Jeremy Deshawn Dugar v. State, 464 S.W.3d 811

On May 2, 2010, Dugar drove to a large, disorderly farewell party; after a traffic altercation he was chased by vehicles and later confronted in a parking lot by an angry crowd.
Dugar, feeling exposed in a topless Jeep with his wife aboard and seeing at least one person in the crowd with a gun, fired two or three shots over the crowd to scare them; he was then shot at and left the scene.
One bullet from Dugar’s gun fatally struck Tevin Williams, a passenger from one of the involved cars; Williams was unarmed and witnesses described him as quiet, though others described the crowd as hostile and pursuing Dugar.
Dugar admitted firing toward the crowd and later invoked self-defense in his statements; he was charged with felony murder based on aggravated assault or deadly conduct.
At trial the court initially drafted a self-defense instruction but, following the State’s objection invoking Texas Penal Code § 9.05 (preclusion when an innocent third party is recklessly killed), the court removed the self-defense instruction, concluding Williams was an innocent bystander.
The jury convicted on felony murder; on appeal the court considered whether omission of the self-defense instruction was error and whether that error caused harm.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence raised self-defense as a jury issue	State: No — no evidence Williams individually posed an immediate threat	Dugar: Yes — evidence of an aggressive, armed crowd pursuing him raised a reasonable belief of imminent danger from the group	The court held the evidence did raise self-defense (viewed from defendant’s standpoint)
Whether § 9.05 barred a self-defense instruction because Williams was an innocent bystander	State: § 9.05 removes justification when an innocent third person is recklessly killed, so no instruction	Dugar: § 9.05 applies only if jury finds recklessness; there was a fact issue whether Williams was an innocent participant or pursuing Dugar	The court held § 9.05 did not preclude the instruction because bystander status and recklessness are factual issues for the jury
Whether the trial court erred by omitting the self-defense instruction	State: Omitting was correct (no entitlement)	Dugar: Removal was error; he was entitled to the instruction and could request § 9.05 language about recklessness	The court held the trial court erred in refusing the instruction
Whether the omission caused reversible harm	State: Omission harmless	Dugar: Omission caused some harm because self-defense was his sole defense and he admitted the actus reus	The court held the omission resulted in some harm and reversed and remanded for a new trial

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (two-step charge-error review: first error, then harm)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (standard for harm from jury-charge error)
Sanders v. State, 632 S.W.2d 346 (Tex. Crim. App. 1982) (self-defense against group of assailants; bystander may be hit)
Krajcovic v. State, 393 S.W.3d 282 (Tex. Crim. App. 2013) (trial court must submit defensive issues raised by evidence)
Alonzo v. State, 353 S.W.3d 778 (Tex. Crim. App. 2011) (jury may receive self-defense instruction even when charged offense includes recklessness)
Cornet v. State, 417 S.W.3d 446 (Tex. Crim. App. 2013) (omission of confession-and-avoidance defenses like self-defense is generally harmful)
Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003) (state of mind in homicide is a factual question for the jury)