## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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. P D

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J O S E M A N U E L M O R A L E S , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E F I F T H C O U R T O F A P P E A L S

D A L L A S C O U N T Y

K E L L E R , P
. J
. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h M E Y E R S , P R IC E , W O M A C K , K E A S L E R , H E R V E Y , C O C H R A N a n d A L C A L A , J J
. , j o i n e d
. J O H N S O N , J
. , c o n c u r r e d
.

I n 2007, the leg islature made signific ant amendme nts to the se lf-def ense statute, including adding provisions that allow a person, under cer tain circ umstances, to stand his g round while
defe nding himself and that, under cer tain circ umstances, cre at e a p resumption that a defe ndant’s
conduct was rea sonable. We are now called u p o n t o const rue some of those amendments and to
deter mine what instructions should be g iven in the jury char g e in such c ases.
I. BACKG ROUND
On Dec ember 2, 2007, a fig ht broke out betwee n the Kirby Bloc k g ang and the Manett Boy sMORALES — 2

g ang
. During the alterc ation, Enil L opez a nd appellant’ s brother J uan foug ht e ach other. At some point, appellant shot and killed L opez. T est imony about what transpire d was conflicting

. Some
witnesses said L opez was unarme d, and some said that he had a metal pipe (possibly a tire iron) and

was beating J uan with it. One witness said that J uan helped pull some baseba ll bats out of a car and
then participa ted with sever al others in beating L opez. Other witnesses testified that J uan was ly ing helplessly on the g round while L opez attacke d him with a pipe. Appellant was indicted and went
to trial for murde r.
T h e j u ry char g e contained instructions on defe nse of a third person. These instructi o n s incorpora ted some instructions on self-de fense

. Orig inally , the char g e included lang uag e reg arding
whether “a rea sonable person i n t h e defe ndant’s situation would not have retre ated.” Appellant objected to this instruction as not consistent with the curr ent statute. After study ing the matter and consulting with staff attorney s, the trial judge modified the instructions. Appellant maintained that
his objection still applied to the modified char g e, and he reque sted that the italicized portions of the
char g e as set out below be deleted. The trial judge denied his reque st. T h e modified jury char g e provided in re levant par

t:
A person is justified in using deadly forc e ag ainst another if he could be justified in using forc e ag ainst t h e o ther in the first place , as set out above, and when he rea sonably believes that such deadly forc e is immed iately nece ssary to protec t himself ag ainst the other person’ s use or attempted use of unlawful deadly forc e and if a person in the defendant’s situation woul d not have had a duty to re treat.
* * *
There fore a person may act ag ainst another in defe nse of a third person, provided he acte d upon a rea sonable appre hension of dang er to such third person, as it appea red to him from his standpoint at the time, a nd that he rea sonably believed such deadly forc e by his inter vention on behalf of such third person wa s immediately nece ssary to protec t such person from another ’s use or attempted use of unlawful deadly forc e,MORALES — 3

and provided it reas o nably appeared to such person, as seen from his viewpoint alone, that a person in the situati on of the person being defende d would not have had a duty to retreat. A per son who has a r ight to be prese nt at t he location wher e the forc e is used, who has not provoked the person ag ainst whom the forc e is used, and who is not eng ag ed in criminal activity at the time the forc e is used is not require d to retre at befor e using forc e as de scribed he rein.
* * * [I f] it rea sonably appea

red to defe ndant that the life or person of J uan Carlos Morales was in dang er, and there was crea ted i n defe ndant’s mind a re asonable expectation o r fe ar of J uan Carlos Morales’ death or serious bodily injury from the u s e o f unlawful deadly forc e at the hands of Enil L opez and that defendant reasonably believe d that, under the circumstance s th en existing, a person in Juan Carlos Morales’ situati on would not have had a duty to retreat before using deadly force in his own defense , and that the defe ndant, acting under such appre hensi on and rea sonably believing that the use of d ea d ly forc e, by his intervention, was immediately nece ssary to protec t J uan Carlos Morales agai n s t E n i l L opez’s use or attempted use of unlawful deadly forc e, then y ou will f ind the defe ndant not g uilty , or, if y ou should ha

