Texas-Book-Gun Law Armed And Educated - Flipbook - Page 176
may also say the man raised a weapon in his hand and was moving
aggressively toward him, and that the assailant outweighed Homer
by 75 pounds and was about a foot taller. Homer will absolutely
testify he felt he was being robbed. If he puts forth some evidence
in court that he was the victim of an attempted aggravated robbery,
the jury will get to decide if Homer is credible and if his belief was
reasonable, and the law then requires the prosecution to prove beyond
a reasonable doubt that he did not act in self-defense. See Saxton v.
State, 804 S.W.2d 910 (Tex. Crim. App. 1991). However, if Homer
fails to put forth some evidence that he acted in self-defense, he will
not be entitled to a self-defense jury instruction concerning Sections
9.31 and 9.32, and the jury will not get to decide the issue.
D. What is “some evidence”?
So, how much evidence does a person have to offer in a trial to
constitute “some evidence” in order to be entitled to a jury charge
regarding self-defense? Multiple Texas appeals courts have stated that
“if [any] evidence raises the issue of self-defense, the defendant is
entitled to have it submitted to the jury, whether that evidence is weak
or strong, unimpeached or contradicted, and regardless of what the
trial court may or may not think about the credibility of the defense.”
Guilbeau v. State, 193 S.W.3d 156, 159 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d). Interestingly enough, the Court of Criminal
Appeals recently held that “[I]n the case of conflicting evidence and
competing inferences, the [defensive] instruction should be given.”
Rodriguez v. State, ___ S.W.3d ___ (Tex. Crim. App. 2021) (No. PD1130-19). The Rodriguez Court found that the admission to otherwise
criminal conduct (in this case) “kill[ing] the victim in response to
the victim’s aggression,” should create an inference necessitating
a defensive instruction. This applies even when the actor expressly
denies their intent to kill but nonetheless, their defensive conduct
When Can I Legally Use My Gun: Part II | 165
