Soliciting a Criminal Defense Case

Let it be known, I would like to defend THIS GUY, if he is indicted (which I doubt will happen in Texas).

Stand Your Ground in the Defense of Others

I had the slip opinion in my hand.  I had finished reading the case and highlighting the parts that I wanted to pull for a blog entry.  And then I decided to click on a few links from my blogroll.  After reading John T. Floyd's blog entry, I walked over to the recycling bin and tossed the case I had just read.  I try not to blog about cases on which other bloggers have already written (and written well), save U.S. Supreme Court opinions about which everyone feels compelled to write.

I pride myself on being one of the first to publicly report opinions (published opinions, that is) from the Texas Court of Criminal Appeals.  Well, a case named Morales v. State, came out in November 2011 and it slipped through the cracks.  So today, when I saw that John T. Floyd's blog (Criminal Jurisdiction) had an entry at the top of the page titled: SELF-DEFENSE: NO DUTY TO RETREAT, I knew immediately that I had been scooped.  That's what I get for procrastinating I suppose.

To focus on the positive, at least I don't have to hammer out a blog post about the case (well, at least not a substantive post), because John T. Floyd's post is about as good as it gets.  I encourage any L&J for Y'all readers (yes, I'm delusional enough to believe we have "readers") to go check it out.  He and his paralegal have done an excellent job summarizing the case and the holding, that...

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

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

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

Thanks John.  I guess I'll move along to the next case, or perhaps I'll click on a few more links and see if it has already been covered by a colleague.

Self-Defense and Reckless Offenses

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

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

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

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

The CCA reversed the decision of the 13th Court and remanded the case for a harm analysis.  Click HERE to read the facts of the case.  Presiding Judge Keller concurred.

"But He Started It!" - Self-Defense Instruction Doesn't Always Apply

"The dog ate my homework."

"I only had two beers."

"I did not have sexual relations with that woman."

"Okay, even if I did, it was consensual."

"But he started it!" - Self-defense is one of the most commonly used defenses in criminal law.  Many times, this defense has merit, but sometimes (especially in homicide cases) it is a lame attempt to shift the attention of the jury from the acts of the obviously culpable defendant to the victim (who is usually a questionable character himself).  Can any defendant claim self-defense?  Sure, if the issue is raised by the evidence.  Are there limits to a defendant's right to a self-defense jury instruction?  You bet.

One of those limitations is found in section 9.31(b)(5) of the Texas Penal Code, which provides:

The use of force against another is not justified if the actor sought an explanation from or a discussion with the other person concerning the actor's differences with the other person while the actor was... [unlawfully] carrying a weapon.

What exactly does "concerning the actor's differences with the other person" mean in the legal sense?  This issue was recently addressed by the 14th District Court of Appeals (Houston) in Hernandez v. State, in which the court dusted off the ole' Webster's dictionary and explained:

The term "differences" is not defined in the statute. Under the canons of statutory construction, we are to construe a statute according to its plain language. Edwards v. State, 273 S.W.3d 919, 921 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In determining the plain meaning of the language of a statute, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage." Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). The plain meaning of "differences" is a "disagreement of opinion," or "an instance of disagreement or a point upon which there is disagreement." Webster’s Third Int’l Dictionary 629 (1993) (third definition of "difference").

In Hernandez, because the defendant, while unlawfully carrying a weapon, sought out the victim to discuss a contentious matter ("differences"), the defendant was not entitled to a jury instruction on self-defense when he was later charged with the murder of the victim.  Murder conviction and life sentence affirmed.