ve a rea sonable doubt a s to w hether the defe ndant was acting in defe nse of J uan Carlos Morales on said occa sion under the fore g oing circ umstances, then y ou should g ive the defe ndant the benef it of the doubt an d find him “not g uilty .” 1
The jury char g e did not contain any instructions reg arding a presumption of rea sonable
conduct in the self-de fense context, nor did appellant reque st any such instructions. Appellant was convicted a

nd sentenc ed to twenty -five y ear s’ imprisonment. On appeal, appellant contende d, inter alia , that the trial j udg e erred in failing to delete the complained- of ref

ere nces to a duty to re t re at and that the trial judge err ed in failing to include
instructions reg arding a presumption of rea sonable conduct. Wit h respe ct to the duty to retre at, the

court of appea ls held that there was no err or in the char g e beca use “the lang uag e of the char g e states

I talics adde d. 1MORALES — 4

the penal code’ s lang uag e reg arding when a person does not have a duty to retre at almost verba tim.” 2
The court of appea ls held that the trial judge did not err in faili n g t o s u b m it instructions on the presumption of rea sonablene ss beca use it “wa s undisputed that more than seven persons, including
J uan, wer e involved in the fig ht” and that the fig ht constituted a riot, which would neg ate entitlement

to the presump t i on. Howeve r, the court of appea ls sustained a point of err or rela ting to the 3 punishment phase—the failure of the jury instructions to requi re unanimity with respe ct to the
“sudden passion” issue—and rema nded the case for a new punishment hear ing. Appellant now claims that the court of appea ls err ed in disposing of his complaints with respe ct to the defe nse-of

others instructions in the jury char g e. 4
II. ANALYSIS A. Duty to Re tre at
A defe ndant is justified in defe nding a third person if, under the circ umstances as the
defe ndant rea sonably believes them to be, the third person would be justified in defe nding himself. 5

Morales v. State , No. 05-09-00182- CR, slip op. at 12 (Tex. A pp.–Dallas April 14, 2010) 2 (not desig nated f

or publication).
Id. at 14-15. 3
The e x act wor ding of

appellant’ s g rounds for r eview is: 4 [1] Whether t he 2007 amendment to the s elf-de fense statute eliminated the duty to retre at in a self- defe nse ca se. [2] The trial court err ed in failing to char g e the jury on the statutory presumption that the appellant’ s belief t hat deadly forc e was immediately nece ssary is “pre sumed rea sonable” under c erta in circumstanc es. See T E X

. P E N A L C O D E § 9.33; Hughes v. State , 719 S.W .2d 560, 564 (Tex. C ri m
. App. 5 1986). All ref

ere nces to the Pena l Code are to the curr ent ver sion unless otherwise stated.MORALES — 5

The self-de fense statute provides that deadl y force is justified if, among other things, the actor
“re asonably believes the deadly forc e is immediately nece ssary
. . . t o p rot ect himself ag ainst the
other’s use or attempted use of unlawful deadly forc e.” Be fore 2007, the self-de fense statute also 6 imposed a require ment that “a rea sonable person in the actor ’s situation would not have retre ated.” 7

I ncorpor ating this retre at provisi on with respe ct t o the d efe nse of a thi rd person meant ins tructing
the j u ry t hat the defe ndant must have “re asonably believed that a rea sonable person in the third person’ s situation would not have retre ated.” 8
But this retre at provision was deleted in 2007. Wit h respe ct to situations involving deadly 9
forc e, the leg islature added provisions specify ing when a person does not have a duty to retre at, namely : (c) A person who has a rig ht to be present at the l ocation where the deadly forc e is used, who ha s not provoked the pe rson aga inst whom the deadly forc e is used, and who is not en gage d in criminal activity at the time the deadly forc e is used is not require d to retre at bef

ore using deadly

forc e as de scribed by

this section. (d) For purposes of Subsection (a) (2), in deter mining whether an actor descr ibed by S ubsection (c) rea sonably believed that the use of deadly forc e was nece ssary , a finder of fac t may not consider whe ther the a ctor fa iled to retre at. 1 0
These “no duty to retre at” provisions are not all-enc ompassing. By their lang uag e, they do not apply

T E X

. P E N A L C O D E § 9.32(a) (2)( A). 6
T E X

. P E N A L C O D E § 9.32(a) (2) ( West 2006). 7 Hughes , 719 S.W .2d at 564. 8
See T E X

