Gamino, Cesar Alejandro, 537 S.W.3d 507

Background

Late-night encounter in Fort Worth: Gamino and his girlfriend passed three men; one (Khan) made an allegedly lewd remark that Gamino perceived as directed at his girlfriend.
State witnesses (including two off-duty officers) testified Gamino said "I got something for you," produced a gun, and pointed it at the men; Gamino was charged with aggravated assault with a deadly weapon.
Gamino testified he and his girlfriend were threatened, one man stood and approached aggressively, he retrieved his gun because he (a disabled single person) feared being outnumbered, told them to stop and leave, and did not admit pointing the gun.
Defense requested a jury instruction on self-defense; the trial court denied it and the jury convicted Gamino.
The Second Court of Appeals reversed, holding evidence supported a non-deadly-force self-defense instruction under Tex. Penal Code § 9.04/9.31; the State sought review.
The Texas Court of Criminal Appeals affirmed the court of appeals, holding that Gamino produced some evidence (even if contradicted) that his gun display was intended only to create an apprehension of deadly force and thus warranted a self-defense instruction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant was entitled to a jury instruction on self-defense	State: Gamino did not "confess and avoid"—he did not admit threatening the victim with imminent bodily injury; mere display ≠ admission of a threat	Gamino: His testimony that he produced the gun to stop an advancing threat raised evidence that his conduct was defensive and intended only to create apprehension of force	Court: Reversed trial court; evidence (even if weak/contradicted) triggered self-defense instruction under §§9.04/9.31 (non-deadly-force)
Whether displaying a gun necessarily constitutes deadly force precluding non-deadly self-defense	State: Display of a deadly weapon supports aggravated-assault charge and is not necessarily merely a threat	Gamino: §9.04 treats producing a weapon to create apprehension as a threat, not necessarily deadly force, so §9.31 applies	Court: §9.04 can convert a weapon display into a justifiable threat; if triggered, deadly-force provision §9.32 is inapplicable and §9.31 governs
Whether a defendant must admit the State's factual version to obtain self-defense instruction	State: Defendant must effectively admit the conduct he committed to claim justification	Gamino: Not required to concede State’s version; admitting conduct need not admit every element of offense	Court: Defendant need not concede State’s version; only some evidence supporting justification is required
Standard for trial court when assessing defensive-instruction request	State: Trial court can deny if defendant’s evidence does not admit criminal conduct requiring justification	Gamino: Trial court must view evidence in light most favorable to defendant; credibility and weakness are for jury	Court: Trial court must give instruction if any evidence from any source, viewed favorably to defendant, supports elements of defense; jury decides credibility

Key Cases Cited

Elizondo v. State, 487 S.W.3d 185 (Tex. Crim. App. 2016) (defendant entitled to self-defense instruction if issue raised by evidence regardless of strength)
Bufkin v. State, 207 S.W.3d 779 (Tex. Crim. App. 2006) (standard for viewing defensive evidence in charge-request review)
Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007) (limitations on defensive instructions and confession-and-avoidance principle)
Alonzo v. State, 353 S.W.3d 778 (Tex. Crim. App. 2011) (burden on State to disprove justification beyond a reasonable doubt if evidence raises Chapter 9 defense)
Martinez v. State, 775 S.W.2d 645 (Tex. Crim. App. 1989) (admitting conduct does not preclude self-defense where intent element disputed)
Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004) (distinguishing denial-of-elements defenses from justification defenses)
Ferrel v. State, 55 S.W.3d 586 (Tex. Crim. App. 2001) (self-defense instruction required when any evidence supports defense)
Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) (plain-meaning statutory interpretation)