determining that defendant was harmed by 17 absence of defensive instruction where defendant admitted that she stabbed victim “to stop him from jumping on her or hitting her” but where “jury was not instructed to consider” defensive theory, which prevented jury from considering acquitting defendant “by reason of her immediate need to defend herself”
How later courts described this case
- determining that defendant was harmed by 17 absence of defensive instruction where defendant admitted that she stabbed victim “to stop him from jumping on her or hitting her” but where “jury was not instructed to consider” defensive theory, which prevented jury from considering acquitting defendant “by reason of her immediate need to defend herself”
- holding evidence from friends of defendant who had witnessed past acts of violence and verbal abuse directed toward her by deceased was evidence establishing defendant’s “fear” of apparent danger at the time of stabbing
- finding trial court’s refusal to submit self-defense instruction harmful as after defendant admitted offense jury was left with no choice but to convict
- noting as part of harm analysis that defendant questioned jury panel on defensive theory
Written by the judges who cited it.
The opinion
HOLLIS HORTON, Justice,
dissenting.
In my opinion, the majority does not properly place the burden of producing evidence on each of the elements of Johnson’s claim of self-defense. Because Johnson did not meet her burden of production on two of the elements of her claim of self-defense, the trial court did not err in refusing her requested instruction. As a result, I dissent.
With respect to a claim of self-defense, the defendant bears the burden to “produce some evidence to support the particular defense.” Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App.1991). If the defendant meets that burden, the State would then shoulder the burden of persuasion to disprove the defense. Zuliani, 97 S.W.3d at 594 .
To justify her use of deadly force under the version of the Penal Code governing self-defense at the time of the offense, Johnson was generally required to produce some evidence to show that a reasonable person, under the circumstances, would not have retreated. See Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, sec. 9.32(a)(2), 1995 Tex. Gen. Laws 2141 , 2141-42, amended by Act of March 20, 2007, 80th Leg., R.S., ch. 1, §§ 3, 5(a), 6, 2007 Tex. Gen. Laws 1 , 1-2; see also Juarez v. State, 886 S.W.2d 511, 513-14 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); Broussard v. State, 809 S.W.2d 556, 558-60 (Tex.App.-Dallas 1991, pet. ref'd). The version of the self-defense statute then in effect relieved a person using deadly force from her duty to retreat if, at the time of the incident, the force was used while the victim was “committing an offense of unlawful entry in the habitation of the actor.” See Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, sec. 9.32(b), 1995 Tex. Gen. Laws 2141 , 2142, amended by Act of March 20, 2007, 80th Leg., R.S., eh. 1, §§ 3, 5(a), 6, 2007 Tex. Gen. Laws 1 , 1-2.
The entry-of-habitation exception does not apply under the facts in this case. *370 There is no evidence the victim unlawfully entered Johnson’s house; instead, the evidence reflects that for the previous five years, Johnson and the victim resided together in Johnson’s home, which was owned by her father. The testimony further reflects that the stabbing did not occur inside the home, but instead occurred in front of the home on the porch or on a sidewalk. There was also no evidence that a reasonable person would not have retreated under the circumstances. The majority errs in utilizing a subjective standard to explain why it believes Johnson did not retreat rather than the “reasonable person” standard required by the statute. See Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, sec. 9.32(a)(2).
During the guilt/innocence phase of the trial, Johnson did not testify, and most of the evidence concerning the altercation is based on the statement she gave to the police on the night of the incident. In my opinion, Johnson’s statement tends to show that she followed the victim out into the yard, as the altercation that involved Johnson’s use of the knife began inside the home. Moreover, there is no testimony from any witness tending to show that Johnson could not retreat before the stabbing occurred. Johnson’s statement reflects that there were neighboring homes. Why Johnson did not go to a neighbor’s home or stay inside her home when the victim went out is completely unexplained. Where there is no evidence that Johnson tried to retreat or that she could not have retreated, the trial court is not required to instruct the jury on self-defense. Rainey v. State, 949 S.W.2d 537, 543 (Tex.App.-Austin 1997, pet. ref'd).
Thus, because the statutory exception did not apply, and because the circumstances of the stabbing do not allow an inference that retreat was not reasonably available, Johnson was not relieved of her burden of production on this element of her defense. Because Johnson did not meet her burden, the trial court did not err in refusing Johnson’s requested instruction on self-defense.
We could also sustain the trial court’s ruling that refused Johnson’s requested self-defense instruction because the self-defense statute applicable here contained a subjective standard of reasonableness. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 9.31(a), 1993 Tex. Gen. Laws 3586 , 3598 (“[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.” (emphasis added)), amended by Act of March 20, 2007, 80th Leg., R.S., ch. 1, § 2, 5(a), 6, 2007 Tex. Gen. Laws 1 , 1-2; Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, sec. 9.32(a)(3), 1995 Tex. Gen. Laws 2141 (Person justified in using deadly force “when and to the degree he reasonably believes the deadly force is immediately necessary[.]” (emphasis added)), amended by Act of March 20, 2007, 80th Leg., R.S., ch. 1, § 3, 5(a), 6, 2007 Tex. Gen. Laws 1 , 1-2. “The statute necessarily contemplates that the force used by a defendant must be reasonable as contemplated from the defendant’s point of view.” Reed v. State, 703 S.W.2d 380, 384 (Tex.App.-Dallas 1986, pet ref'd).
While there is certainly evidence that Johnson reasonably feared that the victim might strike her with his fists, there is no evidence to show that Johnson feared she might suffer any serious bodily injury or death at the time she stabbed the victim or that Johnson reasonably believed the victim’s fists were deadly weapons. There is no evidence that Johnson thought the use of deadly force (in contrast to using non-deadly force) was immediately necessary to protect herself from the victim’s im *371 pending assault. The evidence in the record does not show that Johnson subjectively believed that deadly force was necessary to meet the threat that the victim posed to her. The necessity of her proof on this element is illustrated by Werner v. State, 711 S.W.2d 639, 644 (Tex.Crim.App.1986), where the Texas Court of Criminal Appeals held that “[i]n absence of evidence of use or attempted use of deadly force by the deceased, the statutory defense permitted by § 9.32 is not available, and a defendant is not entitled to a jury instruction.” See also Dominguez v. State, 506 S.W.2d 880, 882 (Tex.Crim.App.1974) (“Since appellant did not testify, there is no evidence that appellant believed himself to be in danger or feared that [the] deceased was about to kill or seriously injure him.”). On this record, I cannot infer that Johnson, when she stabbed the victim, reasonably thought that he was about to kill or seriously injure her. While it is possible that she might have formed such a subjective belief, there is no evidence that she did. Moreover, we do not know what Johnson subjectively believed at the time because she did not testify. The majority errs when it infers that Johnson believed she was facing deadly force based upon the victim’s clenching of his ñsts and threats of assault. Consequently, I cannot determine that the trial court erred in refusing the requested instruction.
Finally, there is no testimony from any witness that the victim had ever threatened to kill Johnson, or that Johnson had previously expressed fear that the victim might kill her. Nor is there testimony that the victim on prior occasions had caused Johnson to suffer a serious bodily injury. In Lavern v. State, 48 S.W.3d 356, 360 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd), the Fourteenth Court noted that “[w]hile a non-testifying defendant may be entitled to a charge on self-defense, it is rare for the defense to be raised when the defendant fails to testify.” I acknowledge that one of Johnson’s friends testified that she believed that the victim caused Johnson to suffer a black eye on two prior occasions and that she saw the victim hit Johnson in the head on one occasion. 1 Another of Johnson’s friends saw the victim on a prior occasion choke Johnson. 2 Nevertheless, even with the testimony of these two witnesses, the record is devoid of any evidence that the victim had previously caused Johnson any serious bodily injury or that Johnson feared that she might suffer a serious bodily injury on the evening that she stabbed the victim in the heart.
To support a claim of self-defense that justified her use of deadly force, Johnson bore the burden of producing evidence to show her subjective belief that deadly force was immediately necessary to avoid her suffering death or serious bodily injury. 3 On this record, the trial court correctly refused the instruction because Johnson did not met her burden of production on that element of her self-defense claim. Because the majority finds that Johnson was entitled to the defense when on this record she was not, I dissent.
. The testimony does not reflect that Johnson suffered any serious injury in these incidents.
. The testimony does not reflect that an injury resulted from this incident.
. " 'Deadly force’ means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” Tex. Pen.Code Ann. § 9.01 (Vernon Supp.2008) (The current version of the statute is cited as no amendments to this definition have occurred since the commission of the offense.).