Summary
finding error in the charge on self-defense based on denial of multiple assailants instruction and examining such error for "some harm" under Almanza
Summary of this case from Pham v. StateOpinion
NO. PD-0899-18
02-05-2020
Patrick JORDAN, Appellant v. The STATE of Texas
OPINION
Keel, J., delivered the opinion of the Court in which Hervey, Richardson, Newell, Walker, and Slaughter, JJ., joined.
A jury convicted Appellant of deadly conduct and sentenced him to four years in prison. He claims the trial court erred in denying him a jury instruction on self-defense against multiple assailants. The court of appeals concluded that Appellant was not entitled to a self-defense instruction at all, and the failure to include multiple assailants language was not error. Jordan v. State , 558 S.W.3d 173, 181 (Tex. App.—Texarkana 2018). We disagree and hold that Appellant was entitled to a jury instruction on multiple assailants, and the failure to include it was harmful. We remand the case to the trial court for further proceedings.
I. Self-Defense
A. Definition
A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force. TEX. PENAL CODE § 9.31(a). A person is justified in using deadly force against another if he would be justified in using force, and he reasonably believes deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. TEX. PENAL CODE § 9.32(a). The evidence does not have to show that the victim was actually using or attempting to use unlawful deadly force because a person has the right to defend himself from apparent danger as he reasonably apprehends it. Hamel v. State , 916 S.W.2d 491, 493 (Tex. Crim. App. 1996).
Self-defense is a confession-and-avoidance defense requiring the defendant to admit to his otherwise illegal conduct. Juarez v. State , 308 S.W.3d 398, 404 (Tex. Crim. App. 2010). He cannot both invoke self-defense and flatly deny the charged conduct. Id. at 406 (confession-and-avoidance requirements satisfied despite Juarez's inconsistent testimony alternatively admitting to the conduct and claiming it was an accident).
B. Raising Self-Defense Against Multiple Assailants
Regardless of the strength or credibility of the evidence, a defendant is entitled to an instruction on any defensive issue that is raised by the evidence. Hamel , 916 S.W.2d at 493. A defensive issue is raised by the evidence if there is sufficient evidence to support a rational jury finding as to each element of the defense. Shaw v. State , 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the defendant's requested defensive instruction. Gamino v. State , 537 S.W.3d 507, 510 (Tex. Crim. App. 2017) (citing Bufkin v. State , 207 S.W.3d 779, 782 (Tex. Crim. App. 2006) ). A trial court errs to refuse a self-defense instruction if there is some evidence, viewed in the light most favorable to the defendant, that will support its elements. Gamino , 537 S.W.3d at 510.
When the evidence viewed from the defendant's standpoint shows an attack or threatened attack by more than one assailant, the defendant is entitled to a multiple assailants instruction. Frank v. State , 688 S.W.2d 863, 868 (Tex. Crim. App. 1985). The issue may be raised even as to those who are not themselves aggressors as long as they seem to be in any way encouraging, aiding, or advising the aggressor. Black v. State , 65 Tex.Crim. 336, 145 S.W. 944, 947 (Tex. Crim. App. 1912) ; see also Petty v. State , 126 Tex.Crim. 185, 70 S.W.2d 718, 719 (Tex. Crim. App. 1934) (evidence viewed from defendant's standpoint showed danger of attack or threatened attack by more than one assailant, and the jury should have been instructed that he had the right to defend against either or all of them); Cartwright v. State , 16 Tex. Ct. App. 473, 487–88 (1884) (error for the jury charge to restrict self-defense to the victim when evidence showed that two others appeared to be acting with the victim).
In Sanders v. State , 632 S.W.2d 346 (Tex. Crim. App. 1982), Sanders was hit in the head with a pool cue and chased into the parking lot by several men who were yelling racial epithets at him. He fired three shots in their direction, killing one of them. Id. at 346. Sanders was entitled to a multiple assailants instruction even though the deceased had not personally attacked him. Id. at 348. Thus, "multiple assailants" does not require evidence that each person defended against was an aggressor in his own right; it requires evidence that the defendant had a reasonable fear of serious bodily injury from a group of people acting together.
C. Background
Appellant had packed up his belongings to move from Texarkana to Broken Bow, Oklahoma. On the way out of town, he and his friend, Cody Bryan, stopped at the Silver Star restaurant where Appellant's ex-girlfriend, Summer Varley, worked as a waitress. He texted her to see if she was working that evening, and she answered that she was not. She said she was in the bar drinking with some friends and suggested that Appellant buy her a drink. Varley's drinking companions were Jordan Royal, Austin Crumpton, Damon Prichard, and Joshua Stevenson.
When Appellant and Bryan arrived at Silver Star, Royal met them at the door, squeezed Appellant's hand "pretty intently," and told Appellant not to speak to Varley. Royal was much larger than Appellant, and Appellant found him to be intimidating. Appellant assured Royal they were just there to eat and were not planning to talk to Varley. Since Varley and her friends were in the bar, Appellant and Bryan sat in the main dining area. Nevertheless, Prichard approached their table "with a pretty aggressive nature" and exchanged words with them. Bryan noticed that Prichard exhibited signs of intoxication. Varley approached them, too, and called Appellant an "asshole." After these interactions, Appellant and Bryan thought "it would be a bad idea to stick around too long" and decided to pay their tab and leave quickly rather than eat at Silver Star.
When Appellant and Bryan exited the restaurant, they found Varley, Royal, Prichard, Stevenson, and Crumpton congregated near the door. According to Varley, Royal was intoxicated and upset at Appellant. She knew that Royal was going to try to attack Appellant and, concerned for Appellant's safety, Varley approached him and told him he needed to leave. Crumpton testified that the group was "mouthing" at Appellant and Bryan; Prichard testified that there was an "altercation, a bunch of talking mess, and then it escalated." According to Prichard, the group moved into the parking lot because "it was heated at the moment."
As Appellant and Bryan tried to walk to their car, Royal punched Bryan, knocking him out. Appellant saw Royal, Crumpton, and Prichard standing over Bryan and saw Royal motion for Stevenson to go around the cars to chase Appellant down. Appellant continued to retreat with Royal and Stevenson in pursuit of him. Crumpton and Varley also followed Royal into the parking lot. Varley testified that "everyone was going after [Appellant]" and agreed that there were multiple assailants on Appellant and Bryan.
Appellant said a hand reached around his face, "fish-hooked" his eye, and turned him around. He realized it was Royal who was grabbing him and on top of him, and he heard footsteps coming up from behind him. As Appellant and Royal were wrestling, Appellant pulled a pistol out of his pocket, chambered a round, and fired three shots. He testified that he did so because he feared for his and Bryan's safety, they were being mobbed by multiple assailants, and he had no other alternative because he had already tried to retreat. One shot hit a parked car, one hit Royal in the leg, and one hit Varley in the chest.
Appellant went back into the restaurant, asked the staff to call 9-1-1, placed the pistol on the counter in the kitchen, held his hands up, and waited for police to arrive. He admitted to the officers that he had fired the gun.
Appellant was charged with aggravated assault with a deadly weapon for shooting Royal and deadly conduct for knowingly discharging a firearm in the direction of Varley and Crumpton. TEX. PENAL CODE §§ 22.02, 22.05(b). The jury charge included self-defense instructions for both offenses based on the conduct of Royal, but the trial judge declined to include Appellant's requested self-defense instruction related to the conduct of Royal "or others with him." The jury found Appellant guilty of deadly conduct but hung on aggravated assault.
