Applying the law of Wild West shootouts to today

By Clinton Morgan
Assistant District Attorney in Harris County

By its terms, the Penal Code defines self-defense as the use of force against an individual you reasonably believe is about to inflict unlawful force on you. Through the “multiple assailants” doctrine, though, the Court of Criminal Appeals allows self-defense not just against the prospective attacker, but also against those you think are encouraging him, even if you do not believe those people are attacking you. The Court’s latest offering on this subject, Jordan v. State,[1] continues this confusing doctrine, but, unlike prior cases, offers actual hints at how to apply it.

            The multiple-assailants doctrine in Texas dates back to at least 1884.[2] Under this doctrine, if you’re being attacked by multiple people at once, you’re free to use self-defense against any of them, even if that person hasn’t attacked you yet. It started off as an application of the law of parties—an attack by one was an attack by all in the party, authorizing self-defense against everyone in the party.

            It is illustrated by one of my favorite cases, Black v. State,[3] which stemmed from a West Texas shootout in 1912. Four men went into town, aiming to kill Black and his friend Hamilton. The attackers took positions surrounding Black and Hamilton. After “the firing became general,” three of the attackers got shot. The Court of Criminal Appeals held that because the four were attacking as a group, Black and Hamilton could shoot any of them, even without evidence the particular target had opened fire.

            This doctrine might sound antiquated, but the Court of Criminal Appeals recently affirmed its continued application to crowd shooting situations in Jordan.

Showdown at the Silver Star

Jordan was leaving town, but decided, imprudently, to go with his friend Bryan and have one last dinner at the Silver Star, a restaurant where his ex-girlfriend, Varley, worked. When Jordan and Bryan arrived, Varley was there with four male friends: Royal, Crumpton, Prichard, and Stevenson.

            After the predictable drama ensued inside the restaurant, Jordan and Bryan decided to leave. When they did, Varley and her friends were outside. There were words, and then Royal knocked Bryan out with a single punch.

            Jordan testified that after he heard Royal punch Bryan, he ran to his car. Royal and Stevenson chased him, and Royal caught him by grabbing his face from behind. Jordan pulled a pistol from his pocket and fired three times without aiming. One round hit Royal, one hit Varley, and one hit a parked car.

            Jordan was charged with aggravated assault for shooting Royal and with felony deadly conduct for shooting in the direction of Varley and Crumpton. For both offenses, the jury was instructed to acquit if Jordan acted in self-defense based on a reasonable fear of deadly force from Royal. Based on the multiple-assailants doctrine, though, the defense requested the jury instructions authorize self-defense if Jordan feared deadly force from Royal “or others with him.” This request was denied. The jury hung on the aggravated assault charge but convicted on deadly conduct.

            On appeal from the conviction, Jordan raised four complaints about the self-defense instruction, including the lack of the phrase “or others with him.” The Sixth Court rejected all of these complaints by holding that Jordan was not entitled to a self-defense instruction at all.[4] This was so, the Sixth Court held, because there was no evidence Jordan believed that Varley and Crumpton were attacking him. Because Jordan was not entitled to a self-defense instruction, any errors in that instruction were harmless.[5]

Jordan versus the “mob”

The Court of Criminal Appeals granted review. In an opinion written by Judge Keel and joined by five other judges, that Court reversed. Whereas the Sixth Court had seen the case as a question of whether Jordan’s testimony justified the use of force against Varley and Crumpton, the Court of Criminal Appeals saw it as a question of whether Jordan was justified in shooting any member of the “mob.”

            The Court began by describing the law of self-defense and multiple assailants. It described the latter: “When the evidence viewed from the defendant’s standpoint shows an attack or threatened attack by more than one assailant, the defendant is entitled to a multiple-assailants instruction. The issue may be raised even as to those who are not themselves aggressors as long as they seem to be in any way encouraging, aiding, or advising the aggressor.” For this proposition, the Court cited several old cases, including the 1884 case that explained the “multiple assailants” doctrine as a function of the law of parties.

            The Court described Jordan’s testimony as being that he “fired because he felt he had no other choice.” The Court said this testimony would have allowed a jury to conclude he reasonably believed deadly force was necessary “to protect himself from the group’s” use of deadly force. Citing Black, the Court noted that it did not matter whether Varley and Crumpton had attacked Jordan yet; what mattered was whether Jordan “had a reasonable apprehension of actual or apparent danger from a group of assailants that included Crumpton and Varley.”

            The Court then addressed three arguments raised by the State Prosecuting Attorney (SPA). First, the SPA argued that Jordan had not sufficiently admitted to the offense to satisfy the confession-and-avoidance doctrine because he denied knowing he shot in the direction of Varley and Crumpton. In response to this argument, the Court pointed to Jordan’s trial testimony where he admitted to intentionally shooting the gun.[6]

            Second, the SPA argued the Penal Code’s plain language limits self-defense to the person actually using unlawful force: “A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.”[7]

            To rebut this argument, the Court made a grammatical point: The self-defense statute “encompasses ‘others’ because ‘another’ is defined by the Penal Code, and Penal Code definitions apply to grammatical variations of the defined term.”[8]

            The SPA’s third argument was that because the evidence showed Royal was the only one using force against Jordan, the jury instruction gave Jordan what he wanted: the right to defend against Varley and Crumpton because of Royal’s actions. The Court rejected this argument because the evidence showed Jordan “was facing a mob.” The Court does not define “mob,” but from these facts we can infer it includes a situation with five unfriendly people, two of whom are actively attacking the defendant.

