Page 75 - March April 2020 TPA

him around. He realized it was Royal who was the group’s apparent or attempted use of deadly
grabbing him and on top of him, and he heard force against himself and Bryan.
footsteps coming up from behind him. As It does not matter whether Crumpton or Varley
Appellant and Royal were wrestling, Appellant individually used deadly force against Appellant; it
pulled a pistol out of his pocket, chambered a matters whether Appellant had a reasonable
round, and fired three shots. He testified that he did apprehension of actual or apparent danger from a
so because he feared for his and Bryan’s safety, group of assailants that included Crumpton and
they were being mobbed by multiple assailants, and Varley. “If there is evidence of more assailants than
he had no other alternative because he had already one, the charge must inform the jury that the
tried to retreat. One shot hit a parked car, one hit accused can defend against either, and it is error to
Royal in the leg, and one hit Varley in the chest. require the jury to believe or find that there was
Appellant went back into the restaurant, asked the more than one assailant attacking the accused.”
staff to call 9-1-1, placed the pistol on the counter The State Prosecuting Attorney as amicus curiae
in the kitchen, held his hands up, and waited for argues that Appellant did not satisfy the confession-
police to arrive. He admitted to the officers that he and-avoidance requirement for self-defense
had fired the gun. because he did not admit to knowingly shooting in
Appellant was charged with aggravated assault the direction of Crumpton and Varley. The State
with a deadly weapon for shooting Royal and took a different position at trial, maintaining that
deadly conduct for knowingly discharging a Appellant admitted to all of the elements of deadly
firearm in the direction of Varley and Crumpton. conduct on cross examination:
The jury charge included self-defense instructions State: “That you did then and there knowingly
for both offenses based on the conduct of Royal, discharge your firearm?”
but the trial judge declined to include Appellant’s Appellant: “Yes, sir”
requested self-defense instruction related to the State: “You fired your weapon in the direction of
conduct of Royal “or others with him.” The jury one or more individuals. Is that correct, sir?”
found Appellant guilty of deadly conduct but hung Appellant: “Yes, sir.”
on aggravated assault. State: “Those are all the elements that the State has
In the light most favorable to the requested to prove to deadly conduct.”
instruction, the evidence showed that five people The State Prosecuting Attorney also argues that
who were united in their hostile intent acted Section 9.31 requires evidence that the victim was
together to intimidate and chase Appellant and an assailant in his own right because self-defense is
Bryan. Right before firing the gun, Appellant heard couched in terms of using force against “another”
Royal hit Bryan. and against “the other’s” use or attempted use of
When he turned around, he saw Royal, Crumpton, unlawful force and because self-defense is based
and Prichard standing over an unconscious Bryan, on reciprocity. But Section 9.31 encompasses
and saw Royal motion for Stevenson to chase “others” because “another” is defined by the Penal
Appellant as he was trying to flee. Varley and Code, and Penal Code definitions apply to
Crumpton followed. Royal, who was bigger than grammatical variations of the defined terms. TEX.
Appellant, grabbed him by the eye socket, and PENAL CODE § 1.07(a)(5) (definition of
jumped on top of him. While he was wrestling with “another”), (b) (grammatical variations apply to
Royal, Appellant heard approaching footsteps, and defined terms). And self- defense is based on
he fired because he felt he had no other choice. On reasonableness.
this evidence a rational jury could have found that The State Prosecuting Attorney maintains that the
Appellant reasonably believed that deadly force trial court’s instructions gave Appellant what he
was immediately necessary to protect himself from wanted: the right to defend against Varley and
Crumpton because of Royal’s actions. But the
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