D. Self-Defense Against Multiple Assailants Was Raised
In the light most favorable to the verdict, the evidence showed that five people who were united in their hostile intent acted together to intimidate and chase Appellant and Bryan. Right before firing the gun, Appellant heard Royal hit Bryan. When he turned around, he saw Royal, Crumpton, and Prichard standing over an unconscious Bryan, and saw Royal motion for Stevenson to chase Appellant as he was trying to flee. Varley and Crumpton followed. Royal, who was bigger than Appellant, grabbed him by the eye socket, and jumped on top of him. While he was wrestling with Royal, Appellant heard approaching footsteps, and he fired because he felt he had no other choice. On this evidence a rational jury could have found that Appellant reasonably believed that deadly force was immediately necessary to protect himself from the group's apparent or attempted use of deadly force against himself and Bryan.
It does not matter whether Crumpton or Varley individually used deadly force against Appellant; it matters whether Appellant had a reasonable apprehension of actual or apparent danger from a group of assailants that included Crumpton and Varley. "If there is evidence of more assailants than one, the charge must inform the jury that the accused can defend against either, and it is error to require the jury to believe or find that there was more than one assailant attacking the accused." Black , 145 S.W. at 947 ; see also Dickey v. State , 22 S.W.3d 490, 493 (Tex. Crim. App. 1999) (Keller, J., concurring) ("[W]hen ... an attack is being conducted by multiple people as a group, a defendant is justified in using force against any member of the group, even if the recipient of that force is not engaging in conduct that would, by itself, justify the use of force (or deadly force as the case may be)."). The State Prosecuting Attorney as amicus curiae argues that Appellant did not satisfy the confession-and-avoidance requirement for self-defense because he did not admit to knowingly shooting in the direction of Crumpton and Varley. The State took a different position at trial, maintaining that Appellant admitted to all of the elements of deadly conduct on cross examination:
State: "That you did then and there knowingly discharge your firearm?"
Appellant: "Yes, sir"
* * *
State: "You fired your weapon in the direction of one or more individuals. Is that correct, sir?"
Appellant: "Yes, sir."
State: "Those are all the elements that the State has to prove to deadly conduct."
The State Prosecuting Attorney also argues that Section 9.31 requires evidence that the victim was an assailant in his own right because self-defense is couched in terms of using force against "another" and against "the other's" use or attempted use of unlawful force and because self-defense is based on reciprocity. But Section 9.31 encompasses "others" because "another" is defined by the Penal Code, and Penal Code definitions apply to grammatical variations of the defined terms. TEX. PENAL CODE § 1.07(a)(5) (definition of "another"), (b) (grammatical variations apply to defined terms). And self-defense is based on reasonableness. TEX. PENAL CODE §§ 9.31(a), 9.32(a)(2).
The State Prosecuting Attorney maintains that the trial court's instructions gave Appellant what he wanted: the right to defend against Varley and Crumpton because of Royal's actions. But the instructions focused exclusively on Royal's actions whereas the evidence viewed in the light most favorable to Appellant showed that he was facing a mob. This "unduly limited the jury in passing upon appellant's right of self-defense." See McCuin v. State , 505 S.W.2d 831, 832 (Tex. Crim. App. 1974).
Since the evidence demonstrated that Appellant had a reasonable apprehension of apparent danger from multiple assailants, he was entitled to the instruction.
II. Should We Reach the Harm Issue?
The court of appeals did not address harm because it found no error. Ordinarily we would not reach an issue that the court of appeals did not address; but if the resolution of the issue is "clear" or "plain," then judicial economy justifies this Court in reaching the issue in the first instance. See Davison v. State , 405 S.W.3d 682, 691–92 (Tex. Crim. App. 2013) (correct resolution of harm analysis was "clear," so judicial economy justified this Court in addressing it rather than remanding to the court of appeals); ( Johnston v. State , 145 S.W.3d 215, 224 (Tex. Crim. App. 2004) ("plainly harmless" error could be reviewed in first instance by this Court). As discussed below, the harmfulness of the trial court's refusal to instruct on multiple assailants was clear. Furthermore, both parties addressed harm in briefing before this Court. Thus, for the sake of judicial economy we address harm even though the court of appeals did not.
