.] 1997, pet. ref’d).

Provoking the difficulty is a prosecutor’s instruction because it narrows the law of self-defense as it applies to the accused. The instruction places the defendant in the wrong. The jury may find that the accused had no right to defend himself when there is evidence that the deceased made the first assault on the accused because the defendant, in order to have a pretext for killing or inflicting bodily injury upon the deceased, did some act or used some words intended to and calculated to bring on the difficulty. The instruction informs the jury that the accused forfeits his right of self-defense if the defendant provoked the difficulty in order to have a pretext to kill or injure the victim. Kelley v. State, 968 S.W.2d 395 (Tex.App.-Tyler 1998, no pet.).

It is error to instruct the jury regarding the accused’s having provoked the difficulties when the testimony does not raise the issue because the instruction places the accused in the wrong. A charge on provocation should be submitted when “sufficient evidence” raises an issue of fact as to each element of provocation. That is, an instruction on provocation should only be given when there is evidence from which a rational jury could find every element of provocation beyond a reasonable doubt. Smith v. State, 965 S.W.2d 509 (Tex.Crim.App. 1998).

In Ramirez v. State, 873 S.W.2d 757 (Tex.App.-El Paso 1994, pet. ref’d), the court observed: “A jury instruction on provoking the difficulty is properly given when:

• Self-defense is an issue;

• There are facts in evidence which show that the deceased made the first attack on the defendant; and

• The defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury on the deceased.”

Also see, Smith v. State, 965 S.W.2d 509 (Tex.Crim.App. 1998); Matthews v. State, 708 S.W.2d 835 (Tex.Crim.App. 1986); Williamson v. State, 672 S.W.2d 484 (Tex.Crim.App. 1984).

f. Right to Seek Resolution of Differences

The 1995 Penal Code provided a new limitation of self-defense, namely, §9.31(b)(5): “The use of force against another is not justified … if the actor sought an explanation from or discussion with the other person while the actor was carrying a handgun, illegal knife, or club.” Section 9.31(b)(5) does not prohibit carrying a rifle or shotgun and does not prohibit legally carrying a handgun, illegal knife, or club. Many legal reasons exist for carrying a weapon; each of these legal excuses should be explored. In Bumguardner v. State, 963 S.W.2d 171 (Tex.App.-Waco 1998, pet. ref’d), the Court of Appeals determined that a charge on this issue was proper. See below for charge.

“The use of force against another is not justified…if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was: (A) carrying a weapon in violation of §46.02; OR (B) possessing or transporting a weapon in violation of Section 46.05.” Tex. Penal Code Ann. §9.31(b)(5) (Vernon Supp. 2007). Pursuant to §46.02, a person may carry a “handgun, illegal knife, or club … on the person’s own premises or premises under the person’s control.” See Tex. Penal Code Ann. §46.02(a)(1) (Vernon Supp. 2007).

Effective September 1, 2007, a person may carry such a weapon “inside of or directly en route to a motor vehicle that is owned by the person or under the person’s control.” See Tex. Penal Code Ann. §46.02(a)(2) (Vernon Supp. 2007). The only limitation on this right is that a person may not carry “on or about his or her person a handgun in a motor vehicle … at any time in which: (1) the handgun is in plain view; OR (2) the person is: (A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic; (B) prohibited by law from possessing a firearm; OR (C) a member of a criminal street gang, as defined by Section 71.01.” See Tex. Penal Code Ann. §46.02(a-1) (Vernon Supp. 2007). Section 46.05 prohibits possession ONLY of “prohibited weapons.” See Tex. Penal Code Ann. §46.05 (Vernon Supp. 2007).

It may be argued that if a defendant “reasonably believed that it was immediately necessary to avoid imminent harm” to illegally carry a weapon and “the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct…,” see Tex. Penal Code Ann. §9.22 (Vernon 2003); he might be entitled to an instruction on the defense of necessity as it relates to carrying the weapon to seek resolution of the conflict.