Assault Family Violence is one the worst misdemeanor charges a defendant in Texas can face (the other being DWI). Worst as in the collateral consequences of a conviction, or even a plea for deferred adjudication, can be life-changing. As a result of the serious nature of these charges, many family violence cases end up set for trial. At its core, a family violence case is still an assault, and there many defenses to an assault charge, including self-defense. If you are looking at a jury trial for an assault, one thing your lawyer must prepare for is the jury charge. That is, what the jury will be instructed to do once evidence is considered. If you are trial strategy is based on self-defense, then you want the jury to be able to consider that defense in the jury charge.
What’s the law on self-defense in family violence cases?
It’s the same as self-defense for any other type of assault.
A defendant is entitled to a self-defense instruction if there is some evidence he intended to use force against another and he did use force, but he did so only because he reasonably believed it was necessary to prevent the other’s use or attempted use of unlawful force. See TEX. PENAL CODE § 9.31(a); see also Shaw, 243 S.W.3d at 659; Valverde, 490 S.W.3d at 528.
How much evidence must the defense put on to get a self-defense instruction in the jury charge?
Not much, as long as it meets the elements of being a reasonable use of force in order to meet another’s an unlawful use of force. For example, if a Defendant testities that can be enough to get an instruction on self-defense.
A defendant’s testimony alone may be enough to require a self-defense instruction, and the truth of the defendant’s testimony is not at issue. Jenkins v. State, 468 S.W.3d 656 (Tex. App.—Houston [14th Dist.] 2015), pet. dism’d, 520 S.W.3d 616 (Tex. Crim. App. 2017) (per curiam) (citing Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984)
IMPORTANT- If a Defendant testifies, he must admit to using force to get a self-defense instruction. Self-defense is a defense to assault, which means it excuses otherwise illegal conduct. However, you must admit to the illegal conduct (assault) or you can’t have the instruction. If you are saying the assault didn’t happen that’s a way to defend against an assault case, but it’s not a self-defense claim. See
Shaw, 243 S.W.3d at 659; Valverde, 490 S.W.3d at 528.
The Defendant doesn’t have to testify though, the evidence of self-defense can come from any witness or source (video etc), and when considering the probative value the trial court must put on it’s pro-defendant glasses when deciding if a self-defense instruction is required.
“A trial court errs in denying a selfdefense instruction if there is some evidence, from any source, when viewed in the light most favorable to the defendant, that will support the elements of self defense.” Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017).