III. Jury Charge Error Harm Standard
The standard of review for jury charge error depends on whether the error was preserved. Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If it was not, then it is reversible only if it caused "egregious harm." Id. If error was preserved, it is reversible if it caused "some harm." Id.
A. Was Error Preserved?
The district attorney maintains that error was not preserved because Appellant's proposed written charge referenced multiple assailants with respect to defense of a third person but not with respect to self-defense. But at the charge conference the prosecution explained the defense request to the judge in terms of both self-defense and defense of a third person, saying Appellant "wants this section regarding self-defense and defense of others in there to include Jordan Royal or others. So his argument is that it needs to say ‘Jordan Royal or others.’ " The trial court thus understood the defense request to apply to both self-defense and defense of a third person, and error was preserved. See Francis v. State , 36 S.W.3d 121, 123 (Tex. Crim. App. 2000) (charge error preserved if trial court understood request). Consequently, we must review the error here for "some harm." Almanza , 686 S.W.2d at 171.
B. "Some Harm" Evaluation
"Some harm" means actual harm and not merely a theoretical complaint. Cornet v. State , 417 S.W.3d 446, 449 (Tex. Crim. App. 2013) ; Sanchez v. State , 376 S.W.3d 767, 775 (Tex. Crim. App. 2012). Reversal is required if the error was calculated to injure the rights of the defendant. Cornet , 417 S.W.3d at 449 (quoting Almanza , 686 S.W.2d at 171 ).
To assess harm, we must evaluate the whole record, including the jury charge, contested issues, weight of the probative evidence, arguments of counsel, and other relevant information. See Cornet , 417 S.W.3d at 450 ; Almanza , 686 S.W.2d at 171. The record in this case demonstrates some harm because the only contested issue was self-defense, and the failure of the self-defense instructions to reference "Royal or others" made rejection of the defense inevitable.
The deadly conduct application paragraph instructed the jury to find Appellant guilty if he knowingly shot in the direction of Varley and Crumpton, conduct that he admitted at trial. But the self-defense application paragraph authorized an acquittal for that conduct only if Appellant reasonably believed it was immediately necessary to shoot Royal. Since a need to shoot at Royal alone would never justify also shooting at Varley and Crumpton, the instruction mandated a rejection of self-defense. Similarly, the self-defense reverse application paragraph specified that self-defense had to be rejected if Appellant did not reasonably believe that shooting at Varley and Crumpton was immediately necessary to protect himself against Royal. Since shooting at Varley and Crumpton would never be necessary to defend against Royal alone, this instruction also mandated a rejection of self-defense.
The deadly conduct application paragraph read as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about September 23, 2015, in Bowie County, Texas, the defendant, PATRICK JORDAN, did then and there, knowingly discharge a firearm at or in the direction of individuals, namely Summer Varley and Austin Crumpton, then you will find the defendant guilty of deadly conduct, as charged in the indictment.
The self-defense application paragraph read as follows:
Now, if you find from the evidence beyond a reasonable doubt that on the occasion in question the defendant, PATRICK JORDAN, did commit the offense of deadly conduct, as alleged in the indictment, but you further find from the evidence, as viewed from the standpoint of the defendant at the time that from the words or conduct, or both, of Jordan Royal it reasonably appeared to the defendant that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Jordan Royal, and that acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself against Jordan Royal's use or attempted use of unlawful deadly force, he shot Jordan Royal with a gun, and that a reasonable person in the defendant's situation would not have retreated, then you should acquit the defendant on the grounds of self-defense on said occasion and under the circumstances, then [sic] you should give the defendant the benefit of that doubt and say by your verdict of [sic] not guilty of Deadly Conduct.
The self-defense reverse application paragraph read as follows:
If you find from the evidence beyond a reasonable doubt that at the time and place in question the defendant did not reasonably believe that he was in danger of death or serious bodily injury, or that a reasonable person in the defendant's situation at the time and place in question would have retreated before using deadly force against Jordan Royal, or that the defendant, under the circumstances as viewed from his standpoint at the time, did not reasonably believe that the degree of force actually used by him was immediately necessary to protect himself against Jordan Royal's use or attempted use of unlawful deadly force, then you should find against the defendant on the issue of self-defense.
