Self-Defense Jury Charge Texas

When is a Defendant Entitled to a Jury Instruction on Self-Defense?

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Self-Defense Jury Charge TexasThe Court of Criminal Appeals recently released an opinion regarding when a defendant is entitled to a self-defense charge. The issue facing the Court was whether there was some evidence, from any source, that would support the elements of self-defense and whether self-defense was authorized when a deadly weapon was used in response to verbal provocation.

Gamino v. State, Court of Criminal Appeals (2017)

The Facts—The Trial Court Denied Defendant’s Request for a Self-Defense Instruction and Defendant was Subsequently Convicted.

On August 11, 2013, Cesar Gamino (Defendant) and his girlfriend were leaving downtown Fort Worth as the local bars were closing. While Defendant and his girlfriend were walking back to his truck they passed by a group of men who were heard saying lewd comments. Believing the comments were directed at his girlfriend, Defendant confronted the men. Khan, one of the men, told Defendant they were not talking about his girlfriend. According to Khan, Defendant then said “I got something for you,” went to his truck, retrieved a gun, and pointed it in their direction. Two police officers working nearby heard Defendant’s comment and saw Defendant with the gun. Defendant was subsequently arrested and charged with aggravated assault with a deadly weapon. Khan was also arrested and charged with public intoxication.

During trial, Defendant testified that the men threatened him and his girlfriend by saying “grab her ass” and that they would “F her if they wanted to,” and that they would “kick [his] ass.” Defendant further testified that one of the men got up and moved towards him in an aggressive manner. This behavior, coupled with the fact that Defendant was disabled, caused him to believe he and his girlfriend were in danger. As a result, Defendant testified that he reached into his truck, grabbed his gun and told the men, “[s]top, leave us alone, get away from us.” Defendant’s girlfriend also testified that he was in fact disabled and that the men had confronted them and threatened her—causing her to fear for her life.

At the end of the trial, the defense asked for a self-defense instruction in the jury charge and the trial court denied the request.

The Court of Appeals Reversed the Trial Court’s Decision—Holding Defendant was Entitled to a Self-Defense Instruction Regardless of the Fact that he was Charged with Aggravated Assault with a Deadly Weapon.

Section 9.31 of the Texas Penal Code governs self-defense. According to Section 9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. Verbal provocation by itself is not enough.

Section 9.32 governs the use of “deadly force” in self-defense cases. In the case at hand, the lower court charged Defendant with using a deadly weapon. However, even if a defendant uses a deadly weapon, deadly force as defined in section 9.32 may not apply if it meets the requirements of Section 9.04.

Under Section 9.04, a threat to cause death or serious bodily injury by the production of a weapon as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

The Court of Appeals determined that Defendant reasonably believed his use of force was immediately necessary to protect against Khan’s use or attempted use of unlawful force, and Defendant produced his gun for the limited purpose of creating an apprehension. Thus, the Court of Appeals ruled that under Defendant’s version of events, the use of his gun did not constitute the use of deadly force, and Defendant was not disqualified from receiving a self-defense instruction even though he was charged with aggravated assault with a deadly weapon because he met the requirement of Section 9.04.

Accordingly, the trial court erred by not submitting an instruction on self-defense to allow the jury to decide the issue of self-defense.

The Court of Criminal Appeals Affirmed the COA—Holding that the Jury Should Have Been Given the Opportunity to Assess Whether Appellant’s Conduct was Justified as Self-Defense.

The Court of Criminal Appeals agreed that the trial court erred in taking away the self-defense issue from the jury. According to Texas case law, it is error for a trial court to deny a self-defense instruction if there is some evidence, from any source, that will corroborate the elements of a self-defense claim—even if the evidence is weak, contradicted or not credible.

The State argued, as well as the dissent, that Defendant was not entitled to a self-defense instruction because he did not admit to threatening the victim with imminent bodily injury. This argument was based on the idea that self-defense is a confession and avoidance justification, and the confession was missing here. The Court however disagreed, inferring a confession.

Here, Defendant testified that he displayed his gun and yelled, “stop,” “get away,” and “leave us alone.” Accordingly, the court held it to be reasonable for the jury to infer that if the men did not stop, Defendant would have used his gun for protection. As such, even though the evidence was contradicted by the State, Defendant believed the display of his gun was immediately necessary to protect himself against the use or attempted use of unlawful force, and that he displayed his weapon for the limited purpose of creating an apprehension that he would use deadly force if necessary.

Using the Court of Appeals’ analysis, the Court of Criminal Appeals affirmed their judgment holding that the jury should have been given the opportunity to analyze Defendant’s actions as self-defense.

See also the Gamino Dissenting Opinion

Evil Clown Scare Texas

Hold Your Fire…Don’t Shoot the Clowns! Yet.

