*1 560
The record this case reflects that accident, at the time was Williams HUGHES, Appellant, John Madison driving and was in exclusive control of the car, which was in mechanical condi Texas, Appellee. Williams, although generally in good The STATE of tion. health, had been awake for approximately No. 631-85. pavement dry hours. The even Texas, Appeals Court of Criminal though heavy fog developed, perhaps En Banc. necessitating speed. a reduced The road straight, view unobstructed. Sept. pavement There were no skid marks that would indicate Williams’ attention was
(cid:127)distracted an animal or another vehicle. Finally, testimony there was that the car approximately
travelled 100 feet it after left the road and there was no indication
that it object. collided with another Brine-
gar argues presented she has a situation which reasonable minds could infer would ordinarily result an accident in the normal chain of events in the absence
negligence. carefully reviewing
After the cases from facts, other states with similar we are upholding applica- suaded the decisions ipsa loquitur tion of res are better rea- Supreme soned. As stated Court of North Carolina:
Defendant intestate inwas control of the vehicle highway when it left the on a
curve. It is unusual for an automobile to highway. leave the When it does so apparent without cause and inflicts the injury damage, an inference arises, negligence
driver’s actionable jury. which will take the case of negligence does not inference arise injury, from the mere fact arises manner which it occurred. Nichols, Greene N.C. 161 S.E.2d (1960). Brinegar presented Because has some evidence of both ipsa elements of lo- res
quiter, question presented. fact It
is the to determine prerogative preponderance whether a evidence points negligence on the
Williams. judgment
We affirm the the court appeals.
I. killing occurred on the shoulder of Nacogdoches
Farm Market Road 138 passers- County January on 1982. Two that on that after- by testified for the State and a Chevro- they noon saw a Thunderbird along pickup parked let the roadside. pickup was the the driver’s seat of the deceased, Johnson, standing Rodney him talking the driver’s door was beside Appellant observed le- Joan Goodwin. was aning on hood of the truck. Both wit- then, momentarily away, looked nesses back, looking appellant withdraw- observed ing body driver’s win- upper Morris, Orange, appellant. A. James coming dow. Smoke was seen pickup, cab of the and one of the witnesses Hancock, Atty. B. Dist. and Mar- Herbert pistol Appellant Sullivan, appellant’s saw a hand. Atty., Nacogdo- Asst. Dist. tha J. ches, Huttash, Atty., Aus- fled in the Thunderbird. Robert State’s Goodwin tin, for the State. the witnesses reached Johnson’s When floorboard,
pickup, him the they found on shot to death. Also found on the front seat longbarrel pistol, .22 loaded but un- fired. OPINION ON STATE’S PETITION FOR
DISCRETIONARY REVIEW on Goodwin took the stand behalf CLINTON, appellant. had Judge. She testified Johnson friend, long they had been her but that murder, appellant Indicted for was con- romantically never been involved. Never- victed of the lesser offense of upset theless Johnson was that Goodwin voluntary manslaughter punish- and his her “seeing” appellant and asserted to twenty years ment at assessed confinement occasion, you kill “If I have to $10,000.00. appeal and a fine of On get him I do that.” will Appeals appel- Court reversed conviction, holding lant’s the trial testimony Other defensive showed that charging, court erred of its appellant to a and Goodwin had been struction to on the law defense Hodge evening Mary at the home of on an parties, of third and in both the abstract January. earlier in When Johnson arrived application to the facts of the party appellant rose to shake his at the appellant was entitled to use hand, him and struck but Johnson cursed person must force in defense of a third him, Appellant precipitating a scuffle. in his be found a reasonable pistol actually point it at drew a but did not position would not have retreated under Johnson, merely stating that this time Hughes the circumstances. hand, gun, upper and thus the 1985). (Tex.App. Tyler, S.W.2d 356 We — words to that effect. Death threats were granted petition the State’s for discretion- exchanged, ended when altercation ary review to examine the State’s conten- Hodge out of the house. ordered Johnson ruling appeals court tion that so testified that on the Defense witnesses appears to misconstrued V.T.C.A. Pe- driving day killing Hodge Good- Tex.Cr.App. nal 9.33 and 9.32. §§ 302(c)(4), appellant win and to her house when Tex.R.App.Pro. Rule now Rule 200(c)(4). passed pickup. them in his When Johnson began Q