By contrast, correct instructions would have authorized an acquittal if Appellant reasonably believed that shooting in the direction of Varley and Crumpton had been immediately necessary to protect himself against "Royal or others" and would have required rejection of self-defense if Appellant did not reasonably believe that shooting at Varley and Crumpton was immediately necessary to protect himself against deadly force by "Royal or others." The difference between the instructions that were given and those that should have been given is the difference between foreclosing self-defense and allowing fair consideration of it. That difference clearly demonstrates that Appellant was harmed by the refusal to instruct on multiple assailants. Thus it is unnecessary to further assess harm in relation to other charge errors such as: the failure to put the burden of persuasion on the State with respect to self-defense, the failure to instruct on the presumption of reasonableness with respect to a defendant's belief that deadly force is immediately necessary, and conditioning self-defense on the duty to retreat. TEX. PENAL CODE §§ 2.03(d), 9.32 (b) – (d).
III. Conclusion
Appellant was entitled to a self-defense instruction that referenced "Royal or others." The failure to give it was calculated to injure Appellant's rights. We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings consistent with this opinion.
Keasler, J., filed a dissenting opinion.
Yeary, J., filed a dissenting opinion in which Keller, P.J., joined.
DISSENTING OPINION
Keasler, J., filed a dissenting opinion.
The doctrine of confession and avoidance is often stated in positive terms, that is, in terms of what the defendant should or must do at trial in order to receive his preferred defensive instruction. So a defensive instruction is appropriate only when the defendant's defensive evidence essentially admits to every element of the offense, including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct.
E.g. , Shaw v. State , 243 S.W.3d 647, 659 (Tex. Crim. App. 2007).
See Texas Criminal Pattern Jury Charges: Criminal Defenses 31.7, at 156—57 (2018) (setting out a proposed multiple-assailant self-defense instruction and observing that, in order to justify the submission of such an instruction, "[t]he evidence must tend to show that others joined the attack or at least were present pursuant to an agreement to do so").
But as the Court's opinion acknowledges, it can also be defined negatively, that is, in terms of what the defendant should or must not do if he wishes to receive his preferred defensive instruction. So, among other things, a criminal defendant cannot testify that he lacked the culpable mental state necessary for the commission of the alleged crime and simultaneously maintain that, despite the fact that he committed no crime, his conduct was justified. If the defendant claims that he did not have the requisite intent to commit the offense that was alleged, he is "not entitled to an instruction on self-defense."
See Majority Opinion at 343.
In essence, the self-defense jury instruction that the trial court gave with respect to the deadly conduct offense operated much like a necessity instruction. It required the jury to acquit Appellant if it determined that his deadly conduct was immediately necessary to avoid the imminent harm he may reasonably have believed Royal was about to inflict upon him. Tex. Penal Code § 9.22. It was arguably even more favorable to Appellant than an ordinary necessity instruction, moreover, in that it did not require evidence of the other elements required to establish such a justification. See id. § 9.22(2) & (3) (requiring evidence that "the desirability and urgency of avoiding the harm clearly outweighs, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and ... a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear").
E.g. , Ex parte Nailor , 149 S.W.3d 125, 133–34 (Tex. Crim. App. 2004) (citing Young v. State , 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) ).
Appellant testified:
Q Okay. Were you aware that there were five people following you out of that restaurant?
A Yes, sir.
Q You thought you were getting mobbed?
A Most definitely.
Q Did you consider all those as assailants?
A Yes, sir.
4 RR 40—41.
Id.
With that in mind, here is what I consider to be the most crucial part of Jordan's testimony on direct examination:
Q Okay. When exactly did you chamber or put a shell in the chamber of the firearm?
A After about -- I don't know if --.
Q Was it pretty close to the time he [Royal] fish-hooked you or after?
