By Jason Bennyhoff
Assistant District Attorney in Fort Bend County
We’ve all been there: a defendant has some half-baked self-defense theory, which everyone in the room knows is absurd, yet the defense lawyer is asking for a jury charge on it. Our first instinct is to fight the inclusion of the instruction; after all, we all know it’s nonsense. But wait: Defendants are often entitled to defensive jury instructions regardless of how far-fetched the “facts” supporting the instruction or how dubious the reliability of the sources those “facts” came from.
What follows is a brief primer on the law of self-defense and a few of the many and varied ways in which a prosecutor’s inclination to argue against the inclusion of a self-defense instruction in the jury charge is, although understandable, usually unwise.
Self-defense issues in the Penal Code
The definition of self-defense is simple enough on its face: “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.” While self-defense seems simple enough in the abstract, one need look no further than the Penal Code section regarding it to see that it is not nearly so simple in reality.
Self-defense is not an available justification in numerous circumstances, including but not limited to:
1) in response to verbal provocation alone;
2) to resist an arrest or search that the actor knows is being conducted by a peace officer, regardless of the legality of that arrest or search;
3) where the actor consented to the other’s use of force;
4) where the actor provoked the difficulty; and
5) where the actor sought an explanation from another while the actor was illegally carrying a weapon.
Where the actor is justified in threatening or using deadly force against another, he may not recklessly injure or kill an innocent third person. Therefore, a defendant may not receive a self-defense instruction as to the reckless injury or death of the innocent third party, even where he has a legitimate self-defense issue against another.
Self-defense issues become more complex depending on whom or what is to be protected by the use of force, and the amount of force to be used. Deadly force can be used where the actor would be justified in using force under §9.31 of the Texas Penal Code and when and to the degree the actor reasonably believes the deadly force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful deadly force, or to prevent the other’s imminent commission of certain enumerated violent felonies.
Force or deadly force can likewise be used to protect a third person where the use of force or deadly force would be justified under §§9.31 or 9.32 of the Penal Code and the use of force or deadly force is immediately necessary to protect the third person.
Force or deadly force can also be used to protect property. The possessor of property may use force to protect that property when and to the degree he reasonably believes the force is immediately necessary to prevent or terminate another’s trespass on land or unlawful interference with property. Deadly force can likewise be used to protect one’s own or another’s property to prevent the commission of certain offenses or to prevent flight therefrom.
The defense bears the burden of adducing some evidence on which a jury could base a finding of self-defense. The State bears the burden of persuading the jury that the defendant’s actions were not in self-defense. Self-defense is a fact issue for the jury, and a jury’s finding of guilt is an implicit rejection of the defendant’s self-defense theory.
Entitlement to a jury instruction
Caution against contesting self-defense instruction. When considering whether to put a particular instruction in the jury charge, be it on self-defense or another defensive issue, prosecutors should keep in mind the potential appellate implications of refusing to include a requested instruction, or of not including a necessary instruction even where it was not requested. This is because under the governing law, even a failure by defense counsel to request a necessary instruction does not waive the consideration of the lack of that instruction on appeal. Therefore, prosecutors should not only be circumspect about contesting including defensive instructions in the jury charge, but they should also proactively anticipate such issues and request (or at least suggest) the inclusion of such instructions in the jury charge themselves.
The source of the evidence is irrelevant. While it is true that the defense bears the burden of production, this does not mean that the defendant must testify, nor in fact produce any evidence at all to be entitled to a self-defense instruction—the evidence submitted by the prosecution may necessitate the inclusion of a self-defense instruction in the charge. Therefore, while it may be tempting to argue that the defense has not produced any evidence to support the inclusion of a self-defense instruction in the jury charge, this argument is a loser if the prosecution has presented that evidence because the defendant is entitled to rely on any evidence on the record, no matter its source, which supports a defense.
Confession and avoidance. Self-defense is a so-called “confession and avoidance” defense, meaning that the defendant must admit his conduct, then point to evidence on which a jury could base a finding that his actions were justified because he acted in self-defense. Given this general rule, a prosecutor’s first instinct when faced with a scenario where a defendant does not unequivocally concede his guilt to all of the elements of the offense may well be to argue against the inclusion of a self-defense instruction (or indeed an instruction on any other confession-and-avoidance defense). That instinct could be bolstered by a search of the caselaw on this issue, which over the years has presented some authority on which a prosecutor arguing against the inclusion of such an instruction could hang his hat.
However, prosecutors must always keep in mind the general rule that the defendant is entitled to a jury instruction on any defensive theory raised by the evidence. This general rule is further bolstered, and the prosecutor’s instinct to argue against the inclusion of a self-defense instruction undermined, by authority stating that the defendant can be entitled to a self-defense instruction even where there is evidence that he made contradictory statements about his having committed the act or does not testify and thus does not actually “confess” or “admit” the conduct himself.
The prosecutor researching this issue could find himself confused by these apparently contradictory authorities. Indeed, the Texas Court of Criminal Appeals has characterized its own application of the confession and avoidance doctrine as “somewhat inconsistent.” The Court of Criminal Appeals recently clarified this apparent inconsistency in the application of the confession and avoidance doctrine by holding (in Rodriguez v. State) that “all the facts surrounding the charged conduct may be relevant in deciding whether a defensive issue has been raised. … The evidence need not unequivocally show that the defendant engaged in the conduct. … Credibility is for the jury to decide; the court’s only role is to determine if there is some evidence—even if weak, inconsistent, or contradictory—that a rational jury could find supports the defense. … Consequently, in a case of conflicting evidence and competing inferences, the instruction should be given.”
