2015 #21 self defense weekly law report

Law of Self Defense: Weekly Law Report 2015 #21 (May 11-15, 2015)__________________________________________________________________________________________

__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 1 of 30

Frequently Asked Questions

Q: What is the Law of Self Defense: Law Report Weekly?

A: Each week Law of Self Defense staff review self-defense court decisions from around the country. Those we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report.

Q: Do you recount each of the cases in their entirety?

A: No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we only summarize the portions of the cases that directly involve issues of self-defense law. We also strip out

much of the introductory commentary of the case, for purposes of efficiency. What we do include are the case citation, a list of the key self-defense law issues covered in that case, the date of the decision, and the

text of the decision that discusses the specific self-defense laws of interest.

The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.

Q: What if I want to read the entire case?

A: Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact, strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best

way to understand the fullest context of the courts decisions.

Q: How are the cases here organized, and how can I quickly know what issues are addressed in each?

A: The cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents and then by individual case.

Q: Having access to these cases is great, but I still find a lot of the legal terminology and principles of self-defense law confusing. Whats a good resource to really understand the law of self-defense?

A: For almost two decades Law of Self Defense has been providing non-lawyers as well as police officers, defense attorneys, prosecutors, and judges with world-class instruction on self-defense law. We encourage

you to start with our best-selling book, The Law of Self-Defense, 2nd Edition, (also available from Amazon in print and Kindle, the NRA Store, and Gun Digest) which covers all 50 states at a high level. You may also

consider one of our state-specific live Law of Self Defense Seminars held all over the country or state-specific online training classes. And, of course, theres always the Law of Self Defense Blog.



Table of Contents

CALIFORNIA

People v. Aragon, 2015 Cal. App. Unpub. LEXIS 3404 (CA Ct. App. 2015)Key issues: deadly weapon (bicycle)Date: May 15, 2015

People v. Gonzalez, 2015 Cal. App. Unpub. LEXIS 3320 (CA Ct. App. 2015)Key Issues: Imperfect self-defenseDate: May 11, 2015

FLORIDA

Swearingden v. State, 2015 Fla. App. LEXIS 6971 (FL Ct. App. 2015)Key Issues: Innocence, regaining (withdrawal/escalation); stand-your-groundDate: May 12, 2015

Helton v. State, 2015 Fla. App. LEXIS 6990 (FL Ct. App. 2015)Key Issues: Innocence, regaining (withdrawal/escalation); stand-your-groundDate: May 12, 2015

Tramel v. State, 2015 Fla. App. LEXIS 6987 (FL Ct. App. 2015)Key Issues: Innocence, regaining (withdrawal/escalation); stand-your-groundDate: May 12, 2015

INDIANA

Satterfield v. State, 2015 Ind. App. LEXIS 394 (IN Ct. App. 2015)Key Issues: Whether claim of self-defense should be considered in granting bail.Date: May 12, 2015

OHIO

State v. Betliskey, 2015 Ohio 1821 (OH Ct. App. 2015)Key Issues: Defense of others; alter ego; duty to retreat; burden of persuasion on defendant.Date: May 14, 2015

PENNSYLVANIA

Commonwealth v. Thornton, 2015 Pa. Super. Unpub. LEXIS 1302 (PA Superior Ct. 2015)Key Issues: Concession of use of force in order to claim self-defense; burden of persuasion on the state.Date: May 11, 2015

TEXAS

Carrasco-Flores v. State, 2015 Tex. App. LEXIS 4975 (TX. Ct. App. 2015)Key Issues: Concession of use of force in order to claim self-defense; initial aggressor; burdenDate: May 14, 2015

Guzman v. State, 2015 Tex. App. LEXIS 4840 (TX Ct. App. 2015)Key Issues: Concession of use of force in order to claim self-defenseDate: May 13, 2015

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CALIFORNIA

People v. Aragon, 2015 Cal. App. Unpub. LEXIS 3404 (CA Ct. App. 2015)Key issues: deadly weapon (bicycle)

Date: May 15, 2015

Decision:

[ . . . ]

The sole issue on appeal is whether there is sufficient evidence to support the jury's finding appellant

assaulted Manuel with a deadly weapon.

[ . . . ]

Appellant was found guilty of violating Penal Code section 245, subdivision (a)(1), which makes it a

crime to assault a person "with a deadly weapon or instrument other than a firearm[.]" That provision

encompasses "any object, instrument, or weapon which is used in such a manner as to be capable of

producing and likely to produce, death or great bodily injury" (In re Jose R. (1982) 137 Cal.App.3d 269,

275-76), meaning injury that is "significant or substantial" in nature. (People v. Duke (1985) 174

Cal.App.3d 296, 302.)

As our Supreme Court has explained, some objects, "such as dirks and blackjacks, have been held to be

deadly weapons as a matter of law; the ordinary use for which they are designed establishes their

character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain

circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object

not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object,

the manner in which it is used, and all other facts relevant to the issue. [Citations.]" (People v. Aguilar

(1997) 16 Cal.4th 1023, 1028-1029.) Bicycles are not inherently deadly objects. But looking at the

circumstances of this case, it is clear appellant's actions created a very dangerous situation for the

victim. For starters, the bicycle he threw at Manuel was no mere tricycle or lightweight starter bike.

Rather, it was a metal beach cruiser that belonged to Manuel's nine-year-old daughter and that Manuel

described as "heavy." (See People v. Graham (1969) 71 Cal.2d 303, 327-328 [listing "heavy objects"

among the sort of ordinary items that can constitute a deadly weapon if they are used in a dangerous

manner].) Although appellant attempts to downplay the dangerousness of the bicycle by characterizing it

as a "blunt" object, it has several components -- handlebars, pedals, chain, kickstand -- that are sharp,

jagged and irregular and that could easily cause great bodily injury if they forcefully came into contact with a

person. Anyone who has ever fallen onto their bicycle before can attest to the fact it is much more

hazardous than falling onto a featureless or flat surface.

As for the manner in which Manuel used the bicycle,

the record shows that after repeatedly menacing Manuel and his family, appellant picked up the bicycle

and threw it two or three feet across the width of a picnic table. Appellant heaved the bicycle with such



force that even after it struck Manuel's forearm, it continued going "over [his] head." These facts could

easily be interpreted as an attempt by appellant to inflict serious physical harm on Manuel. Granted,

Manuel suffered only a minor injury from the assault. But guilt for assault with a deadly weapon does not

depend on the extent of the victim's injuries. (People v. Muir (1966) 244 Cal.App.2d 598, 604.) Instead,

liability is predicated on the likelihood of serious injury resulting from the defendant's action. It is "the injury-

producing potential" of those actions that is the focus of our analysis. (People v. Russell (2005) 129

Cal.App.4th 776, 788.)

Appellant insists he threw the bicycle "with only enough force to cause a bruise." That's true in the

sense Manuel only suffered a bruise as a result of what appellant did. But to characterize the severity of

appellant's actions in that limited fashion is somewhat misleading because it fails to take account of the

context in which his conduct occurred. Widening the lens on appellant's behavior, it would be more

accurate to say he threw the bicycle with only enough force to bruise Manuel's forearm after Manuel raised

his arms in self-defense. Had Manuel not taken

defensive measures in response to appellant's aggressive and threatening behavior, it is quite likely

he would have suffered serious injury to another part of his body. Indeed, there can be little doubt that, by

hurling the bicycle toward Manuel's upper body, appellant created a very dangerous situation for

Manuel.

