Core of Defense of Third Person Is What the Actor Reasonably Believes Concerning the Situation of the Third Person


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


It was a hectic, confusing scene in Dallas on December 2, 2007. A fight broke out between two gangs: Kirby Block and Manett Boys. It was never clearly established what, or who, precipitated the fight. What was established is that Enil Lopez and Juan Carlos Morales, the brother of Joes Manuel Morales, participated in the brawl. Some witnesses said Lopez was unarmed while others said he was armed with either a metal pipe or a tire iron. One witness said Juan assisted others in pulling baseball bats out of a vehicle after which he and others assaulted Lopez with the bats. Other witnesses, however, said Lopez had a tire iron and was beating Juan, who was lying helplessly on the ground, when Jose Manuel Morales shot and killed Lopez.


Morales raised the defense of self-defense of a third person. Three months before Morales killed Lopez the Texas Legislature made several amendments to self-defense statutes. Perhaps the most significant of those amendments created the right of a person, under certain circumstances, to stand his ground when defending himself; and, again under certain circumstances, the person is entitled to a presumption that his/her conduct was reasonable. In effect, this amendment eliminated from the self-defense statutes the traditional “duty to retreat” provision.


Last November the Texas Court of Criminal Appeals (CCA), in Morales v. State, had an opportunity to examine the 2007 “standing ground” provision in contrast to the former “duty to retreat” provision. The trial judge’s jury instructions on defense of a third person incorporated some instructions of self-defense. The judge’s original instructions contained language about whether “a reasonable person in [Morales’s] situation could not have retreated.” Defense counsel objected on the ground this charge was inconsistent with the current self-defense statute; and after researching the matter and consulting staff attorneys, the judge modified his instructions. Not satisfied with the modified instructions, defense counsel persisted with his objection and requested that the language below be deleted from the instructions:


A person is justified in using deadly force against another if he could be justified in using force against the other in the first place … and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force and if a person in the defendant’s situation would not have had a duty to retreat…

Therefore a person may act against another in defense of a third person, provided he acted upon a reasonable apprehension of danger to such third person, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force by his intervention on behalf of such third person was immediately necessary to protect such person from another’s use or attempted use of unlawful deadly force, and provided it reasonably appear to such person, as seen from his viewpoint alone, that a person in the situation of the person being defended would not have had a duty to retreat.


A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described herein.


[If] it reasonably appeared to defendant that the life or person of Juan Carlos Morales was in danger, and there was created in defendant’s mind a reasonable expectation or fear of Juan Carlos Morales’ death or serious bodily injury from the use of unlawful deadly force at the hands of Enil Lopez and that defendant reasonably believed that, under the circumstances then existing, a person in Juan Carlos Morales’ situation would not have had a duty to retreat before using deadly force in his own defense, and that the defendant, acting under such apprehension and reasonably believing that the use of deadly force, by his intervention, was immediately necessary to protect Juan Carlos Morales against Enil Lopez’s use or attempted use of unlawful deadly force, then you will find the defendant not guilty, or, if you should have a reasonable doubt as to whether the defendant was acting in defense of Juan Carlos Morales on said occasion under the foregoing circumstances, then you should give the defendant the benefit of the doubt and find him “not guilty.”


Significantly, the trial judge’s charge did not any instruction concerning the “presumption of reasonable conduct” in the self-defense context—and Morales’ defense counsel did not request this instruction. Morales was convicted and sentenced to 25 years in prison.
On appeal, Morales raised two issues: the trial judge’s failure to include the “presumption of reasonable conduct” instruction and the judge’s references to a “duty to retreat” in his instructions.


With respect to the “duty to retreat” issue, the CCA pointed out that a person is justified in defending a third person if, under the circumstances as the defendant reasonably believes them, the third person would be justified in defending himself. The self-defense statute provides that deadly force can be used to protect oneself when the person has a reasonable belief that deadly force is necessary. Prior to 2007, the self-defense statute also required that “a reasonable person in the actor’s situation would not have retreated.” Applying the “duty to retreat” provision to the defense of a third person required an instruction that the actor must have “reasonably believed that a reasonable person in the third person’s situation would not have retreated.”


With the 2007 amendments, the Legislature specified that there is no “duty to retreat” when “a person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used …” Thus, there are only two situations when the “no duty to retreat” provisions do not apply:


1) if the actor provoked the person against whom force or deadly force was inflicted, and 2) if the actor was engaged in criminal activity at the time force or deadly force was used.


But when the “no duty to retreat” provisions apply, the CCA said “the failure to retreat may be considered in determining whether a defendant reasonably believed that his conduct was immediately necessary to defend himself or a third person. In such cases, the prosecutor may argue the failure to retreat as a factor in determining whether the defendant’s conduct really was immediately necessary. Or if a factor issue is raised regarding the applicability of the provisions that specifically negate a duty to retreat, the prosecutor can argue that the facts do not satisfy the provisions and then argue the failure to retreat as a factor relevant to the defensive issue.”


The CCA then sharpen the focus of the “no duty to retreat” issue by saying that while the “failure to retreat” may be relevant evidence in a prosecution, “that does not mean that the trial court should submit a jury instruction regarding a general duty to retreat. [S]pecial, non-statutory instructions, even when they relate to statutory offenses or defenses, generally have no place in the jury charge. If a matter is contained within a relevant statute, the trial judge may appropriately instruct the jury on the wording of the statute. But if the legislature decides to remove the matter from the statute, then the statute no longer authorizes the inclusion of a matter in the jury charge. Though a matter might still be a relevant evidentiary issue in the prosecution, the unauthorized inclusion of the instruction constitutes a comment on the weight of the evidence.”


With respect to the “presumption of reasonable conduct” issue, the CCA said the 2007 amendments now require a duty to “presume that deadly force was reasonable under certain circumstances.” The self-defense statute now attaches a presumption of reasonableness when (1) the actor knew or had reason to believe that the person against whom the deadly force was used … was committing or attempting to commit an offense as offense described in the statute; (2) the actor did not provoke the person against whom the force was used; and (3) the actor was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic, at the time the force was used.


Because there was so many participants—at least seven—in the Kirby Block/Manet Boys brawl, the presumption issue was critical to the jury because of the possible “engaged in criminal activity” exception. As the CCA said,


“…the court appeals concluded that there was insufficient evidence to submit the presumption because the fight constituted a riot, due to its consisting of more than seven persons, and because Juan was involved in the fight. If Juan were guilty of violating the riot statute, then he would be ‘otherwise engaged in criminal activity,” and the presumption would not apply to any force or deadly forced used by him.


“Under the riot statute, a riot exists if, among other things, an “assemblage of seven or more persons” results in criminal conduct that”‘creates an immediate danger of damage to property or injury to persons.” A person commits an offense “if he knowingly participates in a riot.” We will assume, without deciding, that the fight constituted a riot. The court of appeals pointed to several acts that showed Juan’s participation in the riot: fighting Lopez, pulling baseball bats out of a car, and participating with seven to nine other individuals in beating Lopez. But this evidence appears to be disputed; it seems to be inconsistent with the testimony of other witnesses who suggested that Lopez was beating Juan with a pipe while Juan lay helplessly on the ground. We do not hold this is inconsistent. We merely note the possibility of inconsistency and leave it to the court of appeals to address on remand (if necessary) whether there is an actual conflict in the evidence.”


Thus, the CCA essentially said that while there appeared to be undisputed evidence that Juan and Lopez were combatants in the gang fight, that evidence alone did not answer the question of whether “Juan’s fighting was justified as self-defense.” The self-defense and defense of third person statutes justify “force or deadly force” when certain circumstances are met. “These defenses logically apply to the crime of participating in a riot,” the CCA said, “so long as all of the actor’s actions that would otherwise constitute participation are justified under one or more of these defenses. Not only is this interpretation consistent with the plain language of the self-defense and defense of others statutes, it avoids the absurd result of penalizing someone simply because his attackers are numerous. A person who legitimately defends himself against attack should not be open to criminal liability simply because, instead of being faced with one attacker, he is faced with seven.”


The CCA made it evident that the core of a defense of third person is what the actor reasonably believes concerning the situation of the third person. The CCA, therefore, concluded that even if Jose believed that Juan’s participation in the riot “limited to legitimately defending himself, then [Jose] would be entitled to the presumption, even if [his] belief was actually incorrect.” The issue then is not what the third person’s “situation” may “actually” be but what the person coming to his defense with force or deadly force “reasonably” believed the situation is—situational actuality does not trump reasonable belief.


The CCA pointed out that the court of appeals “did not address” whether Jose reasonably believed Juan was in danger of unlawful force or deadly force—the very basis of Jose’s third person defense. “If there is a conflict of the evidence on the relevant matters, then there may be a fact issue supporting the submission of the presumption to the jury,” the CCA said, “’unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.’ We conclude that the court of appeals’s analysis on whether appellant was entitled to a presumption charge was incomplete.”


The CCA remanded Morales’ case back to the court of appeals with instructions, including the court’s liberty to address these errors under “harm analysis” so long as the analysis did not conflict with the CCA’s ruling.

The lesson to be drawn from Morales is that the 2007 Legislature intended for Texans, in virtually every situation,  to have an unfettered right to stand his/her ground in defense of oneself or a third person against unlawful force or deadly force.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Houston Criminal Attorney John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization