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Law of Self Defense: Weekly Law Report

2015 #21 (May 11-15, 2015)


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Law of Self Defense: Weekly Law Report


2015 #21 (May 11-15, 2015)
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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 statespecific online training classes. And, of course, theres always the Law of Self Defense Blog.

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Law of Self Defense: Weekly Law Report


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Table of Contents
CALIFORNIA

Page

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

4
6

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

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

10

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

12

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

14

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

17

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

19

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
Date: 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-defense
Date: May 13, 2015

23

26

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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 manner in which it is used, and all other facts


relevant to the issue. [Citations.]" (People v. Aguilar

The sole issue on appeal is whether there is sufficient

(1997) 16 Cal.4th 1023, 1028-1029.) Bicycles are not

evidence to support the jury's finding appellant

inherently deadly objects. But looking at the

assaulted Manuel with a deadly weapon.

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.

Appellant was found guilty of violating Penal Code

Rather, it was a metal beach cruiser that belonged to

section 245, subdivision (a)(1), which makes it a

Manuel's nine-year-old daughter and that Manuel

crime to assault a person "with a deadly weapon or

described as "heavy." (See People v. Graham (1969)

instrument other than a firearm[.]" That provision

71 Cal.2d 303, 327-328 [listing "heavy objects"

encompasses "any object, instrument, or weapon

among the sort of ordinary items that can constitute a

which is used in such a manner as to be capable of

deadly weapon if they are used in a dangerous

producing and likely to produce, death or great bodily

manner].) Although appellant attempts to downplay

injury" (In re Jose R. (1982) 137 Cal.App.3d 269,

the dangerousness of the bicycle by characterizing it

275-76), meaning injury that is "significant or

as a "blunt" object, it has several components --

substantial" in nature. (People v. Duke (1985) 174

handlebars, pedals, chain, kickstand -- that are sharp,

Cal.App.3d 296, 302.)

jagged and irregular and that could easily cause great


bodily injury if they forcefully came into contact with a

As our Supreme Court has explained, some objects,

person. Anyone who has ever fallen onto their bicycle

"such as dirks and blackjacks, have been held to be

before can attest to the fact it is much more

deadly weapons as a matter of law; the ordinary use

hazardous than falling onto a featureless or flat

for which they are designed establishes their

surface.

character as such. [Citations.] Other objects, while not


deadly per se, may be used, under certain

As for the manner in which Manuel used the bicycle,

circumstances, in a manner likely to produce death or

the record shows that after repeatedly menacing

great bodily injury. In determining whether an object

Manuel and his family, appellant picked up the bicycle

not inherently deadly or dangerous is used as such,

and threw it two or three feet across the width of a

the trier of fact may consider the nature of the object,


picnic table. Appellant heaved the bicycle with such
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force that even after it struck Manuel's forearm, it

defensive measures in response to appellant's

continued going "over [his] head." These facts could

aggressive and threatening behavior, it is quite likely

easily be interpreted as an attempt by appellant to

he would have suffered serious injury to another part

inflict serious physical harm on Manuel. Granted,

of his body. Indeed, there can be little doubt that, by

Manuel suffered only a minor injury from the assault.

hurling the bicycle toward Manuel's upper body,

But guilt for assault with a deadly weapon does not

appellant created a very dangerous situation for

depend on the extent of the victim's injuries. (People

Manuel.

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 injuryproducing potential" of those actions that is the focus

Under these circumstances, we are convinced there

of our analysis. (People v. Russell (2005) 129

is sufficient evidence to support the jury's

Cal.App.4th 776, 788.)

determination the bicycle constituted a deadly


weapon. Although bicycles are generally not thought

Appellant insists he threw the bicycle "with only

of as weapons, appellant's actions demonstrate that,

enough force to cause a bruise." That's true in the

like many other ordinary objects, such as pillows

sense Manuel only suffered a bruise as a result of

(People v. Helms (1966) 242 Cal.App.2d 476), pins

what appellant did. But to characterize the severity of

(In re Jose R., supra, 137 Cal.App.3d at p. 277) and

appellant's actions in that limited fashion is somewhat

pencils (People v. Page (2004) 123 Cal.App.4th

misleading because it fails to take account of the

1466), bicycles can be utilized in a manner that

context in which his conduct occurred. Widening the

makes them a serious danger to others. We therefore

lens on appellant's behavior, it would be more

have no occasion to disturb the jury's verdict.

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


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CALIFORNIA
People v. Gonzalez, 2015 Cal. App. Unpub. LEXIS 3320 (CA Ct. App. 2015)
Key Issues: Imperfect self-defense
Date:

May 11, 2015

Decision:
[...]

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

B. The Evidence Did Not Support an Imperfect

rushed into the backyard and one or more men in the

Self-Defense Instruction

group assaulted Ramos by pushing, punching, or


jabbing him. The witnesses further testified that, once

Appellants contend that the trial court was required to

the fight started, they saw multiple men assaulting

instruct the jury on the theories of imperfect self-

Ramos, who threw punches at those men, but did not

defense and imperfect defense of another because

use any other force. While Munoz testified that, at one

there was evidence that Ramos was a large man at

point, he saw someone kicking or stomping on a Pico

six feet two inches and 275 pounds, and that during

Nuevo gang member who was on the ground, he did

the fight, Munoz saw some Pico Nuevo gang

not identify Ramos as that person. Munoz also

members being stomped on while they were on the

testified that members of both groups were on the

ground. Appellants claim that the jury reasonably

ground at various times, and agreed that it was "just

could have concluded from such evidence that

sort of a big fight." In addition, the witnesses who saw

imperfect self-defense or imperfect defense of

Ramos being stabbed testified that both Ramos and

another was a foreseeable consequence of the

the person who stabbed him were standing upright at

assault on Ramos, but that murder was not. We

the time. None of the witnesses saw Ramos with a

conclude, however, that the imperfect self-defense

weapon, nor did they see Ramos assault Sanchez or

doctrine did not apply in this case.

any of his companions while they were on the ground.