[ . . . ]

Under these circumstances, we are convinced there is sufficient evidence to support the jury's

determination the bicycle constituted a deadly weapon. Although bicycles are generally not thought

of as weapons, appellant's actions demonstrate that, like many other ordinary objects, such as pillows

(People v. Helms (1966) 242 Cal.App.2d 476), pins (In re Jose R., supra, 137 Cal.App.3d at p. 277) and

pencils (People v. Page (2004) 123 Cal.App.4th 1466), bicycles can be utilized in a manner that

makes them a serious danger to others. We therefore have no occasion to disturb the jury's verdict.

[ . . . ]

__________________________________________________________________________________________



CALIFORNIA

People v. Gonzalez, 2015 Cal. App. Unpub. LEXIS 3320 (CA Ct. App. 2015)

Key Issues: Imperfect self-defense

Date: May 11, 2015

Decision:

[ . . . ]

B. The Evidence Did Not Support an Imperfect Self-Defense Instruction

Appellants contend that the trial court was required to

instruct the jury on the theories of imperfect self-defense and imperfect defense of another because

there was evidence that Ramos was a large man at six feet two inches and 275 pounds, and that during

the fight, Munoz saw some Pico Nuevo gang members being stomped on while they were on the

ground. Appellants claim that the jury reasonably could have concluded from such evidence that

imperfect self-defense or imperfect defense of another was a foreseeable consequence of the

assault on Ramos, but that murder was not. We conclude, however, that the imperfect self-defense

doctrine did not apply in this case.

As discussed, there was no evidence that Ramos was the initial aggressor in the fight or ever responded

with deadly force in defending himself against the physical attack by appellants' group. Although there

was conflicting testimony about the extent of each appellant's involvement in the attack, none of the

eyewitnesses testified that Ramos (or any other guest at the party) initiated the fight or was armed with a

weapon during the fight. Rather, the witnesses who

saw how the fight began testified that Ramos did not use any physical force against anyone until the group

rushed into the backyard and one or more men in the group assaulted Ramos by pushing, punching, or

jabbing him. The witnesses further testified that, once the fight started, they saw multiple men assaulting

Ramos, who threw punches at those men, but did not use any other force. While Munoz testified that, at one

point, he saw someone kicking or stomping on a Pico Nuevo gang member who was on the ground, he did

not identify Ramos as that person. Munoz also testified that members of both groups were on the

ground at various times, and agreed that it was "just sort of a big fight." In addition, the witnesses who saw

Ramos being stabbed testified that both Ramos and the person who stabbed him were standing upright at

the time. None of the witnesses saw Ramos with a weapon, nor did they see Ramos assault Sanchez or

any of his companions while they were on the ground.

Accordingly, there was no evidence that Ramos used deadly force during the assault or acted in a way that

was not legally justified. (People v. Booker, supra, 51 Cal.4th at p. 182 [where "defendant initiated the

attack . . . and there was no evidence that [victims'] subsequent actions were not legally justified, he may

not claim imperfect self-defense"]; People v. Seaton (2001) 26 Cal.4th 598, 664 ["[b]ecause defendant's

testimony showed him to be the initial aggressor and



the victim's response legally justified, [he] could not rely on unreasonable self-defense"].) There also was

no evidence that Sanchez stabbed Ramos because he actually feared he was in danger of imminent

death or great bodily injury, or honestly believed that any of his companions were in danger of such harm.

Nor was there any evidence that Gonzalez, Resendez, or Calleros acted under an actual belief of

imminent danger when they aided and abetted the assault. Instead, appellants assert that there must

have been sufficient evidence of their honest belief in the need to defend because the trial court instructed

the jury on perfect self-defense and perfect defense of others. However, "just because a trial court

instructs a jury on perfect self-defense, this does not necessarily mean it has a sua sponte duty to also

instruct on imperfect self-defense." (People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1231; see

also People v. Szadziewicz (2008) 161 Cal.App.4th 823, 834 ["an imperfect self-defense instruction is not

required just because the court is instructing on actual self-defense"].) Where, as here, there is no

substantial evidence of an honest belief in the need to defend oneself or others from an imminent danger of

death or great bodily injury, an instruction on imperfect self-defense or defense of another is not

required. (People v. De Leon (1992) 10 Cal.App.4th 815, 825 [even though trial court gave a perfect self-

defense instruction, it properly omitted instruction on imperfect self-defense where "there was no

substantial evidence [defendant] honestly believed he was in imminent peril").] The trial court therefore did

not err in refusing to instruct the jury on this theory.

[ . . . ]

______________________________________________________________________



FLORIDA

Swearingden v. State, 2015 Fla. App. LEXIS 6971 (FL Ct. App. 2015)

Key Issues: Innocence, regaining (withdrawal/escalation); stand-your-ground

Date: May 12, 2015

LOSD Note: This is one of a several decisions this week by the First District Court of Appeal in Florida in which they appear confused about how to align two distinct legal doctrines: (1) Stand-Your-Ground, which relieves a person of an otherwise existing duty to retreat; and (2) The ability of an initial aggressor to regain innocence, on

the condition that they withdraw from the fight or if the other party escalates a non-deadly force fight to a deadly force level. As my students will already understood, this apparent conundrum is easily resolved--SYG applies

only to non-aggressors, with initial aggressors being left then with the safe harbor of regaining innocence via withdrawal or in the event of the other partys escalation. Nevertheless, this Court of Appeal has decided the

issue needs to be pushed up to the Florida Supreme Court.

Decision:

Appellant was convicted of second-degree murder and sentenced to life in prison for stabbing a man in

the head with a knife during an alcohol-fueled argument over a woman. Appellant claimed that he

stabbed the victim in self-defense. There was conflicting evidence as to whether the victim or

Appellant was the initial aggressor. The trial court instructed the jury that:

If the defendant was not engaged in an unlawful

activity and was attacked in a place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably

believed that it was necessary to do so to prevent death or great bodily harm to himself.

* * *However, use of deadly force is not justifiable if

you find the defendant initially provoked the use of force against himself unless, one, force

asserted toward the defendant was so great that he reasonably believed that he was in imminent

danger of death or great bodily harm and had exhausted every reasonable means to escape the danger of [sic]1 using deadly force on [the victim] or, number two, in good faith, the

defendant withdrew from physical contact with [the victim] and clearly indicated to [the victim]

that he wanted to withdraw and stop the use of deadly force but [the victim] continued or resumed

the use of force.

(emphasis added).

Appellant contends that the trial court committed fundamental error2 in giving these instructions

because the portions of the instructions emphasized above negate each other with respect to his duty to

retreat or not. We are compelled to agree . . .



Accordingly, we reverse Appellant's judgment and sentence and remand for a new trial.3

Additionally, we certify that this case passes on the

same question of great public importance that we certified to the Florida Supreme Court in Floyd:

DOES FLORIDA STANDARD JURY

INSTRUCTION (CRIMINAL) 3.6(F) PROVIDE CONFLICTING INSTRUCTIONS AS TO THE

DUTY TO RETREAT?

Floyd v. State, Case No. 1D11-4465 (Oct. 17, 2014)

(order granting Appellee's motion to certify a question of great public importance). More specifically, the

question of great public importance framed by this case is:

IN A CASE WHERE THE DEFENDANT'S SOLE

DEFENSE IS SELF-DEFENSE AND THERE IS A

DISPUTE AS TO WHETHER THE DEFENDANT OR THE VICTIM WAS THE INITIAL

AGGRESSOR, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY INSTRUCTING

THE JURY BOTH (1) THAT THE DEFENDANT DID NOT HAVE A DUTY TO RETREAT AND

THAT HE COULD MEET FORCE WITH DEADLY FORCE IF HE REASONABLY BELIEVED THAT

IT WAS NECESSARY TO DO SO TO PREVENT DEATH OR GREAT BODILY HARM TO

HIMSELF, AND (2) THAT THE DEFENDANT'S USE OF DEADLY FORCE WAS NOT

JUSTIFIABLE IF HE WAS THE INITIAL AGGRESSOR UNLESS HE EXHAUSTED

EVERY REASONABLE MEANS TO ESCAPE THE DANGER OTHER THAN USING DEADLY

FORCE?