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Evil Clown Scare TexasRecently, a friend asked me if it was legal for individuals to dress as clowns and scare the public. He also wanted to know what would happen if he were frightened by one of these clowns and shot the clown. While not asking the latter in complete seriousness, these questions do bring up potential criminal law issues.

Is it Legal to Dress as a Clown in Public?

There’s no state law that we’re aware of that makes dressing up like a clown in public per se illegal.

The only potential laws that may be applicable to these situations would be individual city ordinances. A search of city codes in a handful of Texas towns around the Metroplex reveals no ordinance specifically prohibiting dressing like a clown in public. The only codes we are able to find related to costumes primarily had to do with a prohibition on costumes which fail to cover private areas in regards to sexually oriented businesses.

While dressing like a clown doesn’t appear to be per se prohibited, there is certainly the risk of breaking other laws while dressed as a clown. In addition, dressing like a clown in public and creating unnecessary alarm or panic could be deemed as disorderly conduct.

Texas Penal Code, Chapter 42 lays out a list of behaviors that could constitute up to a Class B misdemeanor. Class B misdemeanors can carry a penalty of up to 6 months in jail and up to a $2,000 fine. Sec. 42.01 (a)(2) states that a person commits an offense [of disorderly conduct] if he intentionally or knowingly makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace. An offense of this nature is a Class C misdemeanor and carries the possibility of up to a $500.00 fine.

Can I use Deadly Force Against the Clown?

Let’s start with the simple answer of “NO”. While individuals may be suffering from coulrophobia (the fear of clowns), this condition does not give you a right to use deadly force – or any force for that matter – against an individual simply because he or she is standing in public dressed as a clown.

The more complex answer of “maybe” would have to do with the use of force for self-defense purposes. Section 9.31 of the Texas Penal Code provides for a justifiable defense at the time of trial for self-defense, so long as the type of force used is reasonable and necessary in the moment to protect against an attacker. Under this law, the actor must reasonably believe that the force is reasonably necessary to protect against the other’s use or attempted use of unlawful force. Simply observing a clown, with no weapon or threat to use a weapon, provides no grounds to use force – much less deadly force – against that clown.

In addition, the Penal Code does establish that force may be used to protect one’s own property. A person in “lawful possession” of real property or personal property is justified in using force if “the actor reasonably believes the force is reasonably necessary to prevent or terminate the other’s trespass on the land…” However, the use of deadly force to protect one’s own property is limited. “A person is justified in using deadly force against another to protect land or property if (1) he is justified under TPC §9.41; (2) he reasonably believes using the force is immediately necessary to prevent commission of arson, burglary, or robbery; and, (3) the actor reasonably believes that the land or property cannot be protected or recovered by any other means [such as by calling law enforcement]. Tex. Penal Code Section 9.42.

Using force for self-defense purposes is a serious response to dangerous and threatening situations – but certainly not an appropriate response to being “creeped” out.

Bottom Line | Do Not Shoot the Clown (Yet)

Dressing up as a clown and causing fear amongst the public is a stupid (and perhaps even illegal) idea. Our attorneys would advise you strongly against it. You certainly place yourself in the position of having your behavior scrutinized by law enforcement for any potential illegal activity. And, if you’re simply afraid of clowns, do your defense attorney a favor and please do not shoot them.  BUT…If the clown lays a hand on you or chases you through a park, all bets are off. You may use force against the clown to avoid an assault.

Self Defense Deadly Force in Texas

The Castle Doctrine: Understanding Self Defense in Texas

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Know your Rights and Responsibilities Before Using Deadly Force for Self Defense in Texas

Self Defense Deadly Force in TexasYou may have heard about Texas Stand Your Ground Law or The Castle Doctrine.  These ideas refer to “standing your ground” in your “castle” against intruders by using deadly force to protect yourself.  But do you know when you can use force and what kind of force can be used? Understanding the Texas gun laws is incredibly important so that you know exactly what you can and cannot do when protecting yourself or your home, car, or business.

What exactly is the Castle Doctrine? When Can Deadly Force be used for Self Defense Purposes?

In Texas, Section 9 of the Texas Penal Code provides legal justifications for the use of force in a limited set of circumstances when a person has no duty to retreat. For example, a homeowner in his own home does not have a duty to retreat and may use deadly force to protect himself against an armed intruder. This would be the same for a business owner in his place of business and a truck driver in his own truck.

Texas law provides for a justifiable defense at trial when using deadly force if the person claiming self defense:

  1. Reasonably believed the deadly force was immediately necessary;
  2. Had a legal right to be on the property;
  3. Did not provoke the person against whom deadly force was used; and
  4. Was not engaged in criminal activity at the time the deadly force was used.

What is Considered Self Defense in Texas?

