Page 76 - March April 2020 TPA

instructions focused exclusively on Royal’s actions EVIDENCE. ACCOMPLICE STATEMENT
whereas the evidence viewed in the light most
favorable to Appellant showed that he was facing a DISSENTING OPINION
mob. This “unduly limited the jury in passing upon
appellant’s right of self-defense.” This case stems from the burning down of
Since the evidence demonstrated that Appellant had Applicant’s house. Investigators concluded that the
a reasonable apprehension ofapparent danger from fire was intentionally set and that, after speaking to
multiple assailants, he was entitled to the Applicant’s ex-girlfriend, Applicant set it. She told
instruction. them that she knew Applicant burned his house
(harmless error discussion is omitted) down because she was with him when he did it.
By contrast, correct instructions would have According to her, she was only there because
authorized an acquittal if Appellant reasonably Applicant forced her to go. His defense was that he
believed that shooting in the direction of Varley and was not there and that he did not know who set the
Crumpton had been immediately necessary to fire.
protect himself against “Royal or others” and In Zamora v. State, we said that “[t]he accomplice-
would have required rejection of self-defense if witness rule cannot be reasonably categorized as a
Appellant did not reasonably believe that shooting defensive issue that a defense attorney might
at Varley and Crumpton was immediately forego as a matter of strategy” and that “it is
necessary to protect himself against deadly force difficult to envision that any competent attorney
by “Royal or others.” The difference between the would reasonably forego an accomplice-witness
instructions that were given and those that should jury instruction as a matter of strategy based on his
have been given is the difference between theory of the case.”
foreclosing self-defense and allowing fair This case convinces me otherwise. From opening
consideration of it. That difference clearly to close, Applicant’s defense was that he was not
demonstrates that Appellant was harmed by the there and that he did not know who committed the
refusal to instruct on multiple assailants. Thus it is crime, and in line with that defense, trial counsel
unnecessary to further assess harm in relation to did not ask for an accomplice-witness instruction.
other charge errors such as: the failure to put the Now, relying on Zamora, Applicant argues that trial
burden of persuasion on the State with respect to counsel was ineffective because he should have
self-defense, the failure to instruct on the asked for an accomplice-witness instruction, or at
presumption of reasonableness with respect to a least objected to its omission. I think that we
defendant’s belief that deadly force is immediately should reexamine our holding in Zamora.
necessary, and conditioning self-defense on the Imagine sticking to the same story the entire trial:
duty to retreat. you were not there when your house was set on fire,
Appellant was entitled to a self-defense instruction and you do not know who set it on fire, but at the
that referenced “Royal or others.” The failure to last inute the jury was told that your ex-girlfriend
give it was calculated to injure Appellant’s rights. might have been your accomplice. Despite the
We reverse the judgment of the court of appeals and Zamora argument, the instruction here would not
remand the case to the trial court for further help. The point of the “go for broke” argument is to
proceedings consistent with this opinion. present the jury with two choices—he did it or he
did not. But giving the accomplice instruction
Jordan v. State, Tex. Crim. App., No. PD-0899- makes it appear as if you were really arguing that,
th
18, Feb. 05 , 2020. “I had nothing to do with the crime, unless you
think I did, in which case my ex-girlfriend was my

March/April 2020 www.texaspoliceassociation.com • (512) 458-3140 69