In light of the Texas Court of Criminal Appeals’ recent pronouncement on this issue, prosecutors are best served to include a self-defense instruction (or other confession and avoidance defense instruction) in the jury charge if there is any evidence from any source, no matter how weak or liable to impeachment, which could support such a defensive theory, and even where one might be inclined to argue about whether the evidence reflects a true “confession” to all of the elements of the offense.
Apparent danger. A prosecutor might be inclined to argue against the inclusion of a self-defense instruction where the victim was not using deadly force against the defendant. However, this is another path fraught with danger because the victim need not actually be using deadly force against a defendant for the defendant to use deadly force in self-defense; the Texas Court of Criminal Appeals has held that a “person has the right to defend himself from ‘apparent danger’ to the same extent he would if the danger were real.”
Self-defense against a non-aggressor amongst multiple assailants. Where the prosecution is for injuring or killing a person who was not an aggressor toward the defendant, it might well be a prosecutor’s natural instinct to think that a self-defense charge would not be available. However, the Texas Court of Criminal Appeals has held that there is a nuance to this situation: “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 [self-defense] 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.”
Hence, even if the defense is conceding that the victim was not an aggressor, if there is any evidence that the victim seemed to be encouraging, aiding, or advising an aggressor, the defendant is entitled to a self-defense charge as to multiple assailants. A close reading of the Texas Court of Criminal Appeals’ holding in Jordan is highly recommended should any prosecutor find himself presented with such a scenario.
Inconsistent defensive theories. Prosecutors might, after swallowing the bitter pill of accepting a self-defense instruction they feel is unjust, be inclined to contest another instruction on an alternative and indeed contradictory defensive theory. The prosecutor should resist that temptation.
A defendant is entitled to a jury instruction on every defensive issue raised by the evidence, even if the defenses are inconsistent or contradictory, so prosecutors should be slow to object to any such instruction.
While the inclusion of self-defense jury instructions the prosecutor believes to be nonsensical can doubtless be frustrating, prosecutors should remember that ultimately, the inclusion of these instructions is designed not only to protect defendants’ rights and prevent the wrongful convictions of innocents, but also to ensure that it is juries rather than judges or prosecutors who are making the ultimate factual determinations. Our duty is to see that justice is done, and we rely on juries to be the conscience of the community. Placing the determination of whether the facts support a defensive issue with those juries merely places the decision-making authority where it rightfully lies.
Further, the inclusion of these instructions can be a land of opportunity for prosecutors; oftentimes, if a defendant secures multiple defensive instructions, these will in fact be inconsistent or contradictory theories in some respect. The opportunity to point out these inconsistencies is fertile ground for closing argument, and that is our real time to shine, not at the charge conference.
 Tex. Pen. Code §9.31(a).
 Tex. Pen. Code §9.31(b).
 Tex. Pen. Code §9.05.
 Tex. Pen. Code §9.32(a).
 Tex. Pen. Code §9.33.
 Tex. Pen. Code §§9.41–9.43.
 Tex. Pen. Code §9.41.
 Tex. Pen. Code §§9.42, 9.43.
 Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).
 Id. at 913-14.
 See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (addressing jury charge error under the Almanza standard—that jury charge error will still be evaluated for “egregious harm” even where the error was not objected to at trial).
 Smith v. State, 676 S.W.2d 584, 586-87 (Tex. Crim. App. 1984).
 Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020).
 See, e.g., Ex parte Nailor, 149 S.W.3d 125, 132-34 (Tex. Crim. App. 2004) (on postconviction writ of habeas corpus, holding that trial counsel was not ineffective for not seeking a self-defense instruction where the defendant would not have been entitled to such an instruction because the defendant’s position was that he accidentally caused the victim’s injuries and therefore lacked the requisite mens rea; thus, his position was one of negating the elements of the offense rather than confessing the elements and avoiding the conviction on the ground he acted in self-defense).
 Jordan, 593 S.W.3d at 343, citing Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996).
 Rodriguez v. State, 629 S.W3d 229, 237 (Tex. Crim. App. 2021) (holding that trial court erred in not submitting jury instructions on necessity, self-defense, and defense of a third person where defendant testified that he pulled out a gun to break up a fight but did not intentionally pull the trigger because evidence supporting competing inferences should have been submitted to the jury to decide); see also Juarez v. State, 308 S.W.3d 398, 403-05 (Tex. Crim. App. 2010) (examining the confession and avoidance doctrine in various applications, including the necessity defense and self-defense contexts, and ultimately holding that the trial court erred by refusing to give a necessity instruction where the defendant did not admit to the culpable mental state but did admit to the act because there was evidence from which the jury could have inferred the culpable mental state); Roark v. State, No. 01-19-00428-CR, 2020 WL 5823152 at *3-7 (Tex. App.—Houston [1st Dist.] Oct. 1, 2020, no pet.) (mem. op., not designated for publication) (examining Court of Criminal Appeals’s holdings on confession and avoidance issue and holding that there was evidence in the record, though the defendant did not testify, from which the jury could have found all of the elements of the offense and the defensive theory to be true and that the trial court erred by not giving a necessity instruction).
 Juarez, 308 S.W.3d at 403.
 Rodriguez, 629 S.W.3d at 231-33.
 Hamel v. State, 916 S.W.2d at 493.
 Jordan, 593 S.W.3d at 343.
 Booth v. State, 679 S.W.2d 498, 501 (Tex. Crim. App. 1984).