Criminal Pattern Jury Charges (Criminal Defenses) (2015)
Chapter 32.Self-Defense Involving Deadly Force
CPJC32-2 Instruction—Self-Defense Involving Deadly Force to Protect Against Deadly Force by Another

[Insert instructions for underlying offense.]

If you all agree the state has proved, beyond a reasonable doubt, each of the [number] elements listed above, you must next consider whether the defendant’s use of force was made in self-defense.

Self-Defense

You have heard evidence that, when the defendant [insert specific conduct constituting offense], he believed his use of force was necessary to defend himself against [name]’s use [or attempted use] of unlawful deadly force.

Relevant Statutes

A person’s use of deadly force against another that would otherwise constitute the crime of [offense] is not a criminal offense if the person reasonably believed the force used was immediately necessary to protect the person against the other’s use [or attempted use] of unlawful deadly force.

Self-defense does not cover conduct in response to verbal provocation alone. The defendant must have reasonably believed the other person had done more than verbally provoke the defendant.

Burden of Proof

The defendant is not required to prove self-defense. Rather, the state must prove, beyond a reasonable doubt, that self-defense does not apply to the defendant’s conduct.

Definitions

Reasonable Belief

“Reasonable belief” means a belief that an ordinary and prudent person would have held in the same circumstances as the defendant.

Deadly Force

“Deadly force” means force that is intended or known by the person using it to cause death or serious bodily injury or force that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Failure to Retreat

A person who has a right to be present at a location where the person uses deadly force against another is not required to retreat before using deadly force in self-defense if both—

1. the person with the right to be present did not provoke the person against whom the deadly force is used; and

2. the person is not engaged in criminal activity at the time the deadly force is used.

Therefore, in deciding whether the state has proved that the defendant did not reasonably believe his use of deadly force was necessary, you must not consider any failure of the defendant to retreat that might be shown by the evidence if you find both—

1. the defendant did not provoke [name], the person against whom the defendant used deadly force; and

2. the defendant was not engaged in criminal activity at the time he used the deadly force.

If you do not find both 1 and 2, you may consider any failure of the defendant to retreat that might be shown by the evidence in deciding whether the defendant reasonably believed his use of deadly force was necessary.

Presumption

Under certain circumstances, the law creates a presumption that the defendant’s belief—that the deadly force he used was immediately necessary—was reasonable. A presumption is a conclusion the law requires you to reach if certain other facts exist.

Therefore, you must find the defendant’s belief—that the deadly force he used was immediately necessary—was reasonable unless you find the state has proved, beyond a reasonable doubt, at least one of the following elements. The elements are that—

[Include only those elements supported by the evidence.]

1. the defendant neither knew nor had reason to believe that [name]—

a. unlawfully and with force entered, or was attempting to enter unlawfully and with force, the defendant’s occupied habitation, vehicle, or place of business or employment; or

b. unlawfully and with force removed, or was attempting to remove unlawfully and with force, the defendant from the defendant’s habitation, vehicle, or place of business or employment; or

c. was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery; or

2. the defendant provoked [name]; or

3. the defendant, at the time the deadly force was used, was engaged in criminal activity other than a class C misdemeanor that is a violation of a law or ordinance regulating traffic.

If you find the state has proved element 1, 2, or 3 listed above, the presumption does not apply and you are not required to find that the defendant’s belief was reasonable.

Whether or not the presumption applies, the state must prove, beyond a reasonable doubt, that self-defense does not apply to this case.

Application of Law to Facts

If you have found that the state has proved the offense beyond a reasonable doubt, you must next decide whether the state has proved that the defendant’s conduct was not justified by self-defense.

To decide the issue of self-defense, you must determine whether the state has proved, beyond a reasonable doubt, one of the following two elements. The elements are that—

1. the defendant did not believe his conduct was immediately necessary to protect himself against [name]’s use [or attempted use] of unlawful deadly force; or

2. the defendant’s belief was not reasonable.

You must all agree that the state has proved, beyond a reasonable doubt, either element 1 or 2 listed above. You need not agree on which of these elements the state has proved.

If you find that the state has failed to prove, beyond a reasonable doubt, either element 1 or 2 listed above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of [insert specific offense], and you all agree the state has proved, beyond a reasonable doubt, either element 1 or 2 listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge, in Texas Criminal Pattern Jury Charges—General, Evidentiary & Ancillary Instructions.]