REVERSED and REMANDED for a new trial; QUESTION CERTIFIED.

__________________________________________________________________________________________



FLORIDA

Helton v. State, 2015 Fla. App. LEXIS 6990 (FL Ct. App. 2015)


LOSD Note: Again, this is another of the decisions this week by the First District Court of Appeal in Florida in which they appear confused about how to align t(1) Stand-Your-Ground, which relieves a person of an otherwise existing duty to retreat; and (2) The ability of an initial aggressor to regain

innocence, on the condition that they withdraw from the fight or if the other party escalates a non-deadly force fight to a deadly force level.

Date: May 12, 2015

Decision:

The State charged Appellant, Timothy Donald Helton, with one count of aggravated battery and one count of

simple battery arising from an incident that occurred on May 31, 2011, involving two victims. Helton's first

trial resulted in a hung jury, . . . [t]he second trial yielded guilty verdicts on both counts. The trial court

reclassified the aggravated battery, a second-degree felony, to a first-degree felony based on the jury's

specific finding that Helton used a deadly weapon in committing the crime, and imposed a life sentence.

On appeal, Helton challenges only the conviction and

sentence for aggravated battery. He argues that the instructions the court gave the jury on the justifiable

use of deadly force and the duty to retreat were inconsistent and constituted fundamental error . . .

Helton's only defense at trial was that he acted in self-

defense, as permitted by the "stand your ground" law.1 Accordingly, the trial court gave the standard

instructions2 on the justifiable use of force and the circumstances under which Helton could stand his

ground in the face of like force, or was required to

retreat, if possible. In pertinent part, the court instructed the jury as follows:

An issue in this case is whether the defendant

acted in self-defense. It is a defense to the offense with which TIMOTHY DONALD HELTON

is charged if the injury to CRAIG RICHARD NELSON, JR resulted from the justifiable use

deadly force.

"Deadly force" means force likely to cause death or great bodily harm.

A person is justified in using deadly force if he

reasonably believes that such force is necessary to prevent imminent death or great bodily harm to

himself or another.

However, the use of deadly force is not justifiable if you find:

1. TIMOTHY DONALD HELTON initially provoked

the use of force against himself, unless:



(a) The force asserted toward the defendant was

so great that he reasonably believed that he was in imminent danger of death or great bodily harm

and had exhausted every reasonable means to escape the danger, other than using deadly force

on CRAIG RICHARD NELSON, JR. [or]

(b) In good faith, the defendant withdrew from physical contact with CRAIG RICHARD

NELSON, JR and clearly indicated to CRAIG RICHARD NELSON, JR that he wanted to

withdraw and stop the use of deadly force, but CRAIG RICHARD NELSON, JR

continued or resumed the use of force.(c)

. . .

If the defendant was not engaged in an unlawful activity and was attacked in any place where he

had a right to be, he had no duty to retreat and had the right to stand his ground and meet force

with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent

death or great bodily harm to himself.

(Emphasis added).

In Floyd v. State, 151 So. 3d 452 (Fla. 1st DCA 2014), rev. granted, So. 3d , 2014 Fla. LEXIS 3793,

2014 WL 7251662 (Fla. Dec. 16, 2014), and more recently in Tramel v. State, No. 1D13-2285 (Fla. 1st

DCA March , 2015), we held the identical instructions constituted fundamental error because an

inconsistency regarding the duty to retreat essentially negated the defendants' sole defense. As we

reasoned in Floyd:

[T]he jury was instructed that if the use of deadly force is necessary to prevent imminent

death or great bodily harm to oneself or others, then deadly force is justified without regard to any

effort to retreat so long as the defendant is not engaged in unlawful activity. A defendant may not

use deadly force if the defendant provoked another showing force; however, if the defendant

provoked another, who then uses force so great as to put the defendant in fear of death or great

bodily harm, then the defendant may use deadly force, but only if the defendant has first exhausted

every means of escape. In effect, the jury instruction here provided that Floyd did not have

to retreat before meeting deadly force with deadly force if in fear of death or great bodily harm and

did have a duty to try to retreat before using deadly force if in fear of death or great bodily

harm.

151 So. 3d at 454 (emphasis in original). Because the contradiction in the instructions effectively negated

possible application to Floyd's only defense--self-defense under the "stand your ground" law--

fundamental error occurred, requiring reversal of Floyd's convictions. Id. (citing Carter v. State, 469 So.

2d 194, 196 (Fla. 2d DCA 1985)).

The circumstances are the same here, constraining us to apply our holding in Floyd and find that the

contradictory justifiable-use-of-force jury instructions the trial court gave negated Helton's only defense and

resulted in fundamental error.

Based on our decision in Floyd,3 we reverse Helton's conviction and sentence for aggravated battery, and

remand for a new trial on that count only.

__________________________________________________________________________________________



FLORIDA

Tramel v. State, 2015 Fla. App. LEXIS 6987 (FL Ct. App. 2015)


LOSD Note: Again, this is another of the decisions this week by the First District Court of Appeal in Florida in which they appear confused about how to align t(1) Stand-Your-Ground, which relieves a person of an otherwise existing duty to retreat; and (2) The ability of an initial aggressor to regain

innocence, on the condition that they withdraw from the fight or if the other party escalates a non-deadly force fight to a deadly force level.

Date: May 12, 2015

Decision:

Michael Tramel seeks reversal of his convictions and sentences for attempted second-degree murder and

aggravated battery with a deadly weapon raising several issues. We affirm the aggravated battery

conviction and sentence without discussion. However, finding fundamental error in the jury instructions given

on the justifiable use of deadly force, we reverse the attempted second-degree murder conviction and

sentence, and remand for a new trial on that count.

According to witnesses at Tramel's trial, Tramel fought with and stabbed victim Jonathan Key during the

funeral for Tramel's half-brother, Enoch. Tramel and Key got into a graveside argument and scuffle, which

Tramel initiated by first pushing then punching Key. The fight was broken up by fellow mourners. Several

witnesses testified they saw Tramel in possession of a small knife or a pocketknife during the fight. After

Tramel and Key were separated, Tramel went to his car and returned with what some witnesses testified

was another, larger knife. The fight between the two men resumed, and ended with Key being stabbed.

Testifying in his own defense, Tramel said that it was

Key who initiated the first altercation, that Key had a knife, that Tramel armed himself with a knife after the

fight broke up when he became aware Key and others were chasing him, that Key reinitiated the fight,

and that he did not purposely stab Key.

Tramel claimed self-defense pursuant to the "stand your ground" law.1 In accordance with the discussion

between the parties and the court during the charge conference, the trial court instructed the jury as

follows,2 in pertinent part, regarding the use of deadly force in self-defense and the duty to retreat:

An issue in this case is whether the Defendant

acted in self-defense. It is a defense to the offense with which MICHAEL GARRICK

TRAMEL is charged if the injury to Jonathan Key resulted from the justifiable use of deadly force.

"Deadly force" means force likely to cause

death or great bodily harm. A person is justified in using deadly force if he reasonably

believes that such force is necessary to



prevent imminent death or great bodily harm to himself or another.

However, the use of deadly force is not

justifiable if you find:

MICHAEL GARRICK TRAMEL initially provoked the use of force against himself

unless:

a. The force asserted toward the Defendant was so great that he reasonably believed that

he was in imminent danger of death or great bodily harm and had exhausted every

reasonable means to escape the danger, other than using deadly force on Jonathan

Key.b. In good faith, the Defendant withdrew from

physical contact with Jonathan Key and clearly indicated to Jonathan Key that he

wanted to withdraw and stop the use of deadly force, but Jonathan Key resumed the

use of deadly force.