A I believe whenever I felt -- as soon as I had got turned around and wrapped up is when I was able to pull it out because it was -- I was bent over and he kind of had me wrapped -- his chest was on the top of my head and he had a hold of one of my arms, but that's when I was able to just wrestle with him a little bit. I was trying to get to a confined space to limit the amount of actions, but that's when I was able to pull out my pistol.
Q And you didn't accidentally chamber a round, did you?
A No, sir.
Q All right. So now you're armed and -- were you armed and ready to fire at that time?
A Yes, sir.
Q Or the gun was?
A Yes, sir.
Q Could you see anything at that time?
A No, sir. It was just me and Jordan [Royal].
Q All right. And did you pull the trigger?
A Yes, sir.
Q Why did you pull the trigger?
A Because at that point, I was honestly scared that -- I know that he was not there for a schoolyard tussle.
And here is what I consider to be the most important part of Jordan's testimony on cross-examination:
Q ... Let's talk about the deadly conduct. You're still the same Patrick Jordan?
A Yes, sir.
Q This is in Bowie County, Texas?
A Yes, sir.
Q It occurred on September 23, 2015?
A Yes, sir.
Q That you did then and there knowingly discharge your firearm?
A Yes, sir.
Q And you fired it at or in the direction of individuals, namely, Summer Varley and Austin Crumpton?
A I don't recall that.
Q Are you denying that you [shot] her, sir?
A No, sir, not at all.
Q So you shot her?
A Yes, sir.
Q And you fired your weapon when other people were around?
A Not that I remember.
Q Who do you remember being out there, sir?
A Jordan [Royal] and Joshua Stevenson.
Q You only saw two people out there? You just told your lawyer that there was five, maybe more.
A The ones that were on me.
Q You fired your weapon in the direction of one or more individuals. Is that correct, sir?
A Yes, sir.
Q Those are all the elements that the State has to prove [for] deadly conduct.
The Court points to this latter exchange as some proof that Jordan adequately "confessed" to the offense of deadly conduct and interposed the defense of multiple-assailants self-defense to justify his otherwise-criminal conduct. I disagree.
See Majority Opinion at 345.
Without going too far into the weeds of a statutory-construction analysis, if all the State proves in a prosecution under Penal Code Section 22.05(b)(1) is that the defendant knowingly discharged a firearm and, whether he knew it or not, he in fact fired in the direction of another individual, the State will have failed in its burden. To commit deadly conduct under Section 22.05(b)(1), the actor must know, not just that he is engaging in the actus reus of discharging a firearm, but also that he is doing so "at or in the direction of" another individual. If he lacks this latter awareness, he is not guilty of that offense.
But see, e.g. , McQueen v. State , 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) ("[W]here otherwise innocent behavior becomes criminal because of the circumstances under which it is done, a culpable mental state is required as to those surrounding circumstances.").
So, in the confession-and-avoidance context, if the defendant admits that he knowingly discharged a firearm but does not admit that he knew he was firing "at or in the direction of" another individual, he will not have confessed to every element of deadly conduct. He will have confessed only to the actus reus ; he will not have confessed to the necessary mens rea for this offense. Relatedly, if the defendant is charged with knowingly discharging a firearm "at or in the direction of" Arthur, but confesses only to knowingly discharging a firearm at Bob, he will not have confessed to the offense with which he was charged. Even if he claims that he shot at Bob in self-defense, he should not receive a self-defense instruction in a prosecution for knowingly shooting at Arthur. It might be different in a case where the State tries to argue transferred intent, but that didn't happen here.
As I contemplate Jordan's account of the events in question, I cannot agree with the Court that Jordan adequately confessed to knowingly discharging a firearm "at or in the direction of" Varley and Crumpton. On direct examination, Jordan frankly admitted that he intentionally fired his weapon at Royal. But he denied being able to "see anything" else when he and Royal were entangled: "It was just me and [him]." What's more, on cross, Jordan repeatedly denied being aware that he had fired in the direction of other people—including Varley and Crumpton—even if he ultimately conceded that he had, in fact, done so. At best, he admitted some incidental awareness that, when he shot Royal, he was also shooting "at or in the direction of" Joshua Stevenson. But given that the named deadly-conduct complainants were Varley and Crumpton, Jordan's concession as to Stevenson does not give rise to a valid claim of self-defense as to them.
