Opinion
No. PD-0684-07.
May 7, 2008.
On Appellant's Petition for Discretionary Review from the First Court of Appeals, Harris County.
Janet Morrow, Spring, for Appellant.
Jessica A. Caird, Asst. D.A., Houston, Jeffrey L. Van Horn, State's Attorney, Austin, for the State.
OPINION
HERVEY, J., delivered the opinion for a unanimous Court.
A jury convicted appellant of attempted capital murder of a police officer. We granted discretionary review to address the decision of the court of appeals that appellant was not entitled to a self-defense instruction on this offense. The ground upon which we granted discretionary review states:
See Porteous v. State, No. 01-06-00419-CR, ___ S.W.3d ___, 2007 WL 926535 (Tex.App.-Houston [1st Dist.], March 29, 2007).
The Court of Appeals erred in holding that Penal Code Sec. 9.31(b)(2), limiting the right to use force "to resist an arrest . . . the actor knows is being made by a peace officer" disentitled appellant to the justification of self defense, because the evidence raised the possibility that appellant did not know an arrest was being made, that even if the jury believed he knew the person suddenly advancing on him with a gun was a peace officer, what appellant perceived in the circumstances was not an arrest (lawful or unlawful) but an attack.
(Emphasis in original).
Having examined the record and briefs and considered the arguments in the case, we have determined that our decision to grant review was improvident. We, therefore, dismiss appellant's petition for discretionary review as improvident.