Self Defense will be a justifiable defense so long as the type of force used is reasonable and necessary in the moment to protect against an attacker. A person may use force against another when they reasonably believe it is immediately necessary to protect from another’s “use or attempted use of unlawful force.” A person may use deadly force in self defense under Section 9.31 of Texas Penal Code if he:

  • Knew the intruder unlawfully with force entered into his home, vehicle, or place of employment; or
  • Was being kidnapped; or
  • The intruder was attempting to sexually assault, rob, kidnap, or murder.

What is the Difference Between Deadly Force and Threat of Force?

Threat of force is when a person displays a weapon as a threat, showing that they will use deadly force to cause death or serious bodily injury if necessary. Texas Penal Code §9.04.  Threat of Force is a precursor to the use of Deadly Force.

For example, a landowner, on his property, sees a trespasser running towards him. If the landowner decides to turn in such a way to display his holstered, loaded gun which causes the trespasser to run off the property, Texas law says this is likely a justifiable threat of force.

When is Defense of Another Person Justifiable?

A person is justified in using force or deadly force to protect a third party if he believes intervention is immediately necessary and would be justified in using force or deadly force to protect himself against the unlawful force in the same circumstance.

However, use of force is not justified if in the use of force to protect a third party, the person gets the circumstances wrong and ends up seriously injuring or killing an innocent third party.

For example, a man sees his friend in a fight and intervene by using deadly force to protect his friend and kills the third party. The man did not realize that the third party was actually using force as self defense against his friend. In this situation, the man would not be able to use defense of others as a justification for killing the third party.

Protection of One’s Own Property

Under Texas Penal Code §9.42, a person may use deadly force against another to protect land or property if:

  1. He is the owner of the land;
  2. He reasonably believes using the force is immediately necessary to prevent arson, burglary, or robbery; and
  3. He reasonably believes that the land or property cannot be protected or recovered by any other means.

Know Your Rights and Responsibilities

In conclusion, while Texas law does have a few justifications for use of force and deadly force, the justifications are only proven in a very limited set of circumstances. Further, even if a person has a justification for using force, he may still be arrested and face trial. Additionally, even though an actor may have been justified in using force, he may still face civil litigation and penalties associated with the use of force against another.

Using force for self defense purposes is a serious response and should only be used in truly dangerous and threatening situations. Texas law makes it abundantly clear that those who use force will only be justified in doing so if they meet specific criteria, given the circumstances, and acted as a reasonable person would have under the same or similar circumstances.

 

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No Duty to Retreat in the Defense of Others

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In Morales v. Statethe Texas Court of Criminal Appeals held that there is NO duty to retreat when you are rightfully defending another person.  The CCA held that:

A person is justified in using deadly force against another if he could be justified in using force against the other in the first place … and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force and if a person in the defendant’s situation would not have had a duty to retreat…

Therefore a person may act against another in defense of a third person, provided he acted upon a reasonable apprehension of danger to such third person, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force by his intervention on behalf of such third person was immediately necessary to protect such person from another’s use or attempted use of unlawful deadly force, and provided it reasonably appear to such person, as seen from his viewpoint alone, that a person in the situation of the person being defended would not have had a duty to retreat.

A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described herein.

Self-Defense and Murder in Texas

Self-Defense and Reckless Offenses

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Self-Defense and MurderUnder Chapter 9 of the Texas Penal Code, self-defense is provided as a justification to the offense of murder (among others).  Chapter 9 makes clear that if a fact-finder believes a defendant’s actions are justified, the fact-finder may not convict for an offense based on those self-defense actions.  In essence, a defendant that pleads self-defense is telling the fact-finder that he intentionally performed certain actions in order to protect himself against the unlawful actions of another.  So…if the defendant intentionally performed the self-defensive actions, can self-defense be applied to an offense like manslaughter that requires “reckless” conduct vice intentional?

In Alonzo v. State, the 13th District Court of Appeals (Corpus Christie) “believed it is illogical for a defendant to argue self-defense when charged with an offense whose requisite mental state is recklessness.”  The Texas Court of Criminal Appeals, however, disagrees, explaining that “there is nothing in Penal Code Section 2.03 or Chapter 9 that limits justification defenses to intentional or knowing crimes, nor do we have a reason to infer such a limitation.” The CCA notes that limiting self-defense to only intentional or knowing crimes could encourage prosecutors to charge manslaughter (a reckless offense) vice murder when there is a self-defense issue, because self-defense would be inapplicable.

Judge Womack explains that “by arguing self-defense, a defendant is arguing that his actions were justified, and therefore he did not act recklessly.” So really, it’s just another way to disprove the charged offense.

Of course, a defendant cannot argue self-defense in the face of a murder charge and then at the same time request a lesser-included instruction on manslaughter. The CCA made sure not to disrupt prior caselaw holding such. But the overarching takeaway from Alonzo is that a defendant that is acquitted of a murder charged based on self-defense CANNOT be convicted of the LIO of manslaughter.

The CCA reversed the decision of the 13th Court and remanded the case for a harm analysis.  Presiding Judge Keller concurred. Alonzo Concurrence