Semaire v. State

612 S.W.2d 528, 1980 Tex. Crim. App. LEXIS 1416

• Court: Court of Criminal Appeals of Texas
• Decided: October 22, 1980
• Docket: 62635
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This murder case presents the question of whether a suspect is justified in defending himself against the use of force which he reasonably believes is unlawful, but which actually is lawful. If the answer is Yes, which we hold that it is, then this appellant was entitled to have a jury decide whether his belief was reasonable.

The appellant has been found guilty of murdering his wife and has been assessed a punishment of eight years’ confinement. The trial court refused the appellant’s requested instruction on the law of self-defense. The State argues that there was no evidence which raised the justification of self-defense because, “any force perceived by Appellant was lawful under Section 9.32 of the Texas Penal Code.” But it is not conclusive that the deceased’s use of force, which the appellant “perceived,” was in fact lawful; the question is whether the appellant reasonably believed it was unlawful.

V.T.C.A., Penal Code, Section 9.31(a) reads:

“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 of attempted use of unlawful force.”

In turn, V.T.C.A., Penal Code, Section 9.32 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 term “reasonably believes” encompasses the traditional holding that a suspect is justified in defending against danger as he reasonably apprehends it. Valentine v. State, 587 S.W.2d 399 (Tex.Cr. App.1979). This includes reasonable belief that the other’s use of force was unlawful, as well as reasonable belief that defensive force is immediately necessary, that the other’s force is deadly, etc.

We are bolstered in our holding by the drafters of the Model Penal Code, Section 3.04 of which is similar to our code in that it creates a justification “when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” The Comment to Section 3.04 in Tentative Draft No. 8 at 18 (1956) was that, “The draft does not require that the force against which the actor defends himself be unlawful; it is enough that he believes it to be so.” Accord, W. La Fave & A. Scott, Handbook on Criminal Law 392 (1972). Cf. Restatement (Second) of Torts, Section 63, Comment h (1965) (civil rule).

Therefore the question is not whether there was any evidence that the deceased’s attempted use of force was unlawful; the appellant was entitled to an instruction on the law of self-defense if there was any evidence that he reasonably believed that the deceased’s attempted use of force was unlawful. It must be remembered that, as we stated in Warren v. State, 565 S.W.2d 931, 933-934 (Tex.Cr.App.1978) (citations omitted):

“A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. The defendant’s testimony alone may be sufficient to raise a defensive theory requiring a charge.”

According to the appellant, his marriage of less than four years had been troubled; the spouses seemed to have been separated from each other at least as much as they lived together. During previous periods of separation, they had exchanged items of property (as when one might have been left with an item of property that belonged to the other). During the last separation the appellant had made several appointments to meet his wife, but she had failed to appear. On the day in question, at 2:00 a. m., the wife called the appellant; she told him that she didn’t want to have anything to do with him anymore, that he should bring her jacket to exchange for some of his jewelry which she had, and that if he did not bring the jacket “[h]e and her man friend was going to bump heads.” In the past the appellant had been stabbed by one of his wife’s “man friends,” and another had threatened him with a shotgun.

Around 9:00 a. m. the appellant took the jacket to his wife’s sister’s apartment, where his wife was staying. He asked his wife to talk with him and “settle,” but she refused to open the door. She told the appellant to leave the jacket with her sister in the manager’s office. She said that she would not give him his jewelry, and that if he didn’t get away from the door in the next few minutes she would start shooting through the door. Without stopping to think, he “busted the door open” and stumbled into the apartment. The appellant testified that he intended “to try to stop her from hurting” him; at another point, he testified that he did not know why he entered. At any rate, he had no intention of harming his wife or of using his gun. Stumbling, he “glanced” at his wife and saw her raise her hands. He thought she was going to shoot him. Still stumbling, he reached to his side, pulled out his revolver, and started shooting without aiming. Two bullets struck his wife, who ran to the bedroom. The appellant tried to calm his wife. Then he left to get help. He flagged down a police car.

We cannot say, as the State would have us, that any attempted use of force by the wife would have been lawful as a matter of law. That would depend on her reasonable beliefs about the necessity to defend herself or her property, just as the appellant’s claim to self-defense depends on his reasonable beliefs. Those questions were for the jury, and the trial court erred in refusing to instruct the jury on the law of self-defense.

We cannot accept the State’s other argument that the evidence showed conclusively that the appellant provoked the wife’s attempted use of force. “The use of force against another is not justified ... if the actor provoked the other’s use or attempted use of unlawful force .. .. ” V.T. C.A., Penal Code, Section 9.31(b)(4) (in pertinent part). “One who provokes a difficulty, intending then to injure his opponent when the latter responds to the provocation, is not justified in using force against his opponent when the latter responds. This is the common law, long recognized in Texas, and it is codified in Subsection (b)(4) .. . . ” State Bar of Texas, Texas Penal Code: A Proposed Revision 89 (Final Draft 1970) (identical to S. Searcy & R. Patterson, “Practice Commentary,” 1 Vernon’s Texas Codes Annotated: Penal Code 266 (1974)) (emphasis supplied). Accord, Texas Annotated Penal Statutes with Forms 326 (Branch’s 3d ed. 1974). The former law, see generally 29 Tex.Jur.2d — Homicide, Section 43 (1961), was not changed by the new statute. Inasmuch as the appellant expressly denied any intent to harm his wife when he broke into the apartment, the evidence created only a question for the jury on provocation.

“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.