If the Defendant was not engaged in an unlawful activity and was attacked in any place where he

had a right to be, he had no duty to retreat and had the right to stand his ground and meet force

with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent

death or great bodily harm to himself.

If you find that the Defendant who because of threats or prior difficulties with Jonathan Key had

reasonable grounds to believe that he was in danger of death or great bodily harm at the hands

of Jonathan Key then the Defendant had the right

to arm himself. However, the Defendant cannot justify the use of deadly force, if after arming

himself he renewed his difficulty with Jonathan Key when he could have avoided the difficulty,

although as previously explained if the Defendant was not engaged in an unlawful activity and was

attacked in any place where he had a right to be, he had no duty to retreat.

Relying on this court's decision in Floyd v. State, 151

So. 3d 452 (Fla. 1st DCA 2014), rev. granted, So. 3d , 2014 Fla. LEXIS 3793, 2014 WL 7251662 (Fla.

Dec. 16, 2014), Tramel argues the trial court gave conflicting instructions when it told the jury both that

he had no duty to retreat in the face of imminent death or great bodily harm, and that he had to

exhaust every reasonable means to escape danger before using deadly force. In doing so, he argues, the

court committed fundamental error.

The only defense clearly asserted by Tramel and argued by defense counsel was self-defense. Based

on our decision in Floyd,3 we conclude the justifiable-use-of-deadly-force instructions given in this case

inconsistently provided that Tramel did not have to retreat before meeting deadly force with deadly force

if in fear of death or great bodily harm and did have a duty to try to retreat before using deadly force if in

fear of death or great bodily harm. This inconsistency rendered the instructions inapplicable to Tramel's sole

defense, and consequently, fundamental error occurred. For this reason, we reverse Tramel's

conviction and sentence for attempted second-degree murder, and remand for a new trial on that count only.

__________________________________________________________________________________________



INDIANA

Satterfield v. State, 2015 Ind. App. LEXIS 394 (IN Ct. App. 2015)

Key Issues: Whether claim of self-defense should be considered in granting bail.

Date: May 12, 2015

Decision:

STATEMENT OF THE CASE

Appellant-Defendant, James Satterfield (Satterfield), appeals the trial court's denial of his motion to let bail

following his arrest and charge for murder.

APPEAL

I. The Fry Decision

The Indiana Constitution specifically provides that "[o]ffenses, other than murder or treason, shall be

bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the

presumption strong." Ind. Const. art. I, 17. "This qualification was proper because murder is 'the most

serious charge that can be lodged by the [S]tate against an individual and carries with it the possibility

of the imposition of a sentence of death, society's hashest penalty,' and the purpose of bail would likely

be disserved by an unqualified right in such a case." Fry v. State, 990 N.E.2d 429, 435 (Ind. 2013) (quoting

Phillips v. State, 550 N.E.2d 1290, 1294-95 (Ind. 1990), abrogated on different grounds by Fry v. State,

990 N.E.2d 429 (Ind. 2013)). Until recently, the burden was placed on the defendant to show that

either of those two separate and distinct circumstances exist--i.e., to show that in his or her

murder case the proof is not evident, or the

presumption is not strong. Fry, 990 N.E.2d at 435.

In Fry, our supreme court disregarded the well-established maxim of stare decisis and, in one fell

swoop, overruled nearly 150 years of precedent going back to the Civil War era. Shifting the burden of proof,

the Fry court held that "when a criminal defendant is charged with murder or treason, whether by

indictment or information, the burden lies with the State to show that 'the proof is evident, or the

presumption strong,' if it seeks to deny bail to that defendant." Id. at 443-44. Reversing the course of

Indiana precedent, the court concluded that "the contrary procedure used in the past [is] incompatible

with the fundamental guarantee presuming an accused's innocence until proven guilty beyond a

reasonable doubt." Id. at 444.

Recognizing this complete disapproval of stare decisis, the Fry court also set out "to articulate what is

contemplated by the burden [this court] ha[s] now assigned to the State" and endeavored to "provide

some guidance by placing this standard somewhere on the proof spectrum, which is bounded generally at

the low end by 'reasonable suspicion' and at the high end by 'beyond a reasonable doubt.'" Id. at 444, 445.

"Like Goldilocks in the home of the three bears, [the Fry court] search[ed] for a formulation that is not too



low, and not too high, but instead is just right." Id. at 446. After review of our sister states' jurisprudence in

this area, our supreme court concluded that

the State must show that the defendant "more likely than not" committed the crime of murder (or

treason). Such a showing, at such an early stage of the process, seems sufficient to justify the

denial of bail given the severity of the proposed offense and the attendant consequences. After

all, at that point the trial court--while not pre-judging the ultimate guilt or innocence of the

defendant--can reasonably say "the defendant most likely did it."

Id. at 448. As such,

the State must [] present competent evidence

either upon which those charging documents relied or upon which the State intends to rely at

trial. Additionally the evidence cannot simply be statements by the prosecutor as to what the proof

will--or might--be at trial. The magistrate must be shown information at the hearing from which he

can make his own independent determination whether there is admissible evidence against an

accused that adds up to strong or evident proof of guilt. . . . [T]he evidence presented by the State

must show culpability of the actual capital crime for which bail may be wholly denied--i.e., murder

or treason--and not simply implicate a lesser-included offense such as voluntary or involuntary

manslaughter.

Id. at 449 (internal citations omitted).

Although the Fry court shifted the burden of proof and clarified the standard of necessary evidence to

establish an 'evident proof' or 'strong presumption' to

deny bail for murder or treason, the court cautioned that its opinion "should not be construed to modify--

either to enhance or diminish--the due process protections we have always required at bail hearings."

Id. at 449 (citing Phillips, 550 N.E.2d at 1295).

In light of this reassessment of the burden of proof in bail hearings, we are called upon today to determine

whether a defendant is allowed to present evidence of an affirmative defense to rebut the State's strong

presumption that the defendant more likely than not committed the murder (or treason) accused of.

While Satterfield answered this issue of first

impression in the affirmative and suggests that we should impose on the trial court a requirement to

assess a defendant's justifiable defenses during a bail proceeding, the State maintains that "[p]ossible

defenses have no bearing on the bail issue." (State's Br. p. 13). "Requiring the State to negate a defense--

such as the self-defense claim made here--could result in a bail hearing becoming a mini-trial that in

some cases could consume countless hours of the trial court's time." (State's Br. p. 13). After hearing the

parties' respective arguments, the trial court opined it was not allowed to "weigh potential defenses." (Tr. p.

74). We disagree.

[ . . . ]

In order to preserve the presumption of innocence and to fully retain the constitutional due process

rights, a defendant must be awarded the opportunity to present evidence and witnesses on his or her

behalf in an endeavor to rebut the State's burden that he or she "more likely than not committed the crime of

murder (or treason)."

[ . . . ]



II. Application to the Facts

[ . . . ]

Here, Satterfield was charged with knowingly killing

Brown. Despite Satterfield's admission that he shot Brown, he presented evidence that he might have

used this deadly force in self-defense. The evidence reflects that while Satterfield was in his own vehicle,

Brown forcefully attempted to enter the car while holding a shiny object. Satterfield fired a single shot.

However, after being presented with Satterfield's

evidence, the trial court refused to weigh any evidentiary facts alluding to a possible self-defense

and, thus, abused its discretion. Accordingly, we reverse the trial court's denial of Satterfield's bail and

remand to the trial court with instructions to conduct a new bail hearing in accordance with our opinion

today.

CONCLUSION

Based on the foregoing, . . . extraordinarily compelling reasons warrant a review of Satterfield's argument on

the merits. Upon review of the evidence, we reverse the trial court's denial of bail and remand for a new

bail hearing with instructions to weigh Satterfield's evidence of self-defense.

Reversed and remanded.

__________________________________________________________________________________________



OHIO

State v. Betliskey, 2015 Ohio 1821 (OH Ct. App. 2015)

Key Issues: Defense of others; alter ego; duty to retreat; burden of persuasion on defendant.

Date: May 14, 2015

Decision:

[ . . . ]

Jury Instructions on Duty to Retreat

In the fourth assigned error, Betliskey argues the trial court erred by giving a duty to retreat instructions.

As previously discussed, Betliskey requested and

received a self-defense jury instruction. The duty to retreat is one element of the black letter law that must

be satisfied to successfully utilize the affirmative defense of self-defense in a case where a defendant

used deadly force. Thus, a self-defense jury instruction that did not include the duty to retreat,

would be incomplete. Betliskey cannot request a jury instruction on self-defense and at the same time

complain that the trial court discussed the duty to retreat. Betliskey cannot have and eat the proverbial

cake too. As such, we find no merit in this assertion. Accordingly, we overrule the fourth assigned error.

Self-Defense and Ohio's Burden of Proof Unconstitutional

In the fifth assigned error, Betliskey argues that placing the burden of proof of self-defense on the

defendant is unconstitutional.

Betliskey is seeking to have R.C. 2901.05(A), which requires the defendant to bear the burden of proof

when raising a self-defense claim, declared unconstitutional. Betliskey recognizes that the United

States Supreme Court upheld the constitutionality of R.C. 2901.05(A) in Martin v. Ohio, 480 U.S. 228,

233-234, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987). However, Betliskey claims a different result is now

warranted in light of the ruling in Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d

637 (2008).

Initially, as an inferior court to the United States Supreme Court, we are bound to follow the Martin

decision and have no authority to overturn it. Loyed, 8th Dist. Cuyahoga No.83075, 2004-Ohio-3961 at

33. Further, this court has previously rejected the argument that Heller requires a different result. State

v. Warmus, 197 Ohio App. 3d 383, 2011-Ohio-5827, 967 N.E.2d 1223, 42-47 (8th Dist.); State v. Hudson,

8th Dist. Cuyahoga No. 96986, 2012-Ohio-1345. See also State v. Geter-Gray, 9th Dist. Summit No. 25374,

2011-Ohio-1779, 25-26 (rejecting similar argument).

In Heller, the court held that the Second Amendment protects an individual's right to possess a firearm in

the home for the purpose of self-defense. Id. at 635-636. In doing so, the court recognized that self-

defense is a "central component"to the right to bear



arms. Id. at 599. While Heller recognizes a right to self-defense, "nothing in Heller purports to alter the

way the states have defined self-defense." Warmus at 47. Accordingly, for these reasons, we overrule the

fifth assigned error.

[ . . . ]

__________________________________________________________________________________________



Pennsylvania

Commonwealth v. Thornton, 2015 Pa. Super. Unpub. LEXIS 1302 (PA Superior Ct. 2015)

Key Issues: Concession of use of force in order to claim self-defense; burden of persuasion on the state.

Date: May 11, 2015

Decision:

[ . . . ]

A claim of self-defense "tends to negate the malice required for murder" and the unlawfulness of the

killing. See Sepulveda, 55 A.3d at 1143 (citation omitted); Commonwealth v. Hilbert, 382 A.2d 724, 731

(Pa. 1978). Section 505 of the Crimes Code defines self-defense, in part, as follows:

(a) Use of force justifiable for protection of the

person.--The use of force upon or toward another person is justifiable when the actor believes that

such force is immediately necessary for the purpose of protecting himself against the use of

unlawful force by such other person on the present occasion.

(b) Limitations on justifying necessity for use of

force.--

* * *

(2) The use of deadly force is not justifiable under this section unless the actor believes

that such force is necessary to protect himself against death, serious bodily injury,

kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:

(i) the actor, with the intent of causing death or serious bodily injury, provoked

the use of force against himself in the same encounter; or

(ii) the actor knows that he can avoid the

necessity of using such force with complete safety by retreating, except the

actor is not obliged to retreat from his dwelling or place of work, unless he was

the initial aggressor or is assailed in his place of work by another person whose

place of work the actor knows it to be.

18 Pa.C.S. 505(a), (b)(2)(i)-(ii).

The Pennsylvania Supreme Court has observed,

When a defendant raises the issue of self-

defense, the Commonwealth bears the burden to disprove such a defense beyond a reasonable

doubt. While there is no burden on a defendant to prove the claim, before the defense is properly at

issue at trial, there must be some evidence, from whatever source, to justify a finding of self-

defense. If there is any evidence that will support



the claim, then the issue is properly before the fact finder.

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa.

2001) (citations omitted). Because self-defense negate elements of murder, a defendant has no

burden of proving this affirmative defense. Commonwealth v. Mouzon, 53 A.3d 738, 743 (Pa.

2012). Rather, where any evidence gives rise to a claim that self-defense is "properly joined," the

Commonwealth must disprove the defense beyond a reasonable doubt. Id.

"[T]he defense of self-defense necessarily requires

that the appellant admit that the shooting was intentional in order to protect one's self."

Commonwealth v. Philistin, 53 A.3d 1, 12 (Pa. 2012) (citation omitted). Similarly, this Court has held,

"[W]here a defendant denies the act of using deadly force in defense of himself, he has negated one of the

elements of self-defense; therefore, he may not avail himself of an instruction on justification even though

evidence from other sources would be sufficient to put the claim in issue." Mayfield, 585 A.2d at 1075.

Moreover, a defendant may not provoke or continue "the difficulty" that led to the slaying and then claim

self-defense. Mouzon, 53 A.3d at 751 (physical fight leading to alleged need to use force did not occur

spontaneously but was culmination of ongoing confrontation initiated by defendant).

Presently, we agree with the trial court that Appellant's

defense strategy sought acquittal based on misidentification. Trial counsel argued

misidentification by the occupants of the car and emphasized that others in the Williamses' home,

including Dante Williams, could have killed Decedent. Trial counsel extensively cross-examined the

Commonwealth's witnesses to suggest bias and

motives to fabricate their identification of Appellant. Furthermore, Appellant did not testify. In light of this

record, there was some legal and evidentiary support for the trial court's ruling that Appellant was not

entitled to avail himself of self-defense because he presented a defense denying his involvement in the

shooting. See Philistin, 53 A.3d at 12; Mayfield, 585 A.2d at 1074.

Although Appellant did not expressly admit shooting

at the car, he did not specifically deny the charge. Moreover, the Commonwealth's own evidence--i.e.,

the prior statements of Selina Williams and Sean Jenkins--contained Appellant's admissions that he

shot at the car. Because selfdefense may be raised from any evidence, we further consider whether there

was a legally sufficient basis to claim self-defense in the record, assuming, as we must, that Appellant was

closest to the car and was the primary shooter. See Philistin, 53 A.3d at 12.

Appellant, in claiming self-defense, relies on the

statements of Selina Williams and Sean Jenkins to police. Selina, on January 25, 2011, gave a statement

to police suggesting that Appellant, Codefendant, and Coles left her home and returned after several

minutes. When they returned to the home, Williams stated the following conversation ensued:

I asked what was going on. They said the boys

got rough and tough and we had to holler at them.

* * *

I asked them what that mean and they told me that one of the boys pulled out a gun. . . .

* * *



[Appellant] said that he asked the boy, What's up? And the guy said, What's up? Then he said he

started clapping. He said that they hollered. He hollered back at them.

N.T., 2/7/13, at 48-49. Selina explained to police that

"clapping" meant shooting. Id. at 91. She also stated, "They didn't say shooting. They said hollering. That's

the way they talk." Id.

Sean Jenkins, on January 25, 2011, also gave a statement to police. According to Jenkins:

So [Coles] came over with two dudes and

everything was quiet for about like 20 or 30 minutes. And then they were going to roll out.

So they rolled out and like in a couple

of minutes they came running back in the house. They were banging on the

back door. So when I let them in, they're in my living room and they're

out of breath and they're telling me what just happened.

[Codefendant] tells me that they were walking up

the back driveway . . . and when he got to the end of the driveway, he noticed like three or four

dudes sitting in a little car. And [Appellant] walked up to the car and asked the driver, What y'all

doing? And then [Appellant] said that the driver started getting out of the car, and that's when

[Codefendant] said that he and [Appellant] started

shooting at the dudes in the car.

[Codefendant] told me that [Coles] stayed back up in the driveway.

N.T., 2/6/13, at 29-30.

The trial record also established the following circumstances. Sean Jenkins was inside the

Williamses' home and saw suspicious activity around the car near the intersection of Washington Lane and

Musgrave Street. Jenkins believed the individuals were involved in the dispute between Jarrell and

Dante Williams. Jenkins called Mikeal Coles, after which Coles arrived with two males, Appellant and

Codefendant. Coles was aware of Jenkins's concern regarding the car. Coles, Appellant, and Codefendant

then left the residence, but returned to the back door of the residence.

Thus, even accepting the suggestion that the

occupants of the car "got rough," "hollered," showed a gun, or started to get out of the car, we conclude self-

defense was not available. First, there was no basis in the record supporting a finding that the use of

deadly force was immediately necessary. Rather, the evidence established Coles, Appellant, and

Codefendant arrived at and stayed inside the Williamses' home before the shooting. See 18

Pa.C.S. 505(a). Second, the record established Appellant, along with Codefendant, provoked the

encounter with Decedent with an intent to cause serious bodily injury when they left the home with

pistols and approached the car, and Appellant confronted the occupants of the car. See 18 Pa.C.S.

505(b)(2)(i). Thus, there was unrebutted evidence that Appellant and Codefendant were responsible for

setting in motion the sequence of events that led to the confrontation with Decedent and the encounter

that gave rise to his alleged need to use deadly force in self-defense. See Mouzon, 53 A.3d at 751.

In sum, Appellant did not admit to the shooting and

his defense questioned the reliability of the evidence



identifying him as the shooter. The totality of the circumstances, moreover, established that Appellant

interjected himself into a volatile situation, needlessly escalated the probability of violence, and along with

Codefendant, instigated the specific encounter that gave rise to the alleged need to use deadly force.

Accordingly, we agree with present counsel that Appellant's request for a self-defense jury instruction

lacked a basis in the governing law and the trial record.

[ . . . ]

__________________________________________________________________________________________



Texas

Carrasco-Flores v. State, 2015 Tex. App. LEXIS 4975 (TX. Ct. App. 2015)

Key Issues: Concession of use of force in order to claim self-defense; initial aggressor; burden of production on defense; burden of persuasion on the state.

Date: May 14, 2015

Decision:

[ . . . ]

Appellant raises a single issue on appeal in which he faults the trial court for failing to include a charge on

self-defense, contending that while the testimony may have been conflicting, there was testimony supporting

the defense.

SELF-DEFENSE INSTRUCTION

Appellant complains that the trial court refused to include an instruction on self-defense. A trial judge

must give a requested instruction on every defensive issue raised by the evidence without regard to its

source, its strength, or whether it is contradicted or credible. Juarez v. State, 308 S.W.3d 398, 404-05

(Tex.Crim.App. 2010)(defendant's conflicting statements did not negate duty of the trial judge to

submit defense); Shaw v. State, 243 S.W.3d 647, 657-58 (Tex.Crim.App. 2007). The defendant's only

burden is to present that minimum quantity of evidence sufficient to support a rational jury finding

each element of the defense. Shaw, 243 S.W.3d at 658 ("a defense is supported (or raised) by the

evidence if there is some evidence, from any source, on each element of the defense that, if believed by

the jury, would support a rational inference that that element is true."); Granger v. State, 3 S.W.3d 36, 38

(Tex.Crim.App. 1999). This rule preserves the jury's role as the arbiter of the credibility of the witnesses.

Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991)(op. on reh'g).

The initial burden to produce evidence supporting a

claim of self-defense is on the defendant. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003).

But once the defendant produces some evidence, the State bears the ultimate burden of persuasion to

disprove the raised defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). The issue of

self-defense is a fact issue to be determined by the jury, which is free to accept or reject any defensive

evidence on the issue. Id. at 913-14.

Self-defense is statutorily defined. Tex.Pen.Code Ann. 9.31 (West 2011) provides that a "person is justified

in using force against another when and to the degree the actor reasonably believes the force is immediately

necessary to protect the actor against the other's use or attempted use of unlawful force." Id.5 The defense

can turn on the defendant's conduct. For instance, one cannot claim self-defense if he has provoked

another's use or attempted use of unlawful force unless "the actor abandons the encounter, or clearly

communicates to the other his intent to do so" and "the other nevertheless continues or attempts to use



unlawful force against the actor." Id. at 9.31(b)(4). When the defense applies, a person is justified in

using deadly force "when and to the degree the actor reasonably believes the deadly force is immediately

necessary . . . to protect the actor against the other's use or attempted use of unlawful deadly force." Id. at

9.32(a)(2)(A).

Self-defense is also one of the confession and avoidance defenses. Shaw, 243 S.W.3d at 657-58.

Under such a defense, one must admit to the underlying criminal act, the culpable mental state, and

then raise the defense as justification for their conduct. Id at 658; Ex parte Nailor, 149 S.W.3d 125,

133 (Tex.Crim.App. 2004)(defendant who contended at trial that victim was injury by accident had not

confessed to elements of offense and could not raise self-defense).

After the State rested, the trial judge expressed

skepticism about the self-defense theory. After Appellant testified, the trial judge rejected the

instruction because Appellant had not admitted to the offense. We agree with Appellant that with respect to

the aggravated assault charge, there was some evidence to support inclusion of the defense. Based

on his many contradictions, a jury might well have rejected his defense, but that was for the jury to

decide.

Appellant's trial testimony certainly does not fully establish the defense. At trial, he recalled only those

details up to the point that he wrestled the knife away from Osman, and he claimed to have forgotten

everything after that point. But his trial testimony would permit a jury to infer, if it so chose, that he was

peaceably let into the apartment and did not provoke Osman. It was Osman who had a knife and then tried

to slash him, and did cut his hand. Appellant also

testified that he was let into the apartment and the door was locked behind him. His trial testimony also

supported the claim that Osman had threatened him three times before, two times with a knife. From this,

a jury might conclude that he had a reasonable belief that deadly force was necessary to protect himself.

The jury also had before it Appellant's out of court

statements made at the hospital as related by his brother and the police officers. These statements

would be sufficient to allow the jury to infer that Appellant was admitting to all of the elements of the

underlying offense, at least with respect to stabbing Osman. He told his brother his hand was cut when he

got the knife away from Osman. He claimed that Osman had stabbed him in the hand and chest. He

then grabbed the knife and stabbed Osman. We readily concede that Appellant's version of events at

the hospital is conflicting. But under the established case law, our role is not to resolve these conflicts.

Juarez v. State, 308 S.W.3d at 404-05 (defendant's conflicting statements did not negate duty of the trial

judge to submit defense); Shaw, 243 S.W.3d at 657-58.