Johnson turned around and question, to follow One last ma’am. Did Rod- them, Hodge pulled ney you over side of the Johnson threaten to kill Hughes pulled up just road. John Hughes Johnson about two before John car behind, lengths shot him? and Goodwin and got him, out of to talk Thunderbird A Yes. Hodge stayed
while in the car. It was *3 charged The trial court on the approximately p.m., 3:00 and Goodwin and law of selfdefense and law of defense drinking throughout been a third As to defense of a third day. party the court's instructions read: Goodwin, According to following A in using deadly transpired: against force another when and to the degree he reasonably believes such force Q anyone get Did out you got else after protect if, to out? under the circumstances as he reason- A John. He I was behind me and ably be, believes them to he believes such up walked there. degree force and of force would be im- Q where, walked up You ma’am? protect mediately necessary to himself A Rodney’s To pickup. against deadly the unlawful force he rea- Q Okay. sonably threatening believes to be
A John And behind me. And protect, he to seeks aif Rodney— in his situation retreated, Q happened What would not have and then? he rea- sonably believes that his intervention is said, Rodney A “I anything don’t have immediately protect necessary to you say just to I motherfucker want to talk to Okay— Joan.” Q at point What did John if do
anything? Therefore, you even if believe from the beyond evidence a reasonable doubt that A He turned went around and back to Defendant, Hughes, John Madison pickup just front of the and leaned Johnson, Rodney shot alleged, Lamar up against the pickup. front of the believe, you you further or if have a Q Okay. happened What then? thereof, that, reasonable doubt at the said, A I “Rodney, I don’t understand so, time he reasonably did the Defendant why you’re acting said, I like this.” “If Rodney believed Lamar Johnson was you’re going to be like this we can’t even threatening Joan Goodwin with unlawful friends”, me, grabbed And [sic] deadly force and the Defendant reason- grabbed Rodney me. And when he Idid ably deadly believed the use and just pulled you back him and —I degree deadly against used know, just pulled my arms back from Rodney Lamar would Johnson be imme- grabbed said, when he I “hey, me and diately necessary protect Joan Good- you doing”, what are And I looked [sic] against win deadly such unlawful there, know, inup you back reasonably believed be threat- time I up got looked back in there he’s ening Goodwin, Joan that a reason- gun said, in his hand I got “he’s able in the situa- Defendant’s gun”, And that’s when John [sic] retreated, tion would and turned around and shot him. the Defendant believed that Q Rodney say anything prior Did his intervention was neces- reaching gun? for the Goodwin, sary protect you Joan will said, A “I if I you He told had to kill find guilty. the Defendant not you get to him I do it.” However, you believe evi- that, beyond dence a reasonable doubt place question, the time and the De- a reasonable fendant did not actor’s situation not have believe Rod- re- treated; ney threatening Lamar Johnson was
Joan Goodwin deadly with unlawful degree when and to the he rea- force, or that the Defendant did not rea- sonably believes the sonably believe the use of immediately necessary: degree and the force used (A) against against Rodney Lamar Johnson would attempted other’s use or use of unlaw- immediately necessary pro- have been ful force ... tect Joan Goodwin such unlawful argues, The State here as it did force that he appeals, court of that V.T.C.A. Penal Goodwin, threatening Joan or that 9.33(1) incorporates necessity to re- a reasonable in the Defendant’s treat if reasonable into the law of defense *4 retreated,
situation would have
or that
parties by
of third
virtue of its reference
reasonably
the Defendant did not
believe
9.32(2),
supra.
back to
su-
§
that his
immediately
intervention was
pra, reads:
necessary
protect
Goodwin,
to
you
Joan
A
justified
using
is
in
force or
against
will find
the Defendant on this
against
force
protect
another to
plea
justification.1
of
third
if:
Relying
State,
on
(1)
v.
629 S.W.2d
under the circumstances as the
Crawford
(Tex.App.
pet.),
reasonably
be,
believes them to
—Waco
appeals
court of
held
justified
9.33 and
the actor would be
§§
supra,
Section 9.31 or 9.32
do not create a
this code in
duty to retreat be-
of
using
protect
to
fore an
may
accused
use deadly force in
force
force
against
the unlawful force or
defense of a
party,
third
and sustained
appellant’s ground of
attacking
error
unlawful
force
threatening
believes to be
the third
foregoing charge.
protect;
he seeks to
(2)
the actor
II.
that his intervention is
requirement
that an accused have
necessary
protect
to
third
made a
resorting
reasonable retreat before
appeals
The court of
reasoned that to con-
to the use
in
defense of
9.33, supra,
strue
the accused
§
though
himself,
in
found
the common law
coming
if reasonable before
England,
recognized
was not
in the stat
safety
the aid
whose
utes and decisional
prior
law Texas
reasonably believes his intervention is im-
enactment of the 1974
Cooper
Penal Code.
mediately necessary
protect
would coun-
49 Tex.Cr.R.
tent appeals standpoint, the court er the his reason- unambiguously ably plain reflected word- believed that a reasonable ing supra. situation would not have §
retreated.2 III. Not does construction follow 9.33(1), plain wording supra, 9.33(2), § Because under § comports principles it also of statu- an accused must believe that tory interpretation enunciated the Code intervention is “immediately Ann., Construction Act. Tex.Gov.Code protect person,” it would be provides: § paradoxical, say least, suggest construing statute, whether or that the intended that he first not the ambiguous statute considered be required Clearly to retreat. what the face, on its a court consider among legislature did intend was to justify use of other the: matters protect force to any object sought obtained; situation apparently justified iising be dead ly protect By positing himself. law statutory common or former 9.33(1)that “the actor would provisions, including laws the same under Section ... 9.32 of this code” subjects; or similar using deadly *5 force to (5) consequences particular of a con- against that force “he believes struction ... threatening person he seeks Quite obviously, objective Legis- protect,” merely enacting supra, in lature was to § placing accused, who is the “actor” justify goes the conduct one who to the 9.33, supra, in the shoes of the § of a aid fellow he believes be person. third long So as the accused rea deadly under attack with unlawful force. sonably third appeals, As observed court of justified would using be in deadly force to consequences adopting sug- the State’s protect himself, may step the accused in gested 9.33, supra, construction of would § deadly and exercise behalf of that to “annul” purpose by be that obvious re- person. goes Part of what into the assess quiring the accused to from abstain his ment of whether third had a impulse so long Samaritan as he can rea- to exercise force in defense of sonably injury do so without to himself. In himself is whether not per or a reasonable fact, if the reading State’s were a correct position son in his would have retreated of 9.33’s reference back to then it § § deciding instead. in intervention would also follow that who acts in necessary, must accused be of a defense third would himself lieve “a reasonable in third [the have to be threatened with unlawful person’s] situation would not have retreat force, 9.32(3)(A), supra, via before he § ed.” in could turn in defense use jury be in correctly would also so threatened! Such structed, then, nullify that to find the conduct of leg- construction would indeed been objective accused have de islative behind enactment of alia, person, fense of a third it must supra.3 inter § tal, believed, 2. incidentally, Since must assess the circumstances even if the also accused, standpoint long reality a reasonable so as it third person’s position would reasonably appeared have retreated before that it found to him that resorting force: person’s posi- a reasonable in the third using tion would not have retreated before 9.33(1), supra dissent would construe § acquit- be would entitled to an require that "where circumstances raise the
565 TEAGUE, concurring in the re- law, long Judge, Considering prior it has been only. sult charging on the held that the context retreat, parties, the law of defense of Kitty to the Ge- Requiem “A Dedicated all, applicable only apply Country” noveses of this State, 114 See Mathews v. decade It is now axiomatic 526, 269, (1930); 270 Tex.Cr.R. 26 S.W.2d the assassination that commenced with State, 159, 88 225 S.W. v. Tex.Cr.R. White 1963, and concluded Kennedy President 511, (1920); Tex. Dobbs Tiny Tim from Miss separation with the 946, (1907). As Cr.R. 100 S.W. now, Vicky perhaps even until ante, at the time these cases were noted country prolifer- and State violence provided
decided the law
that an accused
ated.
acting in
did not have to retreat before
given
that has
One of the reasons
been
sup
these cases
selfdefense. Nevertheless
strange
many
for what to
of us was a
the law
port
proposition
that whatever
country
unjustifiable phenomenon in this
retreat, i.e.,
regarding
whether one
country and
that citizens of this
State
acting in his own defense must retreat
get
came
or afraid to
“involved”
reluctant
not,
apply
an
that law does not
accused
violence,
deterring
and refused to
person.
who acted
defense of a third
faith on behalf of another
intervene
seemed to ema-
at 168. Con
“This reticence
See Crawford
physical
fear of
harm than
nate less from
present
proposition,
sistent with this
our
consequences
of a
potential
9.33(1), supra, “applies”
construction
State, 52 Md.
aftermath.” Alexander v.
only
person,
the law of retreat
to the third
(Ct.Sp.App.1982).
App.
using deadly the he his and not health life but freedom thus, was aggressor; believed the the ma- reputation well, i.e., Legislature and as the jority rule goes that one to aid of who the require that did not the Good Samaritan greater rights another obtains no split to make a second decision on than the into whose shoes he then or to original whether not retreat if his stepped. Young supra. See justification intervening in was done in However, jurisdictions adopted those perceived faith the and as situation rule, minority the who intervenes killed the deceased because he reason struggle strangers in a between under the ably necessary believed that such was to mistaken but reasonable belief that he is prevent killing the per deceased from the protecting who he assumes or Thus, on son whose behalf he intervened. being unlawfully impose legal it not to duty did intend a to threatened with or bodily death serious persons retreat on such because such a thereby liability, exonerated from duty justification annul for the overlooked the distinction between an inter- short, intervention in place. the first stranger venor was a and an inter- Legislature did any our not want family.” venor who was a member of “the involving “Kitty” cases the one Ge- This unfortunately appears to once have to ever novese occur this State. The law Texas, Legisla- been the view in where the retreat, as found in our law self-de appears attempted place ture to have to fense, 9.32, supra, see simply Section not into our law some of both the common-law 9.33, supra. a Section Section right of intervention and the common-law clearly supra, encourage intended “to right of self-defense. See Arts. 1142 and protection ‘good afford Samari 1142(6), 1925 Penal Code. In Art. doubts, tans’ their removing supra, provided: it was “Violence used to impede might prevention crime and deter does not amount to an assault those who witness violent assaults battery following cases: 6. In persons, but who otherwise would aid an defense, self defense of another apparent victim of criminal violence.” Al against unlawful violence offered to his exander, supra, page 447 A.2d at person or property.” (My emphasis). Thus, cause, appellant’s right this When the enacted Section intervene kill and thereafter Johnson however, it not carry did over into Goodwin, tied to but rather de- phrase “In statute self defense.” pended upon what caused or motivated him By wording, only gave stranger its it not to intervene on Goodwin’s behalf intervene, right right but the kill place, first and whether he thereafter rea- as well. sonably necessary believed it was reading A clear of Section 9.33 should prevent kill Johnson to from kill- Johnson anyone giving make it obvious to ing Goodwin. The instruction the trial stranger right person, to defend a third cause, judge retreat, on the Legislature’s focus of attention was on practical all purposes, appel- sealed the intervene, right right and what fate, regardless lant’s he rea- whether had, intervenor thereafter and not sonably situation, then viewed the it not con did of self-defense. Johnson, lieved was to kill cern itself such instance with the re regardless the jury of whether or not retreat, quirement of which it could have might that he then and so, easily done had it chosen to see do acting capacity there “Good Section New York Penal su judge clearly Faith Samaritan.” The trial pra, provisions contrary of Art. in giving erred instruction that he did. 1142, supra, it chose not to even mention light majority opinion law self-defense It Court’s 9.33. sought (Tex. thus penalize not to Sa Good Almanza v. S.W.2d *9 gambles who through Cr.App.1984), maritan intervention should this Court remand the appeals being cause the court of for it to fore he could aid a sim- third ilarly analysis rejected by and decide or not consider whether threatened —an everyone erroneous instruction to the constitut concerned. harm I appellant? ed “some” do not At the time instant offense was com- simply think so because to would do so be mitted, provided: Section 9.32 engaging appellate “ping-pong” justice, deadly A justified using is I find despicable. is The ultimate against force another: responsibility deciding whether or not (1) justified using he would be force there “some” harm done the against the under Section 9.31 of other now, with this Court and not later. rests code; the facts Given and circumstances of this (2) if a reasonable the actor’s seen, it readily easily should be and retreated; situation have would not persons might those even be classi degree reasonably when and to being myopic, fied or characterized as deadly immediately believes the appellant by “some” harm was done the necessary: given erroneous instruction (A) protect against himself the oth- Nothing this cause. would be attempted er’s use or use of unlawful accomplished, except delay, in remanding force; deadly or appeals.
the cause to the court of (B) prevent other’s imminent reasons, I only For above concur. aggravated kidnapping, commission of murder, aggravated rape, rape, rob- MILLER, Judge, dissenting. bery, aggravated robbery. or majority opinion only severely (3)(B) subsection amended legislative restrains the intent of V.T.C.A. “rape” substitute the term with the term Penal 9.32 enacts a rule “sexual assault.” persons of defense of third that will in provides: 9.33 large place measure actor/defendor using A or is force peril for his is actions. It inconceivable deadly against protect another to that the I intended result. if: lay out will what I to be the believe correct (1) under the circumstances as the actor analysis of this issue. be, reasonably them to believes actor my analysis Both majority analy- and the justified under would be Section 9.31 or agree sis that the actor/defendor must be- using deadly 9.32 of this code lieve is immediately intervention protect force to the un- necessary protect person. the third lawful force or unlawful we ways Where is in the area of the reasonably threatening concerning defendor’s actor/ belief retreat. protect; he seeks to majority have actor/defen- the actor believes that his dor believe that intervention person in the third shoes would (the majority opinion not retreat uses the past Initially, recognize tense—would not retreated —but I an apparent have problem analyzed better conflict exists between statutes. present involving tense the when he self-defense the use of action). analysis My took the Section logically successfully coupled the actor/defendant believe preserve required that he cannot retreat and still belief that such force is imme- safety of diately necessary prevent The State of the other’s force; viz., course would have the actor/defendant be- unlawful use of if there lieve he himself would have to be immediate need the use of self-defense, threatened with unlawful force in then retreat must also *10 570 Though could, synonymous,
be reasonable. not far as he wall, reason of some requirements, these two retreat imme- or other impediment, ditch or as far as diate use of deadly comple- need for the fierceness of per- the assault would throughout ment each other the various himmit ... ... a re- [which indicates] scenarios that unfold in self-defense to personal treat the limits safety.” against deadly force situations. (emphasis supplied). however, requirements, These two “safety” Of course the relevant is that of paradoxical come applied when to situa- may if the actor: secure his own involving tions use force in de- retreat, personal safety by then such re- fense of Section seems treat is necessary and the use of deadly require protector to that a choose between justi- one’s self will not be retreating from an altercation that has fied. saving even entered into or someone in With this rule of retreat for one’s own danger. whose altercation life is personal mind, safety in I will address the Thus, a conflict arises. order resolve apparent present conflict in statutory conflict, apparent this a brief discussion of 9.33, scheme. Under Sec. concept duty prior actor’s use to retreat the use of force in a self-defense defense of a third necessary. situation is justified be must Sec. the use such permitted. Under 1, 1974, January Prior to the the effec- duty Sec. the actor has the to retreat code,
tive date penal of the new there was can do so in complete safety. duty no appended right an self-defense, cases, using deadly actor is and in force in specific some statutory dispensed references defense another he could not duty. 1225, (1925). See Article V.A.P.C. prevent have retreated to harm Stemlight See also 540 S.W.2d to himself. (Tex.Cr.App.1976), 704 and cases cited urged by appellant, As and as found therein at 705. Appeals, Waco Courts this penal completely new code took a any applica- construction useful eliminates course, different codified the old common justification tion of for use of law, provided that use of defense of another. As stated in justified only if the actor could not S.W.2d 168 Crawford have retreated. differ- Worded (Tex.App. Waco, 1982, pet.) — ently: “ ... manner in statutes [The may “if complete the actor retreat are worded] himself], safety then the of defen- use [to another ceives under attack unlawful sive force is not necessary.” force, and believes his intervention II, 131(c), Vol. Section Law De Criminal is immediately prevent (1984), fenses, p. Robinson Crimes attack, to simply away if he walk can Violence, Bailey Roth- of blatt injury do so without him- 480-81, (1973), p. the writers state: “ and leave the to the whims of victim self attempted need ... retreat not be supplied) the assailant.” (emphasis will, when so will not to do diminish fact, peril.” increase conflict, Given are called we may determine whether I, the statutes be rec- In Vol. Section Criminal Wharton’s (1957), Ann., onciled. Under pages Law and Procedure Tex.Gov.Code 311.- states (Vernon’s 1986), 509-15: required Court to read words and phrases context and impose “These courts [that them according construe hold that before the to kill rules of retreat] claimed, usage. self-defense the de- common Under Sec. fendant construing ambiguous statutes, must retreated either as we consider, factors, among other juncture, the follow- At this the conflict in the stat- *11 ing: utes Certainly, becomes troublesome. (1) sought attained; the object when a is by attack force, using deadly prior to force in any common statutory law or former deadly
provisions, including self-defense he must retreat if he can laws on the same or do so and, similar subjects; risk without unreasonable to his own earlier, safety. sonal As discussed consequences the and as particular of a con- urged by struction. Sec. 9.33 seems to that when a is faced with object justifying of deadly the use of deadly upon force attack a third party, force in self-defense guarantee is to must likewise retreat he can persons of self-defense facing do so without unreasonable risk to his own deadly by force attack someone else. “One personal safety. Obviously, this construc- may repel who is attacked force with force tion object does not serve to effectuate protect order to himself.” 21 Tex.Jur.3d of Sec. (1982), encourage persons which is to Rights Accused and cases . of Thus, cited in to act in p. reading footnote 46 at defense of others. This permits protect himself, law presents also an inherent conflict of point even killing aggressor, to the of by within simultaneously Sec. 9.33 itself he or protect she must do so to his or her requiring retreat from a situation where own life. deadly immediately required force is life, party’s save the third but where the Similarly, object justifying of the use (not being attack) actor object of the is deadly of force in defense of a third danger in no at all. is to allow the actor to the victim deadly aggressor, force attack construction, previous Given the rules of unfettered fear of reprisal. “The we must determine whether there is anoth- ordinary doctrine is may that whatever one interpretation er the statutory language of do may for himself he do for another....” object will effectuate the of the stat- Thus, Id. the use of deadly permit- requiring, utes without as did the Waco ted in preserve order to the life of a third Appeals, Courts of of party. one statute be declared in fatal conflict regard force, With to the deadly use of Fortunately with the other. in this these objectives two are counterbalanced interpretation such an possible. is by society’s interest in preservation of object of Sec. 9.32 is self-defense. life: deadly be used if there objective, however, This must not be ob- is no other reasonable option pre- that will unnecessary tained at the cost of human safety serve the of the under at- facing life. if the deadly Robinson, tack. Professor in Criminal attack can retreat and not exer- Defenses, supra, Law states: “ attack, cise force in counter protection ... of life has [T]he required actor is to do so. safety His high place proper in a scheme of social preserved, and so is the life of the attacker. values that the permit law cannot con- Similarly, object preser- of Sec. 9.33 is places duct which jeopardy, life in when vation of the life of the third If that the necessity doing so can be avoided objective may be obtained without the use by the sacrifice of the much smaller val- of then the actor must take ue standing up inheres in to an such action. aggression.” goals Based these and considera- preserve Id. at 84-5. In order to the valud life, tions, I would legislature that, therefore hold that the re- requires prior self-defense, requirement to the use treat apply force in Sec. 9.32 is to the :actor must following not have had a Sec. 9.33 in the manner: where opportunity to retreat. possibility the circumstances raise the wording applying
use of defense the statutes party, and if the actor retreat and supporting requirement reasons the retreat n preservethe safety still object particular statute. seeks protect, or she then the actor object preservation Sec. of ones must retreat not exercise life, object own and in Sec. the attacker. The standard preservation party’s life. This maintaining safety of the third interpretation legislative reflects the better maintaining is the same standard as that of presumptions forth intention set above *12 personal safety one’s own self-defense. the Government Code. Such a con- objec- This construction accommodates the is, therefore, acceptable struction more un- preserve tive Sec. is to statutory der construction rules. attack, life of the and bal- objective society’s ances with interest majority analysis, requiring that the avoiding in always unnecessary loss of a actor believe that reasonable life, human that of attack- situation not re- Crawford, supra, er. the extent To treat, sounds nice and first neat at blush. conflict, it should be overruled. possible It works well in one of the scenar- Moreover, not this construction does re- ios; where the third actor quire statutory elimination of the lan- son needn’t and in retreat fact does not. guage. The Waco and Courts of what of situation But where Appeals simply require- deleted the retreat isn’t sure can should 9.33, finding ment from Sec. including quite retreat? It is foreseeable that an duty such a did make sense. Other perceived actor would have sufficient facts support a authorities such deletion.1 to believe nec- however, Appellate required, courts are essary, but not have facts evaluate interpret to strive to without statutes (an retreat whether third should changes particular wording, matter). entirely What of different eye reconciling possible with for con- an situation where the actor thinks the third possible. guided flicts whenever We are retreat should but Ann., (Vernon’s Tex.Gov.Code § doesn’t? Must actor stand 1986), titled “Intention Enactment (as he until situation watch perceives states; Statutes”, which perceives it) it—not as the third statute, enacting presumed it is that: changes? about the situation where What (1) compliance constitutions the actor believes third needn’t of this state and the United States person is in fact retreat- retreat but that intended; holding ing? majority’s Under there is (2) entire statute intended no answer to these scenarios effectu- effective; legislative ates the clear intent manifested (3) just is in- and reasonable result protection 9.32 and § 9.33.— tended; persons against force. unlawful is in- a result feasible execution Rather, the contem- majority stifles tended; and plated action an actor. (5) public pri- interest is favored over dissent. foregoing For the reasons I interest. vate construction, above, set
This forth re- J., DAVIS, joins. change solves the conflict with the W.C. McClung’s Charges Jury give person Criminal be most Texas inconsistent edition, (revised 1983), him, person, the fol- Practice contains to defend as a a third man, lowing page defending statement on 328: to run person. SW See "Do not include the Crawford (Waco App); Dobbs SW 946.” charge on It defense of