            Finally, the Court addressed harm. Because this was jury-charge error and Jordan objected, reversal was appropriate if there was “some harm.” The Court reversed because it believed the instruction effectively foreclosed an acquittal: “Shooting at Varley and Crumpton would never be necessary to defend against Royal alone.”

Dissents

There were two dissenting opinions. Judge Keasler dissented, arguing Jordan was not entitled to a self-defense instruction because his testimony did not adequately confess the offense.[9] Under the “confession and avoidance” doctrine, a defendant must admit, or at least not contest, the elements of the offense to get a justification defense. Judge Keasler pointed out that felony deadly conduct required Jordan to knowingly fire in the direction of others, but Jordan testified he did not know he was firing at Varley and Crumpton.[10] Judge Keasler argued Jordan’s defense was not self-defense but rather “the time-honored defense of ‘You didn’t prove your case.’”

            Judge Yeary wrote a dissent, joined by Presiding Judge Keller.[11] Judge Yeary did not really criticize the Court’s ruling on the merits of the case[12] but instead wrote to argue that the Court should have remanded the case for the court of appeals to conduct a harm analysis rather than conducting a harm analysis on its own.

Takeaways

What should prosecutors take from this case? First, read Judge Keasler’s dissent. It shows that the Court lowered the burden to get a self-defense instruction. Self-defense requires admitting a certain level of intentionality to one’s acts. Jordan admitted intentionally firing the gun but denied knowingly firing it in the direction of anyone in particular. In a case where a defendant has generally admitted most of the charged conduct and is seeking a self-defense instruction, this case makes it riskier for the State to oppose the instruction.

            Second, the Court is standing by the multiple-assailants doctrine, regardless of whether it is based in the current Penal Code.[13] Fortunately, this case tells us what would qualify as a “multiple assailants instruction”: “[Jordan] was entitled to a self-defense instruction that referenced ‘Royal or others.’” Telling a jury the defendant had a right to defendant himself against the complainant “or others” is pretty vague. It was straightforward enough here, where there were only two groups of people—Jordan and Bryan versus the “mob.” But a lot of cases may not be so clear, and it may not be as obvious who is part of the “mob.”

            If you think the “or others” instruction will confuse a jury, ask for an instruction on the law of parties,[14] and ask that the charge limit self-defense to the defendant’s fear of unlawful force from the complainant or others whom the defendant believed were in a party with the complainant. The only possible justification for a multiple-assailants instruction under the current Penal Code is the law of parties.[15]

            It might still lead to absurd results: The law of parties inculpates a lot of people against whom it would be ridiculous to act in “self-defense.” And I can’t guarantee it won’t get you reversed: Multiple assailant cases are pretty vague as to what a proper instruction looks like. But that’s Texas self-defense law in 2020.

Endnotes

[1]  593 S.W.3d 340 (Tex. Crim. App. 2020).

[2]  See Cartwright v. State, 16 Tex. Ct. App. 473 (1884).

[3]  145 S.W. 944 (Tex. Crim. App. 1912).

[4]  Jordan v. State, 558 S.W.3d 173 (Tex. App.—Texarkana) rev’d, 559 S.W.3d 340 (Tex. Crim. App. 2020).

[5]  Id. at 180 n.4 (citing Hughes v. State, 897 S.W.2d 285, 301 (Tex. Crim. App. 1994)).

[6] The Court also noted the SPA’s argument was inconsistent with the State’s argument at trial, where the prosecutor claimed Jordan admitted to all the elements, but the Court does not ascribe any legal significance to this inconsistency. It would be very strange for the Court to hold that the State’s argument required the trial court to submit a self-defense instruction that was not supported by the evidence. Absent an explicit statement making such a holding, I think the Court’s holding here is that Jordan’s admission to firing the gun, notwithstanding his denial of firing at Varley and Crumpton, raised self-defense.

[7]  Tex. Penal Code §9.31(a).

[8]  I quote this response because I do not see how it rebuts the SPA’s point. No matter how you swap out the terms “another,” “other,” and “others,” Penal Code §9.31 always says the force is justified only against the person or persons from whom the actor fears unlawful force.

[9]  Jordan, 593 S.W.3d at 348 (Keasler, J., dissenting).

[10] Tex. Penal Code §22.05(b).

[11]  Jordan, 593 S.W.3d at 351 (Yeary, J., dissenting).

[12]  Judge Yeary described the posture of the case and said it was “understandable” for the Court to have addressed the multiple-assailants argument, and he “[did] not fault the Court for proceeding to address this issue.”

[13]  All the cases cited by the Court regarding multiple assailants either pre-date the current Penal Code or rely exclusively on cases that pre-date the current Penal Code.

[14] Tex. Penal Code §7.02.

[15]  See Jordan, 593 S.W.3d at 343 (citing Cartrwright, the 1884 case explaining multiple assailants as a function of the law of parties), 345 (citing then-Judge Keller’s concurrence in Dickey v. State, 22 S.W.3d 490 (Tex. Crim. App. 1999), which argued multiple assailants was a function of the law of parties).