As discussed, there was no evidence that Ramos was

Accordingly, there was no evidence that Ramos used

the initial aggressor in the fight or ever responded

deadly force during the assault or acted in a way that

with deadly force in defending himself against the

was not legally justified. (People v. Booker, supra, 51

physical attack by appellants' group. Although there

Cal.4th at p. 182 [where "defendant initiated the

was conflicting testimony about the extent of each

attack . . . and there was no evidence that [victims']

appellant's involvement in the attack, none of the

subsequent actions were not legally justified, he may

eyewitnesses testified that Ramos (or any other guest

not claim imperfect self-defense"]; People v. Seaton

at the party) initiated the fight or was armed with a

(2001) 26 Cal.4th 598, 664 ["[b]ecause defendant's

weapon during the fight. Rather, the witnesses who


testimony showed him to be the initial aggressor and
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the victim's response legally justified, [he] could not

also People v. Szadziewicz (2008) 161 Cal.App.4th

rely on unreasonable self-defense"].) There also was

823, 834 ["an imperfect self-defense instruction is not

no evidence that Sanchez stabbed Ramos because

required just because the court is instructing on actual

he actually feared he was in danger of imminent

self-defense"].) Where, as here, there is no

death or great bodily injury, or honestly believed that

substantial evidence of an honest belief in the need to

any of his companions were in danger of such harm.

defend oneself or others from an imminent danger of

Nor was there any evidence that Gonzalez,

death or great bodily injury, an instruction on

Resendez, or Calleros acted under an actual belief of

imperfect self-defense or defense of another is not

imminent danger when they aided and abetted the

required. (People v. De Leon (1992) 10 Cal.App.4th

assault. Instead, appellants assert that there must

815, 825 [even though trial court gave a perfect self-

have been sufficient evidence of their honest belief in

defense instruction, it properly omitted instruction on

the need to defend because the trial court instructed

imperfect self-defense where "there was no

the jury on perfect self-defense and perfect defense

substantial evidence [defendant] honestly believed he

of others. However, "just because a trial court

was in imminent peril").] The trial court therefore did

instructs a jury on perfect self-defense, this does not

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

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


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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

asserted toward the defendant was so great that

and sentenced to life in prison for stabbing a man in

he reasonably believed that he was in imminent

the head with a knife during an alcohol-fueled

danger of death or great bodily harm and had

argument over a woman. Appellant claimed that he

exhausted every reasonable means to escape

stabbed the victim in self-defense. There was

the danger of [sic]1 using deadly force on [the

conflicting evidence as to whether the victim or

victim] or, number two, in good faith, the

Appellant was the initial aggressor. The trial court

defendant withdrew from physical contact with

instructed the jury that:

[the victim] and clearly indicated to [the victim]


that he wanted to withdraw and stop the use of

If the defendant was not engaged in an unlawful

deadly force but [the victim] continued or resumed

activity and was attacked in a place where he had

the use of force.

a right to be, he had no duty to retreat and had


the right to stand his ground and meet force with

(emphasis added).

force, including deadly force if he reasonably


believed that it was necessary to do so to prevent

Appellant contends that the trial court committed

death or great bodily harm to himself.

fundamental error2 in giving these instructions

***

because the portions of the instructions emphasized

However, use of deadly force is not justifiable if

above negate each other with respect to his duty to

you find the defendant initially provoked the use

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

of force against himself unless, one, force


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Accordingly, we reverse Appellant's judgment and

DISPUTE AS TO WHETHER THE DEFENDANT

sentence and remand for a new trial.3

OR THE VICTIM WAS THE INITIAL


AGGRESSOR, DOES A TRIAL COURT COMMIT

Additionally, we certify that this case passes on the

FUNDAMENTAL ERROR BY INSTRUCTING

same question of great public importance that we

THE JURY BOTH (1) THAT THE DEFENDANT

certified to the Florida Supreme Court in Floyd:

DID NOT HAVE A DUTY TO RETREAT AND


THAT HE COULD MEET FORCE WITH DEADLY

DOES FLORIDA STANDARD JURY

FORCE IF HE REASONABLY BELIEVED THAT

INSTRUCTION (CRIMINAL) 3.6(F) PROVIDE

IT WAS NECESSARY TO DO SO TO PREVENT

CONFLICTING INSTRUCTIONS AS TO THE

DEATH OR GREAT BODILY HARM TO

DUTY TO RETREAT?

HIMSELF, AND (2) THAT THE DEFENDANT'S


USE OF DEADLY FORCE WAS NOT
JUSTIFIABLE IF HE WAS THE INITIAL

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

AGGRESSOR UNLESS HE EXHAUSTED

(order granting Appellee's motion to certify a question

EVERY REASONABLE MEANS TO ESCAPE

of great public importance). More specifically, the

THE DANGER OTHER THAN USING DEADLY

question of great public importance framed by this

FORCE?

case is:
REVERSED and REMANDED for a new trial;
IN A CASE WHERE THE DEFENDANT'S SOLE

QUESTION CERTIFIED.

DEFENSE IS SELF-DEFENSE AND THERE IS A

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FLORIDA
Helton v. State, 2015 Fla. App. LEXIS 6990 (FL Ct. App. 2015)
Key Issues: Innocence, regaining (withdrawal/escalation); stand-your-ground
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 nondeadly force fight to a deadly force level.

Date:

May 12, 2015

Decision:
The State charged Appellant, Timothy Donald Helton,

retreat, if possible. In pertinent part, the court

with one count of aggravated battery and one count of

instructed the jury as follows:

simple battery arising from an incident that occurred


on May 31, 2011, involving two victims. Helton's first

An issue in this case is whether the defendant

trial resulted in a hung jury, . . . [t]he second trial

acted in self-defense. It is a defense to the

yielded guilty verdicts on both counts. The trial court

offense with which TIMOTHY DONALD HELTON

reclassified the aggravated battery, a second-degree

is charged if the injury to CRAIG RICHARD

felony, to a first-degree felony based on the jury's

NELSON, JR resulted from the justifiable use

specific finding that Helton used a deadly weapon in

deadly force.

committing the crime, and imposed a life sentence.


"Deadly force" means force likely to cause death
On appeal, Helton challenges only the conviction and

or great bodily harm.

sentence for aggravated battery. He argues that the


instructions the court gave the jury on the justifiable

A person is justified in using deadly force if he

use of deadly force and the duty to retreat were

reasonably believes that such force is necessary

inconsistent and constituted fundamental error . . .

to prevent imminent death or great bodily harm to


himself or another.

Helton's only defense at trial was that he acted in selfdefense, as permitted by the "stand your ground" law.

However, the use of deadly force is not justifiable

1 Accordingly, the trial court gave the standard

if you find:

instructions2 on the justifiable use of force and the


circumstances under which Helton could stand his

1. TIMOTHY DONALD HELTON initially provoked

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


the use of force against himself, unless:
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[T]he jury was instructed that if the use of
(a) The force asserted toward the defendant was

deadly force is necessary to prevent imminent

so great that he reasonably believed that he was

death or great bodily harm to oneself or others,

in imminent danger of death or great bodily harm

then deadly force is justified without regard to any

and had exhausted every reasonable means to

effort to retreat so long as the defendant is not

escape the danger, other than using deadly force

engaged in unlawful activity. A defendant may not

on CRAIG RICHARD NELSON, JR. [or]

use deadly force if the defendant provoked


another showing force; however, if the defendant

(b) In good faith, the defendant withdrew from

provoked another, who then uses force so great

physical contact with CRAIG RICHARD

as to put the defendant in fear of death or great

NELSON, JR and clearly indicated to CRAIG

bodily harm, then the defendant may use deadly

RICHARD NELSON, JR that he wanted to

force, but only if the defendant has first exhausted

withdraw and stop the use of deadly force,

every means of escape. In effect, the jury

but CRAIG RICHARD NELSON, JR

instruction here provided that Floyd did not have

continued or resumed the use of force.

to retreat before meeting deadly force with deadly

(c)

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

If the defendant was not engaged in an unlawful

harm.

activity and was attacked in any place where he


had a right to be, he had no duty to retreat and

151 So. 3d at 454 (emphasis in original). Because the

had the right to stand his ground and meet force

contradiction in the instructions effectively negated

with force, including deadly force, if he reasonably

possible application to Floyd's only defense--self-

believed that it was necessary to do so to prevent

defense under the "stand your ground" law--

death or great bodily harm to himself.

fundamental error occurred, requiring reversal of


Floyd's convictions. Id. (citing Carter v. State, 469 So.