Having found error, we next consider whether it was

harmful. Looking to each of the four factors identified in Almanza, we conclude the absence of the self-

defense instruction was harmful. 686 S.W.2d at 171. Considering the charge as a whole, there is no other

instruction which would excuse Appellant's conduct based on his reaction to Osman attacking him.

Rather, the jury would be compelled to find him guilty if they believed that he intentionally, knowingly, or

recklessly caused serious bodily injury to Osman with a knife. But this is precisely what someone would

justifiably do if they were acting in self-defense and were confronted with deadly force. Without the self-

defense instruction, Appellant had no defense at all.



For this reason, the denial of a confession and

avoidance type of instruction is generally deemed harmful. See, e.g., Vasquez v. State, 830 S.W.2d 948,

951 (Tex.Crim.App. 1992) (omission of instruction on necessity defense harmful); Miller v. State, 815 S.W.

2d 582, 586 (Tex.Crim.App.1991)(omission of instruction on mistake-of-fact defense harmful); Hill v.

State, 765 S.W.2d 794, 797-98 (Tex.Crim.App.1989)(omission of instruction on mistake-of-fact defense

harmful); Johnson v. State, 271 S.W.3d 359, 368-69 (Tex.App.--Beaumont 2008, pet. ref'd)(omission of

self-defense instruction harmful). In 2013 the Court of Criminal Appeals noted that its survey of case law up

to that point found no cases in which "the omission of a defensive instruction under a confession and

avoidance theory to be harmless." Cornet v. State, 417 S.W.3d 446, 451 (Tex.Crim.App. 2013). Cornet

held the omission of a "medical-care defense" harmless, but principally because the jury's finding to

a related charge necessarily negated the factual basis for the defense. Id. at 452.

The evidence on self-defense was conflicting. Both

Osman and Appellant claimed the other pulled the knife first and attacked each other first. Appellant's

version was disjointed in the sense that part of the story came from his trial testimony, and part from

hearsay statements at the hospital, but it was for the jury to decide if those pieces could be woven into a

convincing whole. Appellant's version was at least bolstered by three prior threats made by Osman, two

of which involved a knife. And while Appellant's version of events at the hospital was conflicting, one

common thread was that Osman first started the violence.

The argument of counsel throughout the trial also

suggests some harm to Appellant from the absence of the instruction. Appellant's counsel had worked self-

defense into his questioning of several witnesses. But once the instruction was taken away, Appellant was

left with essentially nothing left to argue in the guilt innocence phase of the trial. The State's prosecutor

drove this point home at the outset of his closing statement when he told the jury "[t]hose things are not

in here for you to consider; for example, there is no place in any of them, that says self-defense. You're

not allowed to consider self-defense. . . . It's not a debate for you to have."

In the related appeal involving Norma, we affirmed the

conviction and rejected a claim that the jury should have been instructed on self-defense. We distinguish

between Norma and Osman based on the record before us. As to Norma, there was no development of

facts to explain why Appellant would have stabbed Norma in her apartment, and much less as she lay

incapacitated on the staircase. With regard to Osman, however, there was some evidence to support the

defense.

For these reason, we sustain Issue One and reverse and remand for a new trial.

__________________________________________________________________________________________



Texas

Guzman v. State, 2015 Tex. App. LEXIS 4840 (TX Ct. App. 2015)

Key Issues: Concession of use of force in order to claim self-defense.

Date: May 13, 2015

Decision:

Jury Charge Error

In this case, on appellant's request, the trial court included an instruction on self-defense in the court's

jury charge. In the abstract portion of the court's charge, the trial court instructed the jury as follows:

Upon the law of self defense [sic] you are

instructed that a person is justified in using force against another when and to the degree he

reasonably believes the force is immediately necessary to protect himself against the other's

use or attempted use of unlawful force.

A person is justified in using force against another: (1) if he would be justified in using force

against the other; and (2) if a reasonable person in the defendant's situation would not have

retreated; and (3) when and to the degree he reasonably believes the force is immediately

necessary to protect himself against the other's use or attempted use of unlawful force.

"Reasonable belief" means a belief that would be

held by an ordinary and prudent person in the same circumstances as the defendant.

During the charge conference, appellant requested an

additional instruction to explain self-defense.7 The

State objected, maintaining that the instruction was already reflected in the charge. Appellant next

complained that the self-defense jury instruction "talk[ed] about the duty of a defendant to retreat.

That's nowhere in the statute." Both the prosecutor and the trial court maintained that the duty to retreat

"[is] in the law." The court overruled appellant's request for his submission and retained the language

relating to the duty to retreat in the charge. In his third point of error, appellant argues that the trial court

erroneously instructed the jury that appellant had a duty to retreat in order for the law of self-defense to

apply. He further maintains that the incorrect instruction on self-defense caused him harm.

We review alleged jury charge error in two steps: first,

we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the

error to require reversal. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State, 175

S.W.3d 738, 743--44 (Tex. Crim. App. 2005). The trial court must charge the jury on the "law applicable to

the case," which requires that the jury be instructed on each element of the offense charged. See Tex.

Code Crim. Proc. art. 36.14; see also Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). The trial

court is also required to instruct the jury on statutory defenses, affirmative defenses, and justifications

when they are raised by the evidence and requested



by the defendant. Walters v. State, 247 S.W.3d 204, 208--09 (Tex. Crim. App. 2007).

Under the Texas self-defense statute, a person may

use deadly force if he reasonably believes such force is immediately necessary to protect himself from

another person's use or attempted use of deadly force. See Tex. Penal Code 9.32. Before 2007, the

deadly-force self-defense statute contained a provision imposing a general duty to retreat, providing

that the use of deadly force was justified only "if a reasonable person in the actor's situation would not

have retreated." See Act of May 16, 1995, 74th Leg., R.S., ch. 235, 1, 1995 Tex. Gen. Laws 2141,

2141--42 (amended 2007) (current version at Tex. Penal Code 9.32); Morales v. State, 357 S.W.3d 1,

6 (Tex. Crim. App. 2011). However, effective September 1, 2007, the Legislature amended the

statute to delete the language regarding a general duty to retreat. Morales, 357 S.W.3d at 4--5; McBride

v. State, 359 S.W.3d 683, 694 (Tex. App.--Houston [14th Dist.] 2011, pet. ref'd). Because this general

duty to retreat was removed from the self-defense statute in 2007, the self-defense instruction given

here--indicating that appellant had a duty to retreat--was erroneous. See Morales, 357 S.W.3d at 6.

If the trial judge charges on a defensive issue but fails

to do so correctly, this is charge error subject to review under Almanza. Vega v. State, 394 S.W.3d

514, 519 (Tex. Crim. App. 2013); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh'g) (setting forth analysis for determining whether jury charge error requires reversal). Under

Almanza, if the jury charge error has been properly preserved by an objection or request for instruction,

as in this case, reversal is required if the appellant has suffered "some harm" from the error. Vega, 394

S.W.3d at 519; Almanza, 686 S.W.2d at 171. We

assess whether the appellant has suffered actual harm "in light of the entire jury charge, the state of the

evidence, including the contested issues and weight of probative evidence, the argument of counsel and

any other relevant information revealed by the record of the trial as a whole." Vega, 394 S.W.3d at 521

(quoting Almanza, 686 S.W.2d at 171). We engage in this assessment to illuminate the actual, not just

theoretical, harm to the accused. Almanza, 686 S.W.2d at 174; see Cornet v. State, 417 S.W.3d 446, 449

(Tex. Crim. App. 2013) ("This means that the trial record must demonstrate that there is some actual

harm and not just a theoretical complaint.").