. P E N A L C O D E § 9.32(a) ; Acts 2007, 80 L eg ., ch. 1, § 3, ef f. Sept. 1, 2007. 9 t h
T E X

. P E N A L C O D E § 9.32(c) , (d); Acts 2 0 0 7 , 8 0 L eg. , ch. 1, § 3, eff

. Sept. 1, 2007. 1 0 t h Counterpar

t provisions with respe ct to self-de fense that does not involve deadly forc e wer e also added. See T E X

. P E N A L C O D E § 9.31(e) , (f) ; Acts 2007, 80 L eg ., ch. 1, § 2, ef f. Sept. 1, 2007. t hMORALES — 6

if the defe ndant provoked the person ag ainst whom forc e or deadly forc e was used or if the defe ndant

was eng ag ed in criminal activity at the time. But when these provisions do apply , the defe ndant has no duty to retre at.
When these provisions do not apply , the failure to retre at may be considere d in deter mining
whether a defe ndant rea sonably believed that his conduct was imme d i at el y n ecessary to defe nd
himself or a third person. I n such case s, the prosec utor may arg ue the failure to retre at as a fac tor 1 1
in deter mining whether the defe ndant’s conduct rea lly was immediately nece ssary
. Or if a fac t issue
is raised reg arding the applicability of the provisions that specific ally n ega t e a duty to retre at, the

prosec utor can arg

ue that the fac ts do not satisfy the provisions and then arg ue the failure to retre at
as a f actor rele vant to the def

ensive issue.
But that does not mean that the trial court should submit a jury instruction reg arding a g ener al duty to retre at. “[S] pecia l, non-statutory instructions, even when they rela te to statutory offe nses or defe nses, g ener ally have no place in the jury char g e.” I f a matter is contained within a rele vant 1 2
statute, the trial judge may appropr iately instruct the jury on the wording of the statute. But if the 1 3 leg islature dec ides to remove the m atter from the s tatute, t hen the statute no longe r authoriz es the
inclusion of the matter in the jury char g e. Thoug h the matter might still be a rele vant evidentiar y 1 4

See T E X

. P E N A L C O D E §§ 9.31 (for ce is ju s t i fi ed “when and to the deg ree the actor 1 1
rea sonably believes the forc e is immediately nece ssary to protec t” ag ainst unlawful forc e), 9.32 (“w hen and to the deg ree the ac tor rea sonably believes the deadly forc e is immediate ly nece ssary ” to protect a g ainst deadly

forc e or to pre vent the imminent commission of certain c rimes).
W alters v. State , 247 S.W .3d 204, 211 (Tex. Crim. App. 2007). 1 2
Id. at 211-12. 1 3
Id. at 212. 1 4MORALES — 7

issue in the prosec ution, the unauthorized inclusion of the instruction constitutes a comment on the weig ht of the evide nce. 1 5
Be fore 2007, the deadly -for ce self-de fense statute contained a provision imposing a g ener al duty to r etre at. At that time, a jury instruction reg arding a g ener al duty to r etre at was appropr iate.
But the statute no longe r contains the lang uag e reg arding a g ener al duty to retreat

. I n s i t u ations
wher e the L eg islature has not specific ally neg at ed a d u t y t o retre at, the prosec utor can arg ue the
failure to retre at as a rele vant fac tor in deter mining the defe ndant’s mental state and the

rea sonablene ss of hi s conduct, b u t t h e jury cannot be instructed reg arding retre at because such an instruction would be a c omment on the weig ht of the evide nce.
I n an attempt to take the new version of the statute into acc ount, the trial judge modified his orig inal instructions. I nstead of asking the jury to deter mine whether “a rea sonable person would

not have retre ated,” the instructions asked the jury to de termine whether a person “would not have
had a duty to retre at.” But no lang uag e in the curr ent self-de fense statutes calls for deter mining, as

a g ener al matter, whether a duty to retre at exis ts. There are only provisions that say , under specifie d
circ umstances, that a person is not require d to retre at. The court of appea ls’s statement that the trial judge’ s instructions trac ked the curr ent statute was only half rig ht: The trial judge submitt ed an