Overall, the tenor of Jordan's defense was not that he knowingly fired at a "mob" because he believed that doing so was immediately necessary to protect himself against the mob's use or attempted use of unlawful force. It was that Jordan knowingly fired at Royal (and perhaps Stevenson) because he believed that doing so was immediately necessary to protect himself against Royal's (and perhaps Stevenson's) use or attempted use of force—and, unbeknownst to him, some of his self-defensive gunshots went "at or in the direction of" Varley and Crumpton. On its face, that posture is inconsistent with the argument that Jordan was justified in committing deadly conduct against Varley and Crumpton because he was exercising his right of self-defense. Instead, his testimony was consistent with the simple notion that, because he lacked any awareness that his self-defensive gunshots went in Varley and Crumpton's direction, ultimately, the State could not "prove that any penal-code violation occurred that would require justification." That is not multiple-assailants self-defense. It is the time-honored defense of "You didn't prove your case."
Gamino v. State , 537 S.W.3d 507, 514 (Tex. Crim. App. 2017) (Keasler, J., dissenting).
To be sure, there are some parts of Jordan's testimony and defensive posture that come close to adequately confessing to the charged offense. For instance, Jordan affirmed on direct examination that he was "aware that there were five people following [him] out of [the] restaurant." He testified that he considered all five to be "assailants," and that he thought he was getting "mobbed." But, while this testimony might contribute to the reasonableness of Jordan's belief that shooting the gun was immediately necessary, it stops well short of Jordan admitting that he knowingly fired at the "mob," much less Varley and Crumpton, in self-defense. In closing argument, defense counsel argued that Jordan had "admitted everything as far as the elements of the offense goes." But the question in this case is whether the trial judge erred by unduly narrowing Jordan's self-defense instruction. The answer to that question cannot turn on events occurring after the jury was charged. The trial judge cannot be faulted for failing to anticipate a closing argument.
Because Jordan did not admit to harboring the requisite culpable mental state for the particular deadly-conduct offense with which he was charged, I do not think he was entitled to a multiple-assailants self-defense instruction. Therefore, I dissent to the Court's holding that he was.
DISSENTING OPINION
Yeary, J., filed a dissenting opinion in which Keller, P.J., joined.
In our capacity as a discretionary review court, this Court "may ... review a decision" of the courts of appeals. TEX. CONST. art. 5, § 5 (b); see also TEX. R. APP. P. 66.1 ("The Court of Criminal Appeals may review a court of appeals' decision in a criminal case[.]"). We do not ordinarily address issues that the court of appeals did not. Gilley v. State , 418 S.W.3d 114, 119 (Tex. Crim. App. 2014). That includes issues of harm. Johnston v. State , 145 S.W.3d 215, 224 (Tex. Crim. App. 2004). If a court of appeals finds no error, but we hold that error occurred, we usually remand the cause for the court of appeals to address harm (or whether a harm analysis should even apply, in some instances) for the first time. Id. As the Court points out today, we have recognized an exception to this practice that is designed to preserve judicial resources: We will sometimes proceed to resolve the harm issue ourselves when it is plainly evident how that issue should be resolved. Majority Opinion at 346 (citing Johnston , 145 S.W.3d at 224 ).
This case involves a question whether the trial court properly instructed the jury on the law of self-defense as it applies in a prosecution for deadly conduct under Section 22.05(b)(1) of the Texas Penal Code. TEX. PENAL CODE § 22.05(b)(1). Appellant argued that the self-defense instruction submitted in the jury charge was defective in four distinct ways—including its failure to instruct the jury on the law of multiple assailants. The court of appeals rejected all four of Appellant's jury-charge complaints in one fell swoop, by holding that the facts simply did not raise self-defense at all. Jordan v. State , 558 S.W.3d 173, 180 (Tex. App.—Texarkana 2018). Rather than specifically addressing the court of appeals' decision that the facts of the case failed to raise self-defense at all, the Court today analyzes the question whether Appellant is correct that he should have obtained a multiple-assailants instruction. This is understandable because the court of appeals' analysis whether self-defense was raised at all arguably begs the question whether Appellant was entitled to a multiple-assailants instruction. Pointing out that Appellant was convicted of deadly conduct "against" Varley and Crumpton, the court of appeals concluded that the evidence did not show that either of these two individuals personally used deadly force against Appellant. Id. But if the law of multiple assailants applies, then arguably it does not matter whether those two individuals had yet themselves used deadly force against Appellant, so long as he might have reasonably believed that they were acting in concert with Royal to cause him serious bodily injury or death, and that his own use of deadly force was immediately necessary—against any or all of his assailants—to protect himself. For this reason, I do not fault the Court for proceeding to address this issue, since it appears necessary to refute the court of appeals' resolution of the issue it did resolve.
I do not agree, however, that it is appropriate for the Court to address the harm issue for the first time in its opinion today. The Court justifies its first-time treatment of the harm question, invoking Johnston 's judicial economy rationale, by asserting that the harm in failing to submit a multiple-assailants instruction in this case was "clear." Majority Opinion at 346. The Court claims that, in the absence of a multiple-assailants component to the self-defense instruction, any reliance Appellant may have placed on the law of self-defense was "foreclosed." Id. at 348.
But a self-defense instruction was given as to the deadly conduct offense. The Court quotes that instruction in its entirety in footnotes within its opinion. Id. at 12 nn. 2 & 3. The self-defense instruction that was given plainly instructed the jury to acquit Appellant of the deadly conduct charge so long as it reasonably believed that his use of deadly force against Royal was a reasonable response to his reasonable perception that Royal was about to use deadly force against him. Had the jury believed that to be the case, it would have been obliged by this instruction to acquit Appellant of deadly conduct—regardless of what it may have believed about the conduct of Varley and Crumpton. An acquittal based upon self-defense was hardly "foreclosed" by this instruction.
In fact, the instruction given incorporated what was undoubtedly the strongest case for self-defense, since Royal was by far the main aggressor in the melee. At the same time, it did not require the jury to find that Varley and Crumpton were acting in concert with Royal as a predicate to mandating an acquittal for deadly conduct, as a multiple-assailants instruction would have done.1 In that sense, at least, it was arguably more favorable to Appellant than an actual multiple-assailants instruction would have been.2 It is also possible to argue that the jury would have been more likely to believe that Appellant's perception that deadly force was being used against him was reasonable if it had been permitted by the instruction to take into account the conduct of the entire "mob."3 But Royal is the one who punched Appellant's companion, Bryan, and knocked him out. And, according to Appellant's testimony, Royal is the one who then grabbed him, causing him to retrieve the gun from his pocket, chamber a round, and begin shooting. So, adding Varley's and Crumpton's conduct, such as it was, to the mix of potential deadly force arrayed against Appellant might not, at least arguably, have made much of a difference in the jury's response to Appellant's self-defense claim. In any event, the question of harm seems, at least, debatable—not, as the Court would have it, so self-evident as to obviate our usual practice to remand the cause for that analysis.
I would remand this cause, not to the trial court for further proceedings, as the Court does today, id. at 19, but to the court of appeals. I would leave it to the court of appeals in the first instance to decide on remand whether the lack of a multiple-assailants instruction was harmful. Should the court of appeals decide that it was harmful, then it would, as this Court does today, remand it to the trial court. But should it decide it was harmless, that court would then be obliged to determine whether any of Appellant's other complaints about the self-defense instruction are meritorious.
I respectfully dissent to reversing the conviction and remanding the cause to the trial court.