(Emphasis added).

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

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

The circumstances are the same here, constraining

rev. granted,

us to apply our holding in Floyd and find that the

So. 3d

, 2014 Fla. LEXIS 3793,

2014 WL 7251662 (Fla. Dec. 16, 2014), and more

contradictory justifiable-use-of-force jury instructions

recently in Tramel v. State, No. 1D13-2285 (Fla. 1st

the trial court gave negated Helton's only defense and

DCA March

resulted in fundamental error.

, 2015), we held the identical

instructions constituted fundamental error because an


inconsistency regarding the duty to retreat essentially

Based on our decision in Floyd,3 we reverse Helton's

negated the defendants' sole defense. As we

conviction and sentence for aggravated battery, and

reasoned in Floyd:

remand for a new trial on that count only.

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FLORIDA
Tramel v. State, 2015 Fla. App. LEXIS 6987 (FL Ct. App. 2015)
Key Issues: Innocence, regaining (withdrawal/escalation); stand-your-ground
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 nondeadly force fight to a deadly force level.

Date:

May 12, 2015

Decision:
Michael Tramel seeks reversal of his convictions and

Key who initiated the first altercation, that Key had a

sentences for attempted second-degree murder and

knife, that Tramel armed himself with a knife after the

aggravated battery with a deadly weapon raising

fight broke up when he became aware Key and

several issues. We affirm the aggravated battery

others were chasing him, that Key reinitiated the fight,

conviction and sentence without discussion. However,

and that he did not purposely stab Key.

finding fundamental error in the jury instructions given


on the justifiable use of deadly force, we reverse the

Tramel claimed self-defense pursuant to the "stand

attempted second-degree murder conviction and

your ground" law.1 In accordance with the discussion

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

between the parties and the court during the charge


conference, the trial court instructed the jury as

According to witnesses at Tramel's trial, Tramel fought

follows,2 in pertinent part, regarding the use of deadly

with and stabbed victim Jonathan Key during the

force in self-defense and the duty to retreat:

funeral for Tramel's half-brother, Enoch. Tramel and


Key got into a graveside argument and scuffle, which

An issue in this case is whether the Defendant

Tramel initiated by first pushing then punching Key.

acted in self-defense. It is a defense to the

The fight was broken up by fellow mourners. Several

offense with which MICHAEL GARRICK

witnesses testified they saw Tramel in possession of

TRAMEL is charged if the injury to Jonathan Key

a small knife or a pocketknife during the fight. After

resulted from the justifiable use of deadly force.

Tramel and Key were separated, Tramel went to his


car and returned with what some witnesses testified

"Deadly force" means force likely to cause

was another, larger knife. The fight between the two

death or great bodily harm. A person is

men resumed, and ended with Key being stabbed.

justified in using deadly force if he reasonably

Testifying in his own defense, Tramel said that it was


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

to arm himself. However, the Defendant cannot

to himself or another.

justify the use of deadly force, if after arming


himself he renewed his difficulty with Jonathan

However, the use of deadly force is not

Key when he could have avoided the difficulty,

justifiable if you find:

although as previously explained if the Defendant


was not engaged in an unlawful activity and was

MICHAEL GARRICK TRAMEL initially

attacked in any place where he had a right to be,

provoked the use of force against himself

he had no duty to retreat.

unless:
Relying on this court's decision in Floyd v. State, 151
a. The force asserted toward the Defendant

So. 3d 452 (Fla. 1st DCA 2014), rev. granted,

So.

was so great that he reasonably believed that

3d

he was in imminent danger of death or great

Dec. 16, 2014), Tramel argues the trial court gave

bodily harm and had exhausted every

conflicting instructions when it told the jury both that

reasonable means to escape the danger,

he had no duty to retreat in the face of imminent

other than using deadly force on Jonathan

death or great bodily harm, and that he had to

Key.

exhaust every reasonable means to escape danger

b. In good faith, the Defendant withdrew from

before using deadly force. In doing so, he argues, the

physical contact with Jonathan Key and

court committed fundamental error.

, 2014 Fla. LEXIS 3793, 2014 WL 7251662 (Fla.

clearly indicated to Jonathan Key that he


wanted to withdraw and stop the use of

The only defense clearly asserted by Tramel and

deadly force, but Jonathan Key resumed the

argued by defense counsel was self-defense. Based

use of deadly force.

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

If the Defendant was not engaged in an unlawful

inconsistently provided that Tramel did not have to

activity and was attacked in any place where he

retreat before meeting deadly force with deadly force

had a right to be, he had no duty to retreat and

if in fear of death or great bodily harm and did have a

had the right to stand his ground and meet force

duty to try to retreat before using deadly force if in

with force, including deadly force, if he reasonably

fear of death or great bodily harm. This inconsistency

believed that it was necessary to do so to prevent

rendered the instructions inapplicable to Tramel's sole

death or great bodily harm to himself.

defense, and consequently, fundamental error


occurred. For this reason, we reverse Tramel's

If you find that the Defendant who because of

conviction and sentence for attempted second-degree

threats or prior difficulties with Jonathan Key had

murder, and remand for a new trial on that count only.

