April 27, 2018

Texas Court of Criminal Appeals

Mendez v. State

No. PD-0381-17                4/25/18


When the court sua sponte instructs the jury on a defensive issue, is the court required to apply the defensive issue to lesser-included offenses?


Yes. The court is required to include in a jury charge “the law applicable to the case.” The court is not required to instruct the jury on unrequested defensive issues, but if the court sua sponte instructs the jury on a defensive issue, that issue becomes part of the law applicable to the case. When the court instructs on a defensive issue on its own motion, it assumes the duty to administer the instruction correctly. Any error in the charge actually given is therefore subject to review under Almanza, rather than precluded from review under Posey. Here, the court erred when the jury instruction on self-defense was applied only to the charge of murder and not to the lower charge of aggravated assault. Read opinion.


The court granted review of this case to settle a split among the courts of appeals. In that respect, if a trial court charges the jury generally upon the law of self-defense, whether the defendant has requested a charge on self-defense or not, the court must apply that general charge to every lesser-included offense for which that justification would serve to “acquit” the defendant. This case should not be read for the proposition that this defendant was entitled to a charge on the lesser offense of aggravated assault. Indeed, it is probable that the defendant was not entitled to an instruction on the lesser offense of aggravated assault. See Jackson v. State, 992 S.W.2d 469 (Tex. Crim. App. 1999); Forest v. State, 989 S.W.2d 365 (Tex. Crim. App. 1999). Nevertheless, when a trial judge charges the jury on self-defense and charges the jury on a lesser offense to which self-defense could apply, the judge must apply the law of self-defense to that lesser offense, as well as the charged offense.

Boyett v. State

No. PD-0672-17                4/25/18


In an informal competency inquiry, must the evidence of incompetency suggest a “substantial possibility” that the defendant is incompetent to trigger a formal competency trial?


No. Making a determination of incompetency to stand trial is a two-step process. The first is an informal inquiry conducted by the trial court, and the second is a formal competency trial. A trial court must hold an informal hearing upon a “suggestion” from any credible source that the defendant may be incompetent. To move to the second step, the informal inquiry must show “some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.” The trial court may consider only evidence of incompetency and may not weigh evidence of competency against it. If the “some evidence” standard is met, the trial court must order a psychiatric competency evaluation and hold a formal competency trial. Here, the lower courts erroneously considered evidence of competency and focused on whether the evidence showed a “substantial possibility” of incompetency, which is a higher standard than required. Read opinion.


There are few decisions from the Court of Criminal Appeals that address competency under the newer statutory scheme. This decision should be helpful in outlining the basic framework of the beginning process for determining a defendant’s competency to stand trial. As should be clear from the opinion, the standards and burdens are very much in the defendant’s favor, so be careful in suggesting that a defendant is not entitled to a formal hearing on competency.

Texas Attorney General Opinion Request

RQ-0222-KP           4/18/18


Are recreational vehicle park guests licensees or tenants? Read request.


This question centers on how one might remove a recreational vehicle park guest. If such a guest is a licensee, no formal procedure is required. If the guest is considered a tenant, however, formal procedures are required.