Barree v. State

621 S.W.2d 776, 1981 Tex. Crim. App. LEXIS 1146

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 1981
• Docket: 59224
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

The court sentenced Barree to 120 days in jail after a jury found him guilty of making a terroristic threat. The only question is whether the trial court erred in failing to charge the jury on self-defense. The appellant properly objected to the court’s charge to the jury.

The relevant law of self-defense should be set out first. V.T.C.A., Penal Code, Sec. 9.04 provides:

“The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the prosecution of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.”

V.T.C.A., Penal Code, Sec. 9.31(a) & (b) provides:

“(a) Except as provided in Subsection (b) of this section, 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.

“(b) The use of force against another is not justified:

“(1) in response to verbal provocation alone;

“(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c) of this section;

“(3) if the actor consented to the exact force used or attempted by the other; or

“(4) if the actor provoked the other’s use or attempted use of unlawful force, unless:

“(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

“(B) the other nevertheless continues or attempts to use unlawful force against the actor.”

Some facts were not disputed. On June 17, 1977, the appellant and two other men were in a pickup truck which was parked near a pile of garbage at the curb of a street. The complainant drove up in a garbage truck, and he wanted the pickup truck to be moved out of the way so that he could collect the garbage. An argument developed, at least one knife was drawn, and the appellant threatened to cut the complainant.

In Rodriquez v. State, 544 S.W.2d 382, 383 (Tex.Cr.App.1976), we stated:

“It is well established that if the issue [of self-defense] is raised by the evidence the accused is entitled to have it submitted to the jury. The issue before this Court is not the truth of appellant’s testimony; that is for the jury. The issue before this Court is whether, if the testimony is believed, a case of self-defense has been made. Appellant’s testimony supporting submission of the issue may be stated briefly.”

The appellant’s evidence came from himself and his companions in the truck. One companion had gone into a grocery store. When he came out he saw the men talking but he was too far away to hear. Then he saw the complainant, with a knife in his hand, walk away from the argument toward the telephone. He told the complainant to leave. He thought that the complainant might hurt the appellant because the appellant had no weapon.

The appellant testified that he and the complainant “cussed at each other,” that the complainant had a knife, and that he told the complainant that he would take the knife away and let some air out of his (the complainant’s) stomach. The appellant thought that there would be “some trouble” because of the knife.

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“We are of the opinion that appellant’s testimony raised the issue of self-defense and that the trial court erred in overruling appellant’s objection to the charge. We reiterate that the truth of appellant’s testimony is not at issue here and we express no opinion on who was telling the truth. The issue is whether the jury should have been instructed to decide those facts under the law on self-defense. We hold the trial court erred in refusing to charge the jury on the law of self-defense.”

Rodriquez v. State, 544 S.W.2d 382, 384 (Tex.Cr.App.1976).

The judgment is reversed and the cause is remanded for a new trial.

The complainant admitted drawing his knife, but he said that he did so in self-defense after me appellant drew a knife and threatened him.