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
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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

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

Appellant-Defendant, James Satterfield (Satterfield),

In Fry, our supreme court disregarded the well-

appeals the trial court's denial of his motion to let bail

established maxim of stare decisis and, in one fell

following his arrest and charge for murder.

swoop, overruled nearly 150 years of precedent going


back to the Civil War era. Shifting the burden of proof,

APPEAL

the Fry court held that "when a criminal defendant is


charged with murder or treason, whether by

I. The Fry Decision

indictment or information, the burden lies with the


State to show that 'the proof is evident, or the

The Indiana Constitution specifically provides that

presumption strong,' if it seeks to deny bail to that

"[o]ffenses, other than murder or treason, shall be

defendant." Id. at 443-44. Reversing the course of

bailable by sufficient sureties. Murder or treason shall

Indiana precedent, the court concluded that "the

not be bailable, when the proof is evident, or the

contrary procedure used in the past [is] incompatible

presumption strong." Ind. Const. art. I, 17. "This

with the fundamental guarantee presuming an

qualification was proper because murder is 'the most

accused's innocence until proven guilty beyond a

serious charge that can be lodged by the [S]tate

reasonable doubt." Id. at 444.

against an individual and carries with it the possibility


of the imposition of a sentence of death, society's

Recognizing this complete disapproval of stare

hashest penalty,' and the purpose of bail would likely

decisis, the Fry court also set out "to articulate what is

be disserved by an unqualified right in such a case."

contemplated by the burden [this court] ha[s] now

Fry v. State, 990 N.E.2d 429, 435 (Ind. 2013) (quoting

assigned to the State" and endeavored to "provide

Phillips v. State, 550 N.E.2d 1290, 1294-95 (Ind.

some guidance by placing this standard somewhere

1990), abrogated on different grounds by Fry v. State,

on the proof spectrum, which is bounded generally at

990 N.E.2d 429 (Ind. 2013)). Until recently, the

the low end by 'reasonable suspicion' and at the high

burden was placed on the defendant to show that

end by 'beyond a reasonable doubt.'" Id. at 444, 445.

either of those two separate and distinct

"Like Goldilocks in the home of the three bears, [the

circumstances exist--i.e., to show that in his or her

Fry court] search[ed] for a formulation that is not too

murder case the proof is not evident, or the


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low, and not too high, but instead is just right." Id. at

deny bail for murder or treason, the court cautioned

446. After review of our sister states' jurisprudence in

that its opinion "should not be construed to modify--

this area, our supreme court concluded that

either to enhance or diminish--the due process


protections we have always required at bail hearings."

the State must show that the defendant "more

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

likely than not" committed the crime of murder (or


treason). Such a showing, at such an early stage

In light of this reassessment of the burden of proof in

of the process, seems sufficient to justify the

bail hearings, we are called upon today to determine

denial of bail given the severity of the proposed

whether a defendant is allowed to present evidence of

offense and the attendant consequences. After

an affirmative defense to rebut the State's strong

all, at that point the trial court--while not pre-

presumption that the defendant more likely than not

judging the ultimate guilt or innocence of the

committed the murder (or treason) accused of.

defendant--can reasonably say "the defendant


most likely did it."

While Satterfield answered this issue of first


impression in the affirmative and suggests that we

Id. at 448. As such,

should impose on the trial court a requirement to


assess a defendant's justifiable defenses during a bail

the State must [] present competent evidence

proceeding, the State maintains that "[p]ossible

either upon which those charging documents

defenses have no bearing on the bail issue." (State's

relied or upon which the State intends to rely at

Br. p. 13). "Requiring the State to negate a defense--

trial. Additionally the evidence cannot simply be

such as the self-defense claim made here--could

statements by the prosecutor as to what the proof

result in a bail hearing becoming a mini-trial that in

will--or might--be at trial. The magistrate must be

some cases could consume countless hours of the

shown information at the hearing from which he

trial court's time." (State's Br. p. 13). After hearing the

can make his own independent determination

parties' respective arguments, the trial court opined it

whether there is admissible evidence against an

was not allowed to "weigh potential defenses." (Tr. p.

accused that adds up to strong or evident proof of

74). We disagree.

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-

In order to preserve the presumption of innocence

included offense such as voluntary or involuntary

and to fully retain the constitutional due process

manslaughter.

rights, a defendant must be awarded the opportunity


to present evidence and witnesses on his or her

Id. at 449 (internal citations omitted).

behalf in an endeavor to rebut the State's burden that


he or she "more likely than not committed the crime of

Although the Fry court shifted the burden of proof and

murder (or treason)."

clarified the standard of necessary evidence to


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

[...]

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and, thus, abused its discretion. Accordingly, we
II. Application to the Facts

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.

Here, Satterfield was charged with knowingly killing


Brown. Despite Satterfield's admission that he shot

CONCLUSION

Brown, he presented evidence that he might have


used this deadly force in self-defense. The evidence

Based on the foregoing, . . . extraordinarily compelling

reflects that while Satterfield was in his own vehicle,

reasons warrant a review of Satterfield's argument on

Brown forcefully attempted to enter the car while

the merits. Upon review of the evidence, we reverse

holding a shiny object. Satterfield fired a single shot.

the trial court's denial of bail and remand for a new


bail hearing with instructions to weigh Satterfield's

However, after being presented with Satterfield's

evidence of self-defense.

evidence, the trial court refused to weigh any


evidentiary facts alluding to a possible self-defense

Reversed and remanded.

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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:
[...]

Betliskey is seeking to have R.C. 2901.05(A), which


requires the defendant to bear the burden of proof

Jury Instructions on Duty to Retreat

when raising a self-defense claim, declared


unconstitutional. Betliskey recognizes that the United

In the fourth assigned error, Betliskey argues the trial

States Supreme Court upheld the constitutionality of

court erred by giving a duty to retreat instructions.

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).

As previously discussed, Betliskey requested and

However, Betliskey claims a different result is now

received a self-defense jury instruction. The duty to

warranted in light of the ruling in Dist. of Columbia v.

retreat is one element of the black letter law that must

Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d

be satisfied to successfully utilize the affirmative

637 (2008).

defense of self-defense in a case where a defendant


used deadly force. Thus, a self-defense jury

Initially, as an inferior court to the United States

instruction that did not include the duty to retreat,

Supreme Court, we are bound to follow the Martin

would be incomplete. Betliskey cannot request a jury

decision and have no authority to overturn it. Loyed,

instruction on self-defense and at the same time

8th Dist. Cuyahoga No.83075, 2004-Ohio-3961 at

complain that the trial court discussed the duty to

33. Further, this court has previously rejected the

retreat. Betliskey cannot have and eat the proverbial

argument that Heller requires a different result. State

cake too. As such, we find no merit in this assertion.

v. Warmus, 197 Ohio App. 3d 383, 2011-Ohio-5827,

Accordingly, we overrule the fourth assigned error.

967 N.E.2d 1223, 42-47 (8th Dist.); State v. Hudson,


8th Dist. Cuyahoga No. 96986, 2012-Ohio-1345. See

Self-Defense and Ohio's Burden of Proof

also State v. Geter-Gray, 9th Dist. Summit No. 25374,

Unconstitutional

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

In the fifth assigned error, Betliskey argues that

In Heller, the court held that the Second Amendment

placing the burden of proof of self-defense on the

protects an individual's right to possess a firearm in

defendant is unconstitutional.

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


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arms. Id. at 599. While Heller recognizes a right to

fifth assigned error.

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


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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:
[...]

(i) the actor, with the intent of causing


death or serious bodily injury, provoked

A claim of self-defense "tends to negate the malice

the use of force against himself in the

required for murder" and the unlawfulness of the

same encounter; or

killing. See Sepulveda, 55 A.3d at 1143 (citation


omitted); Commonwealth v. Hilbert, 382 A.2d 724, 731

(ii) the actor knows that he can avoid the

(Pa. 1978). Section 505 of the Crimes Code defines

necessity of using such force with

self-defense, in part, as follows:

complete safety by retreating, except the


actor is not obliged to retreat from his

(a) Use of force justifiable for protection of the

dwelling or place of work, unless he was

person.--The use of force upon or toward another

the initial aggressor or is assailed in his

person is justifiable when the actor believes that

place of work by another person whose

such force is immediately necessary for the

place of work the actor knows it to be.

purpose of protecting himself against the use of


unlawful force by such other person on the

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

present occasion.
(b) Limitations on justifying necessity for use of
force.-The Pennsylvania Supreme Court has observed,
***
When a defendant raises the issue of self(2) The use of deadly force is not justifiable

defense, the Commonwealth bears the burden to

under this section unless the actor believes

disprove such a defense beyond a reasonable

that such force is necessary to protect himself

doubt. While there is no burden on a defendant to

against death, serious bodily injury,

prove the claim, before the defense is properly at

kidnapping or sexual intercourse compelled

issue at trial, there must be some evidence, from

by force or threat; nor is it justifiable if:

whatever source, to justify a finding of self-

defense. If there is any evidence that will support


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the claim, then the issue is properly before the

motives to fabricate their identification of Appellant.

fact finder.

Furthermore, Appellant did not testify. In light of this


record, there was some legal and evidentiary support

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

for the trial court's ruling that Appellant was not

2001) (citations omitted). Because self-defense

entitled to avail himself of self-defense because he

negate elements of murder, a defendant has no

presented a defense denying his involvement in the

burden of proving this affirmative defense.

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

Commonwealth v. Mouzon, 53 A.3d 738, 743 (Pa.

A.2d at 1074.

2012). Rather, where any evidence gives rise to a


claim that self-defense is "properly joined," the

Although Appellant did not expressly admit shooting

Commonwealth must disprove the defense beyond a

at the car, he did not specifically deny the charge.

reasonable doubt. Id.

Moreover, the Commonwealth's own evidence--i.e.,


the prior statements of Selina Williams and Sean

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

Jenkins--contained Appellant's admissions that he

that the appellant admit that the shooting was

shot at the car. Because selfdefense may be raised

intentional in order to protect one's self."

from any evidence, we further consider whether there

Commonwealth v. Philistin, 53 A.3d 1, 12 (Pa. 2012)

was a legally sufficient basis to claim self-defense in

(citation omitted). Similarly, this Court has held,

the record, assuming, as we must, that Appellant was

"[W]here a defendant denies the act of using deadly

closest to the car and was the primary shooter. See

force in defense of himself, he has negated one of the

Philistin, 53 A.3d at 12.

elements of self-defense; therefore, he may not avail


himself of an instruction on justification even though

Appellant, in claiming self-defense, relies on the

evidence from other sources would be sufficient to put

statements of Selina Williams and Sean Jenkins to

the claim in issue." Mayfield, 585 A.2d at 1075.

police. Selina, on January 25, 2011, gave a statement

Moreover, a defendant may not provoke or continue

to police suggesting that Appellant, Codefendant, and

"the difficulty" that led to the slaying and then claim

Coles left her home and returned after several

self-defense. Mouzon, 53 A.3d at 751 (physical fight

minutes. When they returned to the home, Williams

leading to alleged need to use force did not occur

stated the following conversation ensued:

spontaneously but was culmination of ongoing


confrontation initiated by defendant).

I asked what was going on. They said the boys


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

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

I asked them what that mean and they told me

emphasized that others in the Williamses' home,

that one of the boys pulled out a gun. . . .

including Dante Williams, could have killed Decedent.


Trial counsel extensively cross-examined the

***

Commonwealth's witnesses to suggest bias and


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

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

And the guy said, What's up? Then he said he


started clapping. He said that they hollered. He

The trial record also established the following

hollered back at them.

circumstances. Sean Jenkins was inside the


Williamses' home and saw suspicious activity around

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

the car near the intersection of Washington Lane and

"clapping" meant shooting. Id. at 91. She also stated,

Musgrave Street. Jenkins believed the individuals

"They didn't say shooting. They said hollering. That's

were involved in the dispute between Jarrell and

the way they talk." Id.

Dante Williams. Jenkins called Mikeal Coles, after


which Coles arrived with two males, Appellant and

Sean Jenkins, on January 25, 2011, also gave a

Codefendant. Coles was aware of Jenkins's concern

statement to police. According to Jenkins:

regarding the car. Coles, Appellant, and Codefendant


then left the residence, but returned to the back door

So [Coles] came over with two dudes and

of the residence.

everything was quiet for about like 20 or 30


minutes. And then they were going to roll out.

Thus, even accepting the suggestion that the


occupants of the car "got rough," "hollered," showed a

So they rolled out and like in a couple

gun, or started to get out of the car, we conclude self-

of minutes they came running back in

defense was not available. First, there was no basis

the house. They were banging on the

in the record supporting a finding that the use of

back door. So when I let them in,

deadly force was immediately necessary. Rather, the

they're in my living room and they're

evidence established Coles, Appellant, and

out of breath and they're telling me

Codefendant arrived at and stayed inside the

what just happened.

Williamses' home before the shooting. See 18


Pa.C.S. 505(a). Second, the record established

[Codefendant] tells me that they were walking up

Appellant, along with Codefendant, provoked the

the back driveway . . . and when he got to the end

encounter with Decedent with an intent to cause

of the driveway, he noticed like three or four

serious bodily injury when they left the home with

dudes sitting in a little car. And [Appellant] walked

pistols and approached the car, and Appellant

up to the car and asked the driver, What y'all

confronted the occupants of the car. See 18 Pa.C.S.

doing? And then [Appellant] said that the driver

505(b)(2)(i). Thus, there was unrebutted evidence that

started getting out of the car, and that's when

Appellant and Codefendant were responsible for


setting in motion the sequence of events that led to

[Codefendant] said that he and [Appellant] started

the confrontation with Decedent and the encounter

shooting at the dudes in the car.

that gave rise to his alleged need to use deadly force


in self-defense. See Mouzon, 53 A.3d at 751.

[Codefendant] told me that [Coles] stayed back


up in the driveway.

In sum, Appellant did not admit to the shooting and


his defense questioned the reliability of the evidence

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identifying him as the shooter. The totality of the

Accordingly, we agree with present counsel that

circumstances, moreover, established that Appellant

Appellant's request for a self-defense jury instruction

interjected himself into a volatile situation, needlessly

lacked a basis in the governing law and the trial

escalated the probability of violence, and along with

record.

Codefendant, instigated the specific encounter that


gave rise to the alleged need to use deadly force.

[...]

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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:
[...]

(Tex.Crim.App. 1999). This rule preserves the jury's


role as the arbiter of the credibility of the witnesses.

Appellant raises a single issue on appeal in which he

Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App.

faults the trial court for failing to include a charge on

1991)(op. on reh'g).

self-defense, contending that while the testimony may


have been conflicting, there was testimony supporting

The initial burden to produce evidence supporting a

the defense.

claim of self-defense is on the defendant. See Zuliani


v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003).

SELF-DEFENSE INSTRUCTION

But once the defendant produces some evidence, the


State bears the ultimate burden of persuasion to

Appellant complains that the trial court refused to

disprove the raised defense. Saxton v. State, 804

include an instruction on self-defense. A trial judge

S.W.2d 910, 913 (Tex.Crim.App. 1991). The issue of

must give a requested instruction on every defensive

self-defense is a fact issue to be determined by the

issue raised by the evidence without regard to its

jury, which is free to accept or reject any defensive

source, its strength, or whether it is contradicted or

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

credible. Juarez v. State, 308 S.W.3d 398, 404-05


(Tex.Crim.App. 2010)(defendant's conflicting

Self-defense is statutorily defined. Tex.Pen.Code Ann.

statements did not negate duty of the trial judge to

9.31 (West 2011) provides that a "person is justified

submit defense); Shaw v. State, 243 S.W.3d 647,

in using force against another when and to the degree

657-58 (Tex.Crim.App. 2007). The defendant's only

the actor reasonably believes the force is immediately

burden is to present that minimum quantity of

necessary to protect the actor against the other's use

evidence sufficient to support a rational jury finding

or attempted use of unlawful force." Id.5 The defense

each element of the defense. Shaw, 243 S.W.3d at

can turn on the defendant's conduct. For instance,

658 ("a defense is supported (or raised) by the

one cannot claim self-defense if he has provoked

evidence if there is some evidence, from any source,

another's use or attempted use of unlawful force

on each element of the defense that, if believed by

unless "the actor abandons the encounter, or clearly

the jury, would support a rational inference that that

communicates to the other his intent to do so" and

element is true."); Granger v. State, 3 S.W.3d 36, 38


"the other nevertheless continues or attempts to use
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unlawful force against the actor." Id. at 9.31(b)(4).

testified that he was let into the apartment and the

When the defense applies, a person is justified in

door was locked behind him. His trial testimony also

using deadly force "when and to the degree the actor

supported the claim that Osman had threatened him

reasonably believes the deadly force is immediately

three times before, two times with a knife. From this,

necessary . . . to protect the actor against the other's

a jury might conclude that he had a reasonable belief

use or attempted use of unlawful deadly force." Id. at

that deadly force was necessary to protect himself.

9.32(a)(2)(A).
The jury also had before it Appellant's out of court
Self-defense is also one of the confession and

statements made at the hospital as related by his

avoidance defenses. Shaw, 243 S.W.3d at 657-58.

brother and the police officers. These statements

Under such a defense, one must admit to the

would be sufficient to allow the jury to infer that

underlying criminal act, the culpable mental state, and

Appellant was admitting to all of the elements of the

then raise the defense as justification for their

underlying offense, at least with respect to stabbing

conduct. Id at 658; Ex parte Nailor, 149 S.W.3d 125,

Osman. He told his brother his hand was cut when he

133 (Tex.Crim.App. 2004)(defendant who contended

got the knife away from Osman. He claimed that

at trial that victim was injury by accident had not

Osman had stabbed him in the hand and chest. He

confessed to elements of offense and could not raise

then grabbed the knife and stabbed Osman. We

self-defense).

readily concede that Appellant's version of events at


the hospital is conflicting. But under the established

After the State rested, the trial judge expressed

case law, our role is not to resolve these conflicts.

skepticism about the self-defense theory. After

Juarez v. State, 308 S.W.3d at 404-05 (defendant's

Appellant testified, the trial judge rejected the

conflicting statements did not negate duty of the trial

instruction because Appellant had not admitted to the

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

offense. We agree with Appellant that with respect to

657-58.

the aggravated assault charge, there was some


evidence to support inclusion of the defense. Based

Having found error, we next consider whether it was

on his many contradictions, a jury might well have

harmful. Looking to each of the four factors identified

rejected his defense, but that was for the jury to

in Almanza, we conclude the absence of the self-

decide.

defense instruction was harmful. 686 S.W.2d at 171.


Considering the charge as a whole, there is no other

Appellant's trial testimony certainly does not fully

instruction which would excuse Appellant's conduct

establish the defense. At trial, he recalled only those

based on his reaction to Osman attacking him.

details up to the point that he wrestled the knife away

Rather, the jury would be compelled to find him guilty

from Osman, and he claimed to have forgotten

if they believed that he intentionally, knowingly, or

everything after that point. But his trial testimony

recklessly caused serious bodily injury to Osman with

would permit a jury to infer, if it so chose, that he was

a knife. But this is precisely what someone would

peaceably let into the apartment and did not provoke

justifiably do if they were acting in self-defense and

Osman. It was Osman who had a knife and then tried

were confronted with deadly force. Without the self-

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

defense instruction, Appellant had no defense at all.

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of which involved a knife. And while Appellant's
For this reason, the denial of a confession and

version of events at the hospital was conflicting, one

avoidance type of instruction is generally deemed

common thread was that Osman first started the

harmful. See, e.g., Vasquez v. State, 830 S.W.2d 948,

violence.

951 (Tex.Crim.App. 1992) (omission of instruction on


necessity defense harmful); Miller v. State, 815 S.W.

The argument of counsel throughout the trial also

2d 582, 586 (Tex.Crim.App.1991)(omission of

suggests some harm to Appellant from the absence of

instruction on mistake-of-fact defense harmful); Hill v.

the instruction. Appellant's counsel had worked self-

State, 765 S.W.2d 794, 797-98 (Tex.Crim.App.1989)

defense into his questioning of several witnesses. But

(omission of instruction on mistake-of-fact defense

once the instruction was taken away, Appellant was

harmful); Johnson v. State, 271 S.W.3d 359, 368-69

left with essentially nothing left to argue in the guilt

(Tex.App.--Beaumont 2008, pet. ref'd)(omission of

innocence phase of the trial. The State's prosecutor

self-defense instruction harmful). In 2013 the Court of

drove this point home at the outset of his closing

Criminal Appeals noted that its survey of case law up

statement when he told the jury "[t]hose things are not

to that point found no cases in which "the omission of

in here for you to consider; for example, there is no

a defensive instruction under a confession and

place in any of them, that says self-defense. You're

avoidance theory to be harmless." Cornet v. State,

not allowed to consider self-defense. . . . It's not a

417 S.W.3d 446, 451 (Tex.Crim.App. 2013). Cornet

debate for you to have."

held the omission of a "medical-care defense"


harmless, but principally because the jury's finding to

In the related appeal involving Norma, we affirmed the

a related charge necessarily negated the factual basis

conviction and rejected a claim that the jury should

for the defense. Id. at 452.

have been instructed on self-defense. We distinguish


between Norma and Osman based on the record

The evidence on self-defense was conflicting. Both

before us. As to Norma, there was no development of

Osman and Appellant claimed the other pulled the

facts to explain why Appellant would have stabbed

knife first and attacked each other first. Appellant's

Norma in her apartment, and much less as she lay

version was disjointed in the sense that part of the

incapacitated on the staircase. With regard to Osman,

story came from his trial testimony, and part from

however, there was some evidence to support the

hearsay statements at the hospital, but it was for the

defense.

jury to decide if those pieces could be woven into a


convincing whole. Appellant's version was at least

For these reason, we sustain Issue One and reverse

bolstered by three prior threats made by Osman, two

and remand for a new trial.

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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

State objected, maintaining that the instruction was


already reflected in the charge. Appellant next

In this case, on appellant's request, the trial court

complained that the self-defense jury instruction

included an instruction on self-defense in the court's

"talk[ed] about the duty of a defendant to retreat.

jury charge. In the abstract portion of the court's

That's nowhere in the statute." Both the prosecutor

charge, the trial court instructed the jury as follows:

and the trial court maintained that the duty to retreat


"[is] in the law." The court overruled appellant's

Upon the law of self defense [sic] you are

request for his submission and retained the language

instructed that a person is justified in using force

relating to the duty to retreat in the charge. In his third

against another when and to the degree he

point of error, appellant argues that the trial court

reasonably believes the force is immediately

erroneously instructed the jury that appellant had a

necessary to protect himself against the other's

duty to retreat in order for the law of self-defense to

use or attempted use of unlawful force.

apply. He further maintains that the incorrect


instruction on self-defense caused him harm.

A person is justified in using force against


another: (1) if he would be justified in using force

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

against the other; and (2) if a reasonable person

we determine whether error exists; if so, we then

in the defendant's situation would not have

evaluate whether sufficient harm resulted from the

retreated; and (3) when and to the degree he

error to require reversal. Kirsch v. State, 357 S.W.3d

reasonably believes the force is immediately

645, 649 (Tex. Crim. App. 2012); Ngo v. State, 175

necessary to protect himself against the other's

S.W.3d 738, 743--44 (Tex. Crim. App. 2005). The trial

use or attempted use of unlawful force.

court must charge the jury on the "law applicable to


the case," which requires that the jury be instructed

"Reasonable belief" means a belief that would be

on each element of the offense charged. See Tex.

held by an ordinary and prudent person in the

Code Crim. Proc. art. 36.14; see also Dinkins v. State,

same circumstances as the defendant.

894 S.W.2d 330, 339 (Tex. Crim. App. 1995). The trial
court is also required to instruct the jury on statutory

During the charge conference, appellant requested an

defenses, affirmative defenses, and justifications

additional instruction to explain self-defense.7 The


when they are raised by the evidence and requested
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by the defendant. Walters v. State, 247 S.W.3d 204,

assess whether the appellant has suffered actual

208--09 (Tex. Crim. App. 2007).

harm "in light of the entire jury charge, the state of the
evidence, including the contested issues and weight

Under the Texas self-defense statute, a person may

of probative evidence, the argument of counsel and

use deadly force if he reasonably believes such force

any other relevant information revealed by the record

is immediately necessary to protect himself from

of the trial as a whole." Vega, 394 S.W.3d at 521

another person's use or attempted use of deadly

(quoting Almanza, 686 S.W.2d at 171). We engage in

force. See Tex. Penal Code 9.32. Before 2007, the

this assessment to illuminate the actual, not just

deadly-force self-defense statute contained a

theoretical, harm to the accused. Almanza, 686 S.W.

provision imposing a general duty to retreat, providing

2d at 174; see Cornet v. State, 417 S.W.3d 446, 449

that the use of deadly force was justified only "if a

(Tex. Crim. App. 2013) ("This means that the trial

reasonable person in the actor's situation would not

record must demonstrate that there is some actual

have retreated." See Act of May 16, 1995, 74th Leg.,

harm and not just a theoretical complaint.").

R.S., ch. 235, 1, 1995 Tex. Gen. Laws 2141,


2141--42 (amended 2007) (current version at Tex.

Beginning with the jury charge itself, we observe that

Penal Code 9.32); Morales v. State, 357 S.W.3d 1,

in addition to erroneously instructing the jury in the

6 (Tex. Crim. App. 2011). However, effective

abstract portion of the charge that a person was

September 1, 2007, the Legislature amended the

justified in using force against another only if a

statute to delete the language regarding a general

reasonable person in the defendant's situation would

duty to retreat. Morales, 357 S.W.3d at 4--5; McBride

not have retreated, the trial court included the duty to

v. State, 359 S.W.3d 683, 694 (Tex. App.--Houston

retreat in each of the self-defense application

[14th Dist.] 2011, pet. ref'd). Because this general

paragraphs. Thus, the jury charge, in four different

duty to retreat was removed from the self-defense

places--the abstract portion of the charge and three

statute in 2007, the self-defense instruction given

self-defense application paragraphs--impermissibly

here--indicating that appellant had a duty to retreat--

instructed the jury to determine whether there was a

was erroneous. See Morales, 357 S.W.3d at 6.

general duty to retreat. See Morales, 357 S.W.3d at


5--6 (jury instruction on general duty to retreat

If the trial judge charges on a defensive issue but fails

constituted comment on weight of evidence). Nothing

to do so correctly, this is charge error subject to

in the remainder of the charge instructed the jury that

review under Almanza. Vega v. State, 394 S.W.3d

it should not determine, as a general matter, whether

514, 519 (Tex. Crim. App. 2013); see Almanza v.

a duty to retreat existed. See id. at 6. Accordingly, the

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

remainder of the jury charge did not alleviate the

(op. on reh'g) (setting forth analysis for determining

harm caused by the incorrect self-defense instruction.

whether jury charge error requires reversal). Under

Thus, consideration of the entirety of the jury charge

Almanza, if the jury charge error has been properly

weighs in favor of a finding of harm.

preserved by an objection or request for instruction,


as in this case, reversal is required if the appellant

Next, we must consider the state of the evidence and

has suffered "some harm" from the error. Vega, 394

determine whether the jury charge error related to a

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

contested issue. Appellant did not testify at trial. The

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defensive theories were presented through the State's

maintained that he did not cause her injuries. He

evidence--primarily the recording of appellant's

repeatedly denied ever hitting or kicking Gay. In fact,

interview with the detective--and the cross

even as he conceded that Gay "might have" been

examination of the State's witnesses. During his

hurt during the struggle over the gun, he still insisted

interview with the detective, appellant gave his

he "never hit her." Further, when the detective

version of the events. He indicated that when he and

showed appellant photographs of Gay's injuries and

Ofelia picked up his daughter that evening for his

asked if he could explain them, he said that they were

visitation, Gay asked him to stay but he declined and

probably self-inflicted. When the detective directly

went home with Ofelia and his daughter. According to

asked appellant if he "did this" (caused the injuries

appellant, Gay then showed up at his house in Kyle at

depicted in the photographs), he responded, "No."

about 4:00 in the morning. She knocked on his

When the detective admonished appellant that he

window and said that if he wanted to get his stuff, he

needed to be honest and expressed her opinion that

needed to come and get it now. When he told Gay

more happened than he was telling her, appellant

that he did not have any gas in his car, she offered to

insisted that he "didn't do anything" to Gay.

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

There was but the barest scintilla of evidence that

gas--he and Gay in her car, Ofelia and his daughter in

during his encounter with Gay, appellant was "fighting

his car.9 After filling up, they went to Gay's house.

for [his] life" and thus may have unintentionally injured

When he realized it was going to take time to sort out

Gay during his attempts to protect himself from her.

what things he could take, he sent Ofelia home,

However, appellant's primary defense was that he did

telling her that Gay would just drop him off. Appellant

not cause Gay's injuries at all, that they were self-

told the detective that eventually he got tired of

inflicted, and that the events had not transpired as

waiting for Gay to decide what he could take, so he

Gay claimed. The secondary defense was that if she

told Gay to just take him home. He said that when

was injured during the struggle, it was not his fault

they were in her car, she pulled her gun out of her

because he was acting in self-defense. The self-

pocket and threatened to kill him and Ofelia.

defense theory applied only to three of the five

According to appellant, they struggled over the gun

charges, and it was a marginal theory at best. A

and fell out of her car during the struggle. He said that

comparison of the photographs of Gay's extensive

he had his arms wrapped around Gay from behind

injuries and appellant's minimal injuries demonstrates

when she fired the gun multiple times. Appellant told

the unlikelihood that Gay's injuries were self-inflicted

the detective that he got away from Gay and called

and refutes appellant's repeated claim that he "didn't

Ofelia to come pick him up. He showed the detective

do anything" to Gay. Under the circumstances, we

an injury he had on his thumb where either the

cannot conclude that, given the weak evidence of

hammer of the gun pinched him or the flash from the

self-defense combined with appellant's adamant

gunshot burned him.

denial that he caused Gay's injuries, the state of the


evidence demonstrates that the trial court's erroneous

While giving his version of the events, appellant said

instructions on the general duty to retreat caused

that he was "fighting for his life" and was "just trying to

appellant harm. Thus, after reviewing the evidence in

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


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the record, we conclude that the state of the evidence

defense is justification for one's actions, the assertion

weighs against a finding of harm.

of the defense necessarily requires an admission that


the alleged conduct occurred. Anderson v. State, 11

Concerning jury argument, both the State and

S.W.3d 369, 372 (Tex. App.--Houston [1st Dist.] 2000,

appellant's counsel briefly mentioned self-defense in

pet. ref'd); see Shaw v. State, 243 S.W.3d 647, 659

closing arguments. However, neither side

(Tex. Crim. App. 2007) ("[A] defensive instruction is

emphasized the erroneous jury instruction or

only appropriate when the defendant's defensive

appellant's purported duty to retreat but instead only

evidence essentially admits to every element of the

referred generally to the concept of whether

offense including the culpable mental state, but

appellant's conduct was justified because he was

interposes the justification to excuse the otherwise

acting in self-defense. The prosecutor argued that as

criminal conduct."). Assertion of self-defense is

the aggressor, appellant did not act in self-defense.11

inconsistent with a denial of the conduct. Ford v.

Appellant's trial counsel reminded the jury that

State, 112 S.W.3d 788, 794 (Tex. App.--Houston [14th

appellant told the detective in the interview that he

Dist.] 2003, no pet.). Thus, a defendant is not entitled

"had to fight for his life." Also during his argument,

to an instruction on self-defense if "he claims that he

appellant's counsel referred the jury to the court's

did not perform the assaultive acts alleged, or that he

self-defense instruction in the charge. However, he

did not have the requisite culpable mental state, or

did not emphasize the erroneous portion regarding

both." VanBrackle v. State, 179 S.W.3d 708, 715 (Tex.

the general duty to retreat but referred to the fact that

App.--Austin 2005, no pet.) (citing Ex parte Nailor,

it was "immediately necessary" for appellant to react

149 S.W.3d 125, 134 (Tex. Crim. App. 2004)).

as he did to protect himself from Gay. Overall, in the


context of the entire jury argument, neither side

In this case, although appellant admitted that he

focused on self-defense and neither side argued that

struggled with Gay for the gun, he did not admit that

appellant had a duty to retreat. Thus, we conclude

he committed the assaultive conduct alleged.

that the arguments of counsel do not weigh in favor of

Appellant repeatedly denied ever hitting or kicking

a finding of harm.

Gay, adamantly maintained that he did not cause her


injuries, asserted that the injuries were self-inflicted

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

by Gay, and suggested that the injuries were caused

fact that appellant was not actually entitled to a jury

by other objects (such as the mailboxes) during their

instruction on self-defense in this case to be relevant

struggle over the gun. Thus, because appellant did

information in evaluating harm. A defendant is entitled

not admit to committing the alleged conduct, he was

to a self-defense instruction if the issue is raised by

not entitled to an instruction on self-defense. See

the evidence, regardless of whether that evidence is

Maxwell v. State, No. 03-06-00473-CR, 2007 Tex.

weak or strong, unimpeached or contradicted, and

App. LEXIS 6356, 2007 WL 2274883, at *2 (Tex.

regardless of what the trial court may think about the

App.--Austin Aug. 6, 2007, no pet.) (mem. op., not

credibility of the witnesses or the viability of the

designated for publication) ("A defendant must

defense. Allen v. State, 253 S.W.3d 260, 267 (Tex.

sufficiently admit to the commission of the offense for

Crim. App. 2008); Ferrel v. State, 55 S.W.3d 586, 591

which the defensive instruction is requested."). We

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

conclude that the fact that appellant was not entitled

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to a self-defense jury instruction under these

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

circumstances weighs against a finding of harm.


CONCLUSION
In sum, except for the jury charge itself, the factors
discussed above militate against a finding of harm.

Having concluded . . . that the erroneous self-defense

Accordingly, after reviewing the record and

instruction in the jury charge did not cause appellant

considering the relevant factors, we hold that the

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

erroneous self-defense instruction did not harm

conviction.

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