Beginning with the jury charge itself, we observe that in addition to erroneously instructing the jury in the

abstract portion of the charge that a person was justified in using force against another only if a

reasonable person in the defendant's situation would not have retreated, the trial court included the duty to

retreat in each of the self-defense application paragraphs. Thus, the jury charge, in four different

places--the abstract portion of the charge and three self-defense application paragraphs--impermissibly

instructed the jury to determine whether there was a general duty to retreat. See Morales, 357 S.W.3d at

5--6 (jury instruction on general duty to retreat constituted comment on weight of evidence). Nothing

in the remainder of the charge instructed the jury that it should not determine, as a general matter, whether

a duty to retreat existed. See id. at 6. Accordingly, the remainder of the jury charge did not alleviate the

harm caused by the incorrect self-defense instruction. Thus, consideration of the entirety of the jury charge

weighs in favor of a finding of harm.

Next, we must consider the state of the evidence and determine whether the jury charge error related to a

contested issue. Appellant did not testify at trial. The



defensive theories were presented through the State's evidence--primarily the recording of appellant's

interview with the detective--and the cross examination of the State's witnesses. During his

interview with the detective, appellant gave his version of the events. He indicated that when he and

Ofelia picked up his daughter that evening for his visitation, Gay asked him to stay but he declined and

went home with Ofelia and his daughter. According to appellant, Gay then showed up at his house in Kyle at

about 4:00 in the morning. She knocked on his window and said that if he wanted to get his stuff, he

needed to come and get it now. When he told Gay that he did not have any gas in his car, she offered to

buy the gas to fill his car. Appellant said that they then went to the gas station and filled up the cars with

gas--he and Gay in her car, Ofelia and his daughter in his car.9 After filling up, they went to Gay's house.

When he realized it was going to take time to sort out what things he could take, he sent Ofelia home,

telling her that Gay would just drop him off. Appellant told the detective that eventually he got tired of

waiting for Gay to decide what he could take, so he told Gay to just take him home. He said that when

they were in her car, she pulled her gun out of her pocket and threatened to kill him and Ofelia.

According to appellant, they struggled over the gun and fell out of her car during the struggle. He said that

he had his arms wrapped around Gay from behind when she fired the gun multiple times. Appellant told

the detective that he got away from Gay and called Ofelia to come pick him up. He showed the detective

an injury he had on his thumb where either the hammer of the gun pinched him or the flash from the

gunshot burned him.

While giving his version of the events, appellant said that he was "fighting for his life" and was "just trying to

get away from [Gay]." However, he adamantly

maintained that he did not cause her injuries. He repeatedly denied ever hitting or kicking Gay. In fact,

even as he conceded that Gay "might have" been hurt during the struggle over the gun, he still insisted

he "never hit her." Further, when the detective showed appellant photographs of Gay's injuries and

asked if he could explain them, he said that they were probably self-inflicted. When the detective directly

asked appellant if he "did this" (caused the injuries depicted in the photographs), he responded, "No."

When the detective admonished appellant that he needed to be honest and expressed her opinion that

more happened than he was telling her, appellant insisted that he "didn't do anything" to Gay.

There was but the barest scintilla of evidence that

during his encounter with Gay, appellant was "fighting for [his] life" and thus may have unintentionally injured

Gay during his attempts to protect himself from her. However, appellant's primary defense was that he did

not cause Gay's injuries at all, that they were self-inflicted, and that the events had not transpired as

Gay claimed. The secondary defense was that if she was injured during the struggle, it was not his fault

because he was acting in self-defense. The self-defense theory applied only to three of the five

charges, and it was a marginal theory at best. A comparison of the photographs of Gay's extensive

injuries and appellant's minimal injuries demonstrates the unlikelihood that Gay's injuries were self-inflicted

and refutes appellant's repeated claim that he "didn't do anything" to Gay. Under the circumstances, we

cannot conclude that, given the weak evidence of self-defense combined with appellant's adamant

denial that he caused Gay's injuries, the state of the evidence demonstrates that the trial court's erroneous

instructions on the general duty to retreat caused appellant harm. Thus, after reviewing the evidence in



the record, we conclude that the state of the evidence weighs against a finding of harm.

Concerning jury argument, both the State and

appellant's counsel briefly mentioned self-defense in closing arguments. However, neither side

emphasized the erroneous jury instruction or appellant's purported duty to retreat but instead only

referred generally to the concept of whether appellant's conduct was justified because he was

acting in self-defense. The prosecutor argued that as the aggressor, appellant did not act in self-defense.11

Appellant's trial counsel reminded the jury that appellant told the detective in the interview that he

"had to fight for his life." Also during his argument, appellant's counsel referred the jury to the court's

self-defense instruction in the charge. However, he did not emphasize the erroneous portion regarding

the general duty to retreat but referred to the fact that it was "immediately necessary" for appellant to react

as he did to protect himself from Gay. Overall, in the context of the entire jury argument, neither side

focused on self-defense and neither side argued that appellant had a duty to retreat. Thus, we conclude

that the arguments of counsel do not weigh in favor of a finding of harm.

Finally, with regard to the final factor, we consider the

fact that appellant was not actually entitled to a jury instruction on self-defense in this case to be relevant

information in evaluating harm. A defendant is entitled to a self-defense instruction if the issue is raised by

the evidence, regardless of whether that evidence is weak or strong, unimpeached or contradicted, and

regardless of what the trial court may think about the credibility of the witnesses or the viability of the

defense. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008); Ferrel v. State, 55 S.W.3d 586, 591

(Tex. Crim. App. 2001). However, because self-

defense is justification for one's actions, the assertion of the defense necessarily requires an admission that

the alleged conduct occurred. Anderson v. State, 11 S.W.3d 369, 372 (Tex. App.--Houston [1st Dist.] 2000,

pet. ref'd); see Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007) ("[A] defensive instruction is

only appropriate 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."). Assertion of self-defense is inconsistent with a denial of the conduct. Ford v.

State, 112 S.W.3d 788, 794 (Tex. App.--Houston [14th Dist.] 2003, no pet.). Thus, a defendant is not entitled

to an instruction on self-defense if "he claims that he did not perform the assaultive acts alleged, or that he

did not have the requisite culpable mental state, or both." VanBrackle v. State, 179 S.W.3d 708, 715 (Tex.

App.--Austin 2005, no pet.) (citing Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004)).

In this case, although appellant admitted that he

struggled with Gay for the gun, he did not admit that he committed the assaultive conduct alleged.

Appellant repeatedly denied ever hitting or kicking Gay, adamantly maintained that he did not cause her

injuries, asserted that the injuries were self-inflicted by Gay, and suggested that the injuries were caused

by other objects (such as the mailboxes) during their struggle over the gun. Thus, because appellant did

not admit to committing the alleged conduct, he was not entitled to an instruction on self-defense. See

Maxwell v. State, No. 03-06-00473-CR, 2007 Tex. App. LEXIS 6356, 2007 WL 2274883, at *2 (Tex.

App.--Austin Aug. 6, 2007, no pet.) (mem. op., not designated for publication) ("A defendant must

sufficiently admit to the commission of the offense for which the defensive instruction is requested."). We

conclude that the fact that appellant was not entitled



to a self-defense jury instruction under these circumstances weighs against a finding of harm.

In sum, except for the jury charge itself, the factors

discussed above militate against a finding of harm. Accordingly, after reviewing the record and

considering the relevant factors, we hold that the erroneous self-defense instruction did not harm

appellant. We overrule appellant's third point of error.

CONCLUSION

Having concluded . . . that the erroneous self-defense instruction in the jury charge did not cause appellant

harm . . . we affirm the trial court's judgements of conviction.

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2015 #21 self defense weekly law report

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