Page 22 - TPA Journal March - April 2018

light most favorable to the defendants requested defense. In this case, therefore, even though
submission.6 A trial court errs in denying a self Appellant is charged with using a deadly weapon,
defense instruction if there is some evidence, from if the evidence presented at trial triggers the appli-
any source, when viewed in the light most favor- cation of Section 9.04, Appellant would be enti-
able to the defendant, that will support the ele- tled to an instruction on, non-deadly force self
ments of self defense. defense under Section 9.31, rather than deadly
force self defense under Section 9.32. As the court
According to Section 9.31 of the Texas Penal of appeals correctly noted, [i]f Section 9.04
Code, a person is justified in using force against applies, then the use of a gun does not constitute
another when and to the degree that person rea- deadly force, and, therefore, [S]ection 9.32
sonably believes the force is immediately neces- would become inapplicable.
sary to protect himself against another persons
use or attempted use of unlawful force.8 The use If [S]ection 9.04 applies, then the use of the gun
of force against another is not justified in response would, by default, be the use of force in self
to verbal provocation alone.9 Under Texas Penal defense, and [S]ection 9.31 would be the applica-
Code, Section 9.32, a person is justified in using ble provision. Thus, we agree with the court of
deadly force if he would be justified in using force appealss conclusion that Appellant was not dis-
under Section 9.31, and he reasonably believes qualified from receiving a self defense instruction
that deadly force is immediately necessary to pro- notwithstanding the fact he was charged with
tect himself against another s use or attempted use aggravated assault with a deadly weapon.
of deadly force. However, even if a defendant is
charged with using or displaying a deadly weapon, Because Appellant presented evidence that trig-
deadly force self defense may not apply. Texas gered the application of Section 9.04, and because
Penal Code, Section 9.04, titled Threats as Section 9.04 is not a separate statutory defense,
Justifiable Force, provides as follows: but is encompassed within Section 9.31 self
defense, the trial court should have considered
The threat of force is justi- Section 9.04 when assessing Appellants request
fied when the use of force for a self defense charge.
is justified by this chapter.
For purposes of this sec- The State argues that, because self defense is a
tion, a threat to cause death confession and avoidance justification defense,
or serious bodily injury by Appellant was not entitled to a self defense
the production of a weapon instruction because he did not admit to threatening
or otherwise, as long as the the victim with imminent bodily injury. The State
actor s purpose is limited to urges that Appellants admitted display of his
creating an apprehension weapon was not the equivalent of an admission
that he will use deadly that he threatened the complainant with imminent
force if necessary, does not harm. We disagree. Appellant asserted that he did
constitute the use of deadly not just display his gun. Appellant testified that his
force. display of his weapon was accompanied by him
telling the complainant and others to stop, get
According to the plain language of the statute, away, and leave us alone. It would have been
Section 9.04 is not a separate statutory defense; reasonable, then, for the jury to infer that the
rather, it is incorporated into the law of self words, or else I will have to use this gun to pro-

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