            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. PD-1155-10



                         JOSE MANUEL MORALES, Appellant

                                                v.

                                  THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIFTH COURT OF APPEALS
                          DALLAS COUNTY

             K ELLER, P.J., delivered the opinion of the Court in which M EYERS,
P RICE, W OMACK, K EASLER, H ERVEY, C OCHRAN and A LCALA, JJ., joined. J OHNSON,
J., concurred.


       In 2007, the legislature made significant amendments to the self-defense statute, including

adding provisions that allow a person, under certain circumstances, to stand his ground while

defending himself and that, under certain circumstances, create a presumption that a defendant’s

conduct was reasonable. We are now called upon to construe some of those amendments and to

determine what instructions should be given in the jury charge in such cases.

                                      I. BACKGROUND

       On December 2, 2007, a fight broke out between the Kirby Block gang and the Manett Boys
                                                                                     MORALES — 2

gang. During the altercation, Enil Lopez and appellant’s brother Juan fought each other. At some

point, appellant shot and killed Lopez. Testimony about what transpired was conflicting. Some

witnesses said Lopez was unarmed, and some said that he had a metal pipe (possibly a tire iron) and

was beating Juan with it. One witness said that Juan helped pull some baseball bats out of a car and

then participated with several others in beating Lopez. Other witnesses testified that Juan was lying

helplessly on the ground while Lopez attacked him with a pipe. Appellant was indicted and went

to trial for murder.

        The jury charge contained instructions on defense of a third person. These instructions

incorporated some instructions on self-defense. Originally, the charge included language regarding

whether “a reasonable person in the defendant’s situation would not have retreated.” Appellant

objected to this instruction as not consistent with the current statute. After studying the matter and

consulting with staff attorneys, the trial judge modified the instructions. Appellant maintained that

his objection still applied to the modified charge, and he requested that the italicized portions of the

charge as set out below be deleted. The trial judge denied his request. The modified jury charge

provided in relevant part:

        A person is justified in using deadly force against another if he could be justified in
        using force against the other in the first place, as set out above, and when he
        reasonably believes that such deadly force is immediately necessary to protect
        himself against the other person’s use or attempted use of unlawful deadly force and
        if a person in the defendant’s situation would not have had a duty to retreat.

                                                 ***

        Therefore a person may act against another in defense of a third person, provided he
        acted upon a reasonable apprehension of danger to such third person, as it appeared
        to him from his standpoint at the time, and that he reasonably believed such deadly
        force by his intervention on behalf of such third person was immediately necessary
        to protect such person from another’s use or attempted use of unlawful deadly force,
                                                                                     MORALES — 3

       and provided it reasonably appeared to such person, as seen from his viewpoint
       alone, that a person in the situation of the person being defended would not have had
       a duty to retreat.

       A person who has a right to be present at the location where the force is used, who
       has not provoked the person against whom the force is used, and who is not engaged
       in criminal activity at the time the force is used is not required to retreat before using
       force as described herein.

                                                 ***

       [If] it reasonably appeared to defendant that the life or person of Juan Carlos Morales
       was in danger, and there was created in defendant’s mind a reasonable expectation
       or fear of Juan Carlos Morales’ death or serious bodily injury from the use of
       unlawful deadly force at the hands of Enil Lopez and that defendant reasonably
       believed that, under the circumstances then existing, a person in Juan Carlos
       Morales’ situation would not have had a duty to retreat before using deadly force in
       his own defense, and that the defendant, acting under such apprehension and
       reasonably believing that the use of deadly force, by his intervention, was
       immediately necessary to protect Juan Carlos Morales against Enil Lopez’s use or
       attempted use of unlawful deadly force, then you will find the defendant not guilty,
       or, if you should have a reasonable doubt as to whether the defendant was acting in
       defense of Juan Carlos Morales on said occasion under the foregoing circumstances,
       then you should give the defendant the benefit of the doubt and find him “not
       guilty.”1

       The jury charge did not contain any instructions regarding a presumption of reasonable

conduct in the self-defense context, nor did appellant request any such instructions. Appellant was

convicted and sentenced to twenty-five years’ imprisonment.

       On appeal, appellant contended, inter alia, that the trial judge erred in failing to delete the

complained-of references to a duty to retreat and that the trial judge erred in failing to include

instructions regarding a presumption of reasonable conduct. With respect to the duty to retreat, the

court of appeals held that there was no error in the charge because “the language of the charge states




       1
           Italics added.
                                                                                     MORALES — 4

the penal code’s language regarding when a person does not have a duty to retreat almost verbatim.”2

The court of appeals held that the trial judge did not err in failing to submit instructions on the

presumption of reasonableness because it “was undisputed that more than seven persons, including

Juan, were involved in the fight” and that the fight constituted a riot, which would negate entitlement

to the presumption.3 However, the court of appeals sustained a point of error relating to the

punishment phase—the failure of the jury instructions to require unanimity with respect to the

“sudden passion” issue—and remanded the case for a new punishment hearing. Appellant now

claims that the court of appeals erred in disposing of his complaints with respect to the defense-of-

others instructions in the jury charge.4

                                            II. ANALYSIS

                                           A. Duty to Retreat

       A defendant is justified in defending a third person if, under the circumstances as the

defendant reasonably believes them to be, the third person would be justified in defending himself.5



       2
          Morales v. State, No. 05-09-00182-CR, slip op. at 12 (Tex. App.–Dallas April 14, 2010)
(not designated for publication).
       3
           Id. at 14-15.
       4
           The exact wording of appellant’s grounds for review is:

       [1] Whether the 2007 amendment to the self-defense statute eliminated the duty to
       retreat in a self-defense case.

       [2] The trial court erred in failing to charge the jury on the statutory presumption that
       the appellant’s belief that deadly force was immediately necessary is “presumed
       reasonable” under certain circumstances.
       5
        See TEX . PENAL CODE § 9.33; Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App.
1986). All references to the Penal Code are to the current version unless otherwise stated.
                                                                                   MORALES — 5

The self-defense statute provides that deadly force is justified if, among other things, the actor

“reasonably believes the deadly force is immediately necessary . . . to protect himself against the

other’s use or attempted use of unlawful deadly force.”6 Before 2007, the self-defense statute also

imposed a requirement that “a reasonable person in the actor’s situation would not have retreated.”7

Incorporating this retreat provision with respect to the defense of a third person meant instructing

the jury that the defendant must have “reasonably believed that a reasonable person in the third

person’s situation would not have retreated.”8

       But this retreat provision was deleted in 2007.9 With respect to situations involving deadly

force, the legislature added provisions specifying when a person does not have a duty to retreat,

namely:

       (c) A person who has a right to be present at the location where the deadly force is
       used, who has not provoked the person against whom the deadly force is used, and
       who is not engaged in criminal activity at the time the deadly force is used is not
       required to retreat before using deadly force as described by this section.

       (d) For purposes of Subsection (a)(2), in determining whether an actor described by
       Subsection (c) reasonably believed that the use of deadly force was necessary, a
       finder of fact may not consider whether the actor failed to retreat.10

These “no duty to retreat” provisions are not all-encompassing. By their language, they do not apply



       6
            TEX . PENAL CODE § 9.32(a)(2)(A).
       7
            TEX . PENAL CODE § 9.32(a)(2) (West 2006).
       8
            Hughes, 719 S.W.2d at 564.
       9
            See TEX . PENAL CODE § 9.32(a); Acts 2007, 80th Leg., ch. 1, § 3, eff. Sept. 1, 2007.
       10
         TEX . PENAL CODE § 9.32(c), (d); