Pena, Pedro Pablo Jr.
PD-0155-21
| Tex. Crim. App. | Jun 30, 2021Background
- Pedro Pablo Pena Jr. was tried on two counts of aggravated assault: one against James Hernandez (Count I) and one against Cody Hightower (Count II).
- The jury charge contained standard self-defense instructions but did not include a distinct "multiple assailants" instruction; the self-defense text repeatedly referred to "JAMES HERNANDEZ and/or CODY HIGHTOWER."
- Pena objected at the charge conference to the absence of a multiple-assailants instruction; the trial court overruled the objection and the court of appeals affirmed.
- The dissent (from the Court of Criminal Appeals) argues the "and/or" phrasing did not convey the law that a defendant may use force against a person who is not personally using force if that person was encouraging, aiding, or advising an aggressor.
- The dissent would have granted review, concluding the self-defense charge did not correctly state multiple-assailants law and risked allowing force against a bystander based on beliefs about another person alone.
Issues
| Issue | Plaintiff's Argument (Pena) | Defendant's Argument (State) | Held (dissent) |
|---|---|---|---|
| Whether a standard self-defense instruction using "and/or" suffices as a multiple-assailants instruction | The instruction was insufficient; it failed to tell the jury that force could lawfully be used against a non‑active participant who was encouraging, aiding, or advising another | The court of appeals treated the phrase "JAMES HERNANDEZ and/or CODY HIGHTOWER" as covering multiple assailants | Dissent: the instruction misstates the law; "and/or" does not replace an instruction explaining aiding/encouraging; review should be granted |
| Whether the omission could produce legally erroneous acquittal or conviction outcomes | The phrasing could permit acquittal for an assault on a bystander if jurors believed force was necessary because of the other person alone | The State viewed the charge as adequate; no reversible error | Dissent: the error was material — the charge could allow force against someone who was not a member of the attacking group; review warranted |
Key Cases Cited
- Jordan v. State, 593 S.W.3d 340 (Tex. Crim. App. 2020) (reiterating that multiple-assailants instruction is required when evidence shows attack or threatened attack by more than one person)
- Frank v. State, 688 S.W.2d 863 (Tex. Crim. App. 1985) (multiple-assailants doctrine and jury instruction principles)
- Black v. State, 145 S.W. 944 (Tex. Crim. App. 1912) (explaining liability where a non‑attacking person encourages or aids an aggressor)
- Petty v. State, 70 S.W.2d 718 (Tex. Crim. App. 1934) (evidence viewed from defendant's standpoint may require instructions allowing defense against any or all apparent assailants)
- Sanders v. State, 632 S.W.2d 346 (Tex. Crim. App. 1982) (defendant entitled to multiple-assailants instruction though deceased did not personally attack)