Hughes v. State

719 S.W.2d 560, 71 A.L.R. 4th 919, 1986 Tex. Crim. App. LEXIS 818

• Court: Court of Criminal Appeals of Texas
• Decided: September 17, 1986
• Docket: 631-85
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Indicted for murder, appellant was convicted by a jury of the lesser offense of voluntary manslaughter and his punishment assessed at twenty years confinement and a fine of $10,000.00. On appeal the Tyler Court of Appeals reversed appellant’s conviction, holding that the trial court erred in charging, as part of its instruction to the jury on the law of defense of third parties, both in the abstract and in application to the facts of the case, that before appellant was entitled to use deadly force in defense of a third person it must be found that a reasonable person in his position would not have retreated under the circumstances. Hughes v. State, 721 S.W.2d 356 (Tex.App. — Tyler, 1985). We granted the State’s petition for discretionary review to examine the State’s contention that in so ruling the court of appeals appears to have misconstrued V.T.C.A. Penal Code, §§ 9.33 and 9.32. Tex.Cr.App. Rule 302(c)(4), now Tex.R.App.Pro. Rule 200(c)(4).

I.

The killing occurred on the shoulder of Farm to Market Road 138 in Nacogdoches County on January 28, 1982. Two passersby testified for the State that on that afternoon they saw a Thunderbird and a Chevrolet pickup parked along the roadside. In the driver’s seat of the pickup was the deceased, Rodney Johnson, and standing beside the driver’s door talking to him was Joan Goodwin. Appellant was observed leaning on the hood of the truck. Both witnesses momentarily looked away, and then, looking back, observed appellant withdrawing his upper body from the driver’s window. Smoke was seen coming from the cab of the pickup, and one of the witnesses saw a pistol in appellant’s hand. Appellant and Goodwin fled in the Thunderbird. When the witnesses reached Johnson’s pickup, they found him on the floorboard, shot to death. Also found on the front seat was a longbarrel .22 pistol, loaded but unfired.

Goodwin took the stand on behalf of appellant. She testified that Johnson had long been her friend, but that they had never been romantically involved. Nevertheless Johnson was upset that Goodwin was “seeing” appellant and asserted to her on one occasion, “If I have to kill you to get to him I will do that.”

Other defensive testimony showed that appellant and Goodwin had been to a party at the home of Mary Hodge on an evening earlier in January. When Johnson arrived at the party appellant rose to shake his hand, but Johnson cursed him and struck at him, precipitating a scuffle. Appellant drew a pistol but did not actually point it at Johnson, merely stating that this time he had the gun, and thus the upper hand, or words to that effect. Death threats were exchanged, but the altercation ended when Hodge ordered Johnson out of the house.

Defense witnesses testified that on the day of the killing Hodge was driving Goodwin and appellant to her house when Johnson passed them in his pickup. When Johnson turned around and began to follow them, Hodge pulled over to the side of the road. Johnson pulled up about two car lengths behind, and Goodwin and appellant got out of the Thunderbird to talk to him, while Hodge stayed in the car. It was approximately 3:00 p.m., and Goodwin and appellant had been drinking throughout the day.

According to Goodwin, the following transpired:

Q Did anyone else get out after you got out?

A John. He was behind me and I walked up there.

Q You walked up where, ma’am?

A To Rodney’s pickup.

Q Okay.

A And John was right behind me. And Rodney—

Q What happened then?

A Rodney said, “I don’t have anything to say to you motherfucker I just want to talk to Joan.” Okay—

Q What at that point did John do if anything?

A He turned around and went back to the front of the pickup and just leaned up against the front of the pickup.

Q Okay. What happened then?

A I said, “Rodney, I don’t understand why you’re acting like this.” I said, “If you’re going to be like this we can’t even be friends”, [sic] And he grabbed me, Rodney grabbed me. And when he did I just — I pulled back from him and you know, just pulled my arms back from when he grabbed me and I said, “hey, what are you doing”, [sic] And I looked back up in there, you know, and by the time I looked back up in there he’s got a gun in his hand and I said, “he’s got a gun”, [sic] And that’s when John turned around and shot him.

Q Did Rodney say anything prior to reaching for the gun?

A He said, “I told you if I had to kill you to get to him I would do it.”

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Q One last question, ma’am. Did Rodney Johnson threaten to kill you and John Hughes just before John Hughes shot him?

A Yes.

The trial court charged the jury on the law of selfdefense and the law of defense of a third party. As to defense of a third party the court's instructions read:

A person is justified in using deadly force against another when and to the degree he reasonably believes such force is necessary to protect a third person if, under the circumstances as he reasonably believes them to be, he believes such force and degree of force would be immediately necessary to protect himself against the unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect, if a reasonable person in his situation would not have retreated, and he reasonably believes that his intervention is immediately necessary to protect the third person.

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Therefore, even if you believe from the evidence beyond a reasonable doubt that the Defendant, John Madison Hughes, shot Rodney Lamar Johnson, as alleged, but you further believe, or if you have a reasonable doubt thereof, that, at the time he did so, the Defendant reasonably believed Rodney Lamar Johnson was threatening Joan Goodwin with unlawful deadly force and the Defendant reasonably believed the use of deadly force and the degree of deadly force used against Rodney Lamar Johnson would be immediately necessary to protect Joan Goodwin against such unlawful deadly force that he reasonably believed to be threatening Joan Goodwin, and that a reasonable person in the Defendant’s situation would not have retreated, and that the Defendant reasonably believed that his intervention was immediately necessary to protect Joan Goodwin, you will find the Defendant not guilty.

However, if you believe from the evidence beyond a reasonable doubt that, at the time and place in question, the Defendant did not reasonably believe Rodney Lamar Johnson was threatening Joan Goodwin with unlawful deadly force, or that the Defendant did not reasonably believe the use of deadly force and the degree of deadly force used against Rodney Lamar Johnson would have been immediately necessary to protect Joan Goodwin against such unlawful deadly force that he reasonably believed to be threatening Joan Goodwin, or that a reasonable person in the Defendant’s situation would have retreated, or that the Defendant did not reasonably believe that his intervention was immediately necessary to protect Joan Goodwin, you will find against the Defendant on this plea of justification.¹

Relying on Crawford v. State, 629 S.W.2d 165 (Tex.App. — Waco 1982, no pet.), the court of appeals held that §§ 9.33 and 9.32, supra, do not create a duty to retreat before an accused may use deadly force in defense of a third party, and sustained appellant’s ground of error attacking the foregoing charge.

II.

The requirement that an accused have made a reasonable retreat before resorting to the use of deadly force in defense of himself, though found in the common law of England, was not recognized in the statutes and decisional law of Texas prior to enactment of the 1974 Penal Code. Cooper v. State, 49 Tex.Cr.R. 28, 89 S.W. 1068 (1905); Article 1225, V.A.P.C. (1925). See Stemlight v. State, 540 S.W.2d 704 (Tex.Cr.App.1976); Practice Commentary, V.T. C.A. Penal Code, § 9.32. Now, however, that requirement is expressly provided in § 9.32, supra, which reads:

A person is justified in using deadly force against another:

(1)if he would be justified in using force against the other under Section 9.31 of this code;

(2) if a reasonable person in the actor’s situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other’s use or attempted use of unlawful deadly force ...

The State here argues, as it did in the court of appeals, that V.T.C.A. Penal Code, § 9.33(1) incorporates the necessity to retreat if reasonable into the law of defense of third parties by virtue of its reference back to § 9.32(2), supra. Section 9.33, supra, reads:

A person is justified in using force or deadly force against another to protect a third person if:

(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 of this code in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and

(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

The court of appeals reasoned that to construe § 9.33, supra, to require the accused to retreat if reasonable before coming to the aid of a third person whose safety he reasonably believes his intervention is immediately necessary to protect would countermand the obvious legislative intent in enacting the justification in the first place. The State Prosecuting Attorney now asserts that while the court of appeals may have correctly perceived the legislative intent, nevertheless the plain wording of § 9.33, supra, in its reference back to § 9.32, “requires retreat before defending another.” It is suggested that we uphold the instruction given in the instant case, and leave it to the Legislature to revise the provision to reflect its true purpose.

In our view, however, the legislative intent as perceived by the court of appeals is reflected unambiguously in the plain wording of § 9.33, supra.

III.

Because under § 9.33(2), supra, an accused must reasonably believe that his intervention is “immediately necessary to protect the third person,” it would be paradoxical, to say the least, to suggest that the Legislature intended that he first be required to retreat. Clearly what the legislature did intend was to justify use of deadly force to protect a third person in any situation in which the third person would apparently be justified in iising deadly force to protect himself. By positing in § 9.33(1) that “the actor would be justified under Section ... 9.32 of this code” in using deadly force to protect himself against that force “he reasonably believes to be threatening the third person he seeks to protect,” the Legislature was merely placing the accused, who is the “actor” under § 9.33, supra, in the shoes of the third person. So long as the accused reasonably believes that the third person would be justified in using deadly force to protect himself, the accused may step in and exercise deadly force on behalf of that person. Part of what goes into the assessment of whether the third person had a right to exercise deadly force in defense of himself is whether or not a reasonable person in his position would have retreated instead. Thus, in deciding intervention is necessary, the accused must reasonably believe that “a reasonable person in [the third person’s] situation would not have retreated.”

The jury would correctly be instructed, then, that to find the conduct of the accused to have been justified as defense of a third person, inter alia, it must believe, or have a reasonable doubt whether the accused, from his standpoint, reasonably believed that a reasonable person in the third person’s situation would not have retreated.²

Not only does this construction follow from the plain wording of § 9.33(1), supra, it also comports with principles of statutory interpretation enunciated in the Code Construction Act. Tex.Gov.Code Ann., § 311.023 provides:

In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(1) object sought to be obtained;

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(4) common law or former statutory provisions, including laws on the same or similar subjects;

(5) consequences of a particular construction ...

Quite obviously, the objective of the Legislature in enacting § 9.33, supra, was to justify the conduct of one who goes to the aid of a fellow he reasonably believes to be under attack with unlawful deadly force. As observed by the court of appeals, the consequences of adopting the State’s suggested construction of § 9.33, supra, would be to “annul” that obvious purpose by requiring the accused to abstain from his Samaritan impulse so long as he can reasonably do so without injury to himself. In fact, if the State’s were a correct reading of § 9.33’s reference back to § 9.32, then it would also follow that one who acts in defense of a third person would himself have to be threatened with unlawful deadly force, via § 9.32(3)(A), supra, before he could in turn use deadly force in defense of the third person also so threatened! Such a construction would indeed nullify the legislative objective behind enactment of § 9.33, supra.³

Considering prior law, it has long been held that in the context of charging on the defense of third parties, the law of retreat, if applicable at all, would only apply to the third party. See Mathews v. State, 114 Tex.Cr.R. 526, 26 S.W.2d 269, 270 (1930); White v. State, 88 Tex.Cr.R. 159, 225 S.W. 511, 513 (1920); Dobbs v. State, 51 Tex.Cr.R. 113, 100 S.W. 946, 949 (1907). As noted ante, at the time these cases were decided the law provided that an accused did not have to retreat before acting in selfdefense. Nevertheless these cases support the proposition that whatever the law may be regarding retreat, i.e., whether one acting in his own defense must retreat or not, that law does not apply to an accused who acted in defense of a third person. See Crawford v. State, supra, at 168. Consistent with this proposition, our present construction of § 9.33(1), supra, “applies” the law of retreat only to the third person, and then only in the sense that it requires the accused to make the reasonable assessment, from his standpoint, that a reasonable person in the third person’s shoes would not have retreated, before he may act with deadly force in that person’s behalf.

The trial court erred in instructing the jury appellant could not be acquitted “if a reasonable person in his situation would not have retreated.”

The judgment of the court of appeals is affirmed.

1 . All emphasis supplied unless otherwise indicated.

2 . Since the jury must assess the circumstances from the standpoint of the accused, so long as it is found that it reasonably appeared to him that a reasonable person in the third person’s position would not have retreated before using deadly force, he would be entitled to an acquittal, even if the jury also believed, incidentally, that in reality a reasonable person in the third person’s position would have retreated before resorting to deadly force:

3 . The dissent would construe § 9.33(1), supra to require that "where the circumstances raise the possibility of use of deadly force in defense of a third party, and if the actor may retreat and still preserve the safety of the third party he or she seeks to protect, then the actor must retreat and not exercise deadly force against the attacker." This is really no more than to say that if the actor’s intervention is not "immediately necessary" to avert the attacker’s use of deadly force, the actor may not himself resort to deadly force in defense of the third person. Such a construction, however, would render § 9.33(2), supra, a mere redundancy. Tex.Gov.Code Ann., § 311.-021 provides that ”[i]n enacting a statute, it is presumed that ... the entire statute is intended to be effective.” Unlike that posited by the dissent, our construction of § 9.33, supra, would give effect both to § 9.33(l)’s reference back to § 9.32(2), viz,, that the actor reasonably believe the third party could not reasonably retreat; and to § 9.33(2), supra, requiring that his intervention appear immediately necessary to protection of the third party.