558 S.W.3d 173
Tex. App.2018Background
- Incident: Patrick Jordan fired a pistol in the parking lot of the Silver Star Smokehouse; bullets struck bystanders Summer Varley (who was shot) and Austin Crumpton; Jordan also shot and wounded Jordan Royal during an altercation.
- Charges and verdicts: Jordan was tried for aggravated assault (Royal) and deadly conduct (Varley and Crumpton). Jury deadlocked on aggravated assault; convicted of deadly conduct and sentenced to 4 years. Jordan appealed.
- Defensive theory: Jordan asserted self-defense and defense of a third person, claiming he feared being mobbed after Royal struck his friend Bryan and others advanced; he admitted discharging the firearm and surrendered inside the restaurant.
- Trial rulings at issue: the court (1) rejected requested self-defense charge variants (including presumption language and multi-assailant language), (2) included a duty-to-retreat instruction, (3) sustained a motion in limine limiting testimony about Royal’s reputation (no offer of proof), and (4) excluded testimony about Jordan’s reputation for honesty during guilt/innocence.
- Appellate outcome: Texas Court of Appeals affirmed—Jordan was not entitled to a self-defense instruction as to the deadly-conduct victims (Varley and Crumpton); failure to preserve reputation evidence; exclusion of honesty evidence was harmless.
Issues
| Issue | Jordan's Argument | State's Argument | Held |
|---|---|---|---|
| Entitlement to self-defense instruction on deadly-conduct charges | Jordan contends his perception of being mobbed (Royal’s attack + group's conduct) supported self-defense/defense-of-third-person, including against Varley and Crumpton | No evidence Varley or Crumpton used or attempted to use deadly force; Section 9.32 requires some evidence of victim's use/attempted use of deadly force or an adequate multi-assailant basis | Court: Not entitled; self-defense unavailable as to Varley/Crumpton because they did not use/attempt deadly force and no sufficient evidence linking them as assailants |
| Duty-to-retreat language in charge | Jordan argued instruction was erroneous (and requested alternate phrasing/presumptions) | Trial court included retreat language; State did not object to charge as given | Court: Overruled—no reversible error because self-defense instruction itself was not required for those victims |
| Multiple-assailant instruction/mob doctrine | Jordan argued group context (followed out, Bryan struck, Jordan feared mobbing) warranted multi-assailant instruction so deadly force could be justified against group members | State: Insufficient evidence that Varley/Crumpton were participating assailants or that they encouraged/aid/solicited deadly force | Court: Denied—evidence did not show Varley/Crumpton were part of a coordinated deadly attack so no multi-assailant justification for shots at them |
| Exclusion of reputation (Royal) and honesty (Jordan) evidence | Jordan sought to elicit Royal’s bad reputation for fighting and Jordan’s good reputation for honesty to support justification/credibility | State objected; no offer of proof on Royal’s reputation; court excluded honesty evidence as improper in guilt/innocence phase | Court: Royal reputation issue not preserved (no offer of proof); exclusion of reputation-for-honesty harmless because self-defense instruction was not available |
Key Cases Cited
- Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007) (defense is raised if some evidence supports each element)
- Ferrel v. State, 55 S.W.3d 586 (Tex. Crim. App. 2001) (no instruction if evidence, viewed favorably to defendant, does not establish self-defense)
- Werner v. State, 711 S.W.2d 639 (Tex. Crim. App. 1986) (§9.32 unavailable absent evidence of victim's use/attempted use of deadly force)
- Gamino v. State, 537 S.W.3d 507 (Tex. Crim. App. 2017) (self-defense may be appropriate where threat from multiple persons or an assailant’s aggressive conduct is shown)
- Dickey v. State, 22 S.W.3d 490 (Tex. Crim. App. 1999) (multiple-assailant instruction may be required when attack is by a group; concurring opinion explains theory)
- Frank v. State, 688 S.W.2d 863 (Tex. Crim. App. 1985) (self-defense instruction should account for multiple attackers when evidence shows a joint attack)
- Sanders v. State, 632 S.W.2d 346 (Tex. Crim. App. 1982) (multiple-assailant context may justify defensive force where group attack is shown)
- Dugar v. State, 464 S.W.3d 811 (Tex. App.—Houston [14th Dist.] 2015) (crowd/mob context can support an instruction when defendant reasonably perceives armed, coordinated threat)
- Morales v. State, 357 S.W.3d 1 (Tex. Crim. App. 2011) (a fist can constitute a deadly weapon depending on manner of use)
- Hughes v. State, 897 S.W.2d 285 (Tex. Crim. App. 1994) (harmlessness standard for improper jury instructions)