Id. Gen er al l y s p ea k ing, an instruction constitutes a comment on the weig ht of the 1 5 evidenc e if the instruction is not g rounded in statute, is cover ed by the g ener al char g e to the jury , and focuse s the jury on a specific ty pe of evidenc e that may support an element of an offe nse or defe nse. Id. Some instructi o n s t h at we h ave held to be impermissible comments on the weig ht of the evidenc e are (or would be, if submitt ed): a self-de fense instruction reg arding “prior verba l threa ts,” Id. at 212-14, an instruct i o n o n al i b i, Giesberg v. State , 984 S.W .2d 245, 250 (Tex. Crim. App. 1998); an instructi o n t h at “intent or knowledg e may be inferr ed by acts done or words spoken,” Brown v. State , 122 S.W .3d 794, 801-03 (Tex. Crim. App. 2003), and an instruction that voluntary intox ication may be re l ev an t to deter mining whether a defe ndant’s conduct was intentional or knowing

. Davis v. State , 313 S.W .3d 317, 329-30 (Te x . Crim. App. 2010).MORALES — 8

instruction that trac ked the curr ent statute, but as can be seen from the italicized portions of the jury instructions set out above, he a lso submit ted additional instructions, which did not confor m to the

statute.
We conclude that the trial court err ed in submitt ing the italicized portions of the jury char g e
set out above beca

use those instructions wer e not authorized by s t at u te and they constituted
comments on the we ight of the evidenc e.
B. Pr esum ption of

Reasonableness
Wit h the 2007 amendments, the L eg islature added provision s t hat require d the jury to

presume that deadly forc e was rea sonable under cer tain circ umstances. Acc ording to appellant, the 1 6 following presumption should have be en submitted:
The actor ’s b elief under Subsection (a) (2) that the deadly forc e was immediately nece ssary as descr ibed by that subdivision is presumed to be rea sonable if the actor : (1) knew o r h ad re ason to believe that the person ag ainst whom the deadly forc e was used .

. . was commit ting or attempting to c ommit an off ense de scribed by

Subsection (a) (2)( B) ; (2) did not provoke the person ag ainst whom the forc e was used; and (3) was not otherwise eng ag ed in criminal activity , other than a Class C misdemeanor that is a violation of a law o r o rd i n ance reg ulating traff ic at the time the f

orce was used. 1 7
The P enal Code require s that a presumption that favor s the defendant be s u b m i t t ed t o t he jury “if

t h er e is sufficie nt evidenc e of the fac ts that g ive rise to the presumption

. . . unless t h e co u rt i s

T E X

. P E N A L C O D E § 9.32(b); Acts 2007, 80 L eg ., ch. 1, § 3, eff

. Sept. 1, 2007. 1 6 t h C o unterpa

rt provisions with respe ct to self-de fense that does not involve deadly forc e wer e also added. See T E X

. P E N A L C O D E § 9.31(a) ; Acts 2007, 80 L eg ., ch. 1, § 2, ef f. Sept. 1, 2007. t h
See T E X

. P E N A L C O D E § 9.32(b)( 1)(C), ( 2), (3)

. 1 7MORALES — 9

satisfied that the e vidence as a w hole clea rly prec ludes a finding bey ond a rea sonable doubt of the presumed f

act.” 1 8
As we observe d ear lier, the court of appea ls c oncluded that there was insufficient evidenc e
to submit the presumption beca use the fig ht constituted a riot, d u e t o i t s consisting of more than

seven persons, and beca

use J uan was involved in the fig ht. I f J uan wer e g uilty of violating the riot
statute, then he would be “other wise eng ag ed in criminal activity ,” and the presumption would not apply to any forc e or de adly

forc e used by

him. 1 9
Under the riot statute, a riot exis ts if, among other things, an “asse mblag e of seven or more persons” results in conduct that “cr eate s an immediate dang er of damag e to proper ty or injury to persons.” A person commits an offe nse “if he knowing ly participa tes in a riot.” We will assume,

2 0 2 1
without de ciding , that the fig ht c onstitut ed a riot. The c ourt of appe als pointed to se vera l a cts that
showed J uan’s participa tion in the riot: fig hting L opez, pulling baseba ll bats o u t o f a car , and participa ting with seven to nine other individuals in beating L opez. But while the court of appea ls

say s that J uan’s involvement in the riot was undisputed, it does not say whether his commission of
all of these act s wa s u n d i s p u t ed. I f the evidenc e that J uan pulled baseba ll bats out of a car and participa ted in the beating is undisputed, then his participa tion in the riot would be unquestionably
established. But this evidenc e appea rs to be disputed; it seems to be inconsistent with the testimony
of other witnesses who sug g ested that L opez was beating J uan with a pipe while J uan lay helplessly

Id. , § 2.05(b)( 1). 1 8
See id. , §§ 9.31(a) (3), 9.32( b)(3)

. 1 9
Id. , § 42.02(a) (1). 2 0
Id. , §42.02(b). 2 1MORALES — 10

on the g round. We do not hold that this evidenc e is inconsistent. We mere ly note the possibili ty of inconsistency and leave it to the court of appea ls to addre ss on rema nd (if nece ssary

) whether there
is an ac tual conflict in the e vidence

. Although it appea

rs to be undisputed that J uan was fig hting L opez during the riot, the question rema ins whether J uan’s fig hting was justified as self-de fense

. The self-de fense and defe nse of third person statutes are not limit ed to particula r crimes; they simply provide that a person’ s use of forc e or deadly forc e is justified if cer tain circ umstances are met. These defe nses logic ally apply 2 2

t o the crime of participa ting in a riot, so long as all of the actor ’s actions that would otherwi s e constitute participa tion are justified under one or more of these defe nses. Not only is this 2 3 interpre tation consistent with the plain lang uag e of the self-de fense and defe nse-of -others statutes, 2 4
it avoids the absurd result of penalizing someone simply beca use his attackers are numerous. A

person who leg itimately defe nds himself ag ainst attack should not be open to criminal liability simply beca use, instead of

being fac ed with one a ttacker , he is fac ed with seve n.
We also point out that the focus of the defe nse-of -third-pe rsons defe nse is upon what the

actor rea sonabl y believes conce rning the situation of the third person. I f appellant rea sonably 2 5
believed that J uan’s participa tion in the riot was limi t ed t o l egitimately defe nding himself, then appellant would be entitled to the presumption, even if appellant’ s belief wa s actua lly incorre ct.

Alonzo v. State , 2011 Tex. Crim. App. L EXI S 1181, 5-12 (Tex. Crim. App. September 14, 2 2 2011); T E X

. P E N A L C O D E §§ 9.31(a) , 9.32(a) , 9.33.

I f only some of the acts of participa tion are justified, then, of course , the actor is g uilty of 2 3 participa ting in a r iot.

See B oykin v . State , 818 S.W .2d 782, 785 (Tex. Crim. App. 1991). 2 4
See this opini on at footnotes 5 and 7. 2 5MORALES — 11

I n this case , the court of appea ls did not addre ss whether there was some evidenc e to support

a finding that appellant rea sonably believed the fac ts to be such that, if the belief wer e acc urate , all
of J uan’s actions would be justified by self-de fense

. I f there is a conflict in the ev i d en ce on the
rele vant matters, then there may be a fac t issue supporting the submissi on of the presumption to the jury , “unless the court is satisfied that the evidenc e as a whole clea rly prec ludes a finding bey ond a

rea sonable doubt of the presumed fac t.” We conclude that t he court of appea ls’s analy sis on 2 6
whether appellant wa s entitled to a presumption cha rg e wa s incomplete.
III. DISPOSITION
The court of appe als has some fle x ibilit y in proce eding , so long a s it does not procee d in a

manner inconsistent with holdings set out above. I t may addre ss singly , or in combination, any err or

or harm issue(s) that would logic ally dispose of th e case
. The court of appea ls is fre e to make 2 7
alterna te holdings if it so desires. We reve rse the judgme nt of the court of appea ls a nd rema nd the

case for pr ocee dings c onsistent with thi s opinion.

Deliver ed: Novembe r 9, 2011 Publis h

T E X

. P E N A L C O D E § 2.05(b)( 1). We need not addre ss the standard of revie w require d for

2 6 submissi on of a defe nse presumption. That is a matter the court of appea ls can addre ss on rema nd, if nec essar

y
. See State v. Elias , 339 S.W

. 3 d 6 6 7 , 6 7 9 (Tex

. Crim. App. 2011) (cour t of appea ls’s 2 7 dispo s i t i o n o f o n e is sue can obviate the need to addre ss a differe nt issue); State v. Plambeck , 182 S.W .3d 365, 367 n.1 0 (Tex. Crim. App. 2005) (“A court is not require d to addre ss issues that become moot because of the re solution of other issues.”).