Texas Court of Criminal Appeals

Rogers v. State

No. 0242-19                10/26/22

Issue:

Was the defendant entitled to a jury charge on self-defense based on his own testimony that he believed his use of force was necessary to protect himself?

Holding:

Yes. The defendant’s testimony was sufficient to raise the issue and entitle him to a charge on self-defense. The Court rejected the State’s argument that if one party is using legal force under Penal Code §§9.31 and 9.32, the other party cannot be. “Thus, per the State, if Complainant’s use of force was lawful, then Appellant’s response is rendered unlawful because his use of force can never be justified. We do not believe Sections 9.31 nor 9.32 can be used to make such reflexive renderings in the way the State proposes. Section 9.31(a) only applies to situations concerning the actor where both predicate conditions are met: (1) the actor reasonably believes use of force is immediately necessary; and (2) the actor reasonably believes the other’s person’s use or attempted use of force is unlawful.” Read opinion.

Concurrence (Yeary, J.):

The concurrence disagreed with the majority’s focus on the defendant’s “presentation of relevant and otherwise—at least potentially—admissible evidence. I understand that the Court may be bothered by the fact that the trial court seems to have prevented Appellant from presenting a complete defense. But that is not the issue in this case.” Read concurrence.

Concurrence (Slaughter, J.):

The concurrence pointed out that “the trial court’s erroneous exclusion of Appellant’s defensive evidence seriously undermined Appellant’s ability to present a complete defense and, had it been raised, this would have constituted an additional basis for reversal.” Read concurrence.

Commentary:

This case has been back and forth on appeal for quite some time, and one of the biggest problems with the case—dealt with indirectly by the court in a prior opinion—was the fact that the trial judge excluded defense evidence the victim’s spouse consented to the defendant entering the victim’s residence and other evidence supporting the defendant’s self-defense claim. That error (which was never directly raised) is re-emphasized in this opinion. Judge Yeary calls the court to task for utilizing that evidence in support of the defendant’s claim that he should have been given an instruction on self-defense.

Regardless, this decision is certainly one of the more significant decisions from the court on the law of self-defense. In determining whether a defendant is entitled to a charge on self-defense, the court once again focuses on the defendant’s reasonable belief, additionally suggesting that it does not matter that the victim was in fact acting reasonably or lawfully. What matters is that the defendant reasonably believed that the victim was acting unlawfully. Time will tell whether this decision will squelch attempts by prosecutors to argue that the victim was lawfully acting in self-defense and, therefore, the defendant could not have been. But it seems clear that—in the jury charge—language regarding self-defense cannot be applied to the victim’s conduct. That may be particularly difficult to swallow in light of the fact that the defendant was hiding in the victim’s closet, knowing that the victim had not given him consent to be there, and that defendant shot the victim with one of his own guns left in that closet.

There is another aspect to this decision that is of some importance. In the past, the court has held that a defendant can act in self-defense, even in committing a non-assaultive offense. The court did not specifically hold that burglary could be one of those offenses, but instead held that this defendant could have acted in self-defense as to the predicate (or companion) offense of aggravated assault.

Texas Attorney General Opinions

No. KP-0421                10/25/22

Issue:

May a former constitutional county judge who does not meet the definition of a retired judge under Government Code §74.041(6) be appointed as a visiting judge under Government Code §26.023?

Conclusion:

A court would likely define the term “retired judge” for purposes of Government Code §26.023(a) by reference to its definition in Government Code §74.041(6). Under that construction, a former constitutional county judge who does not otherwise satisfy §74.041(6) is not eligible to be appointed as a visiting judge under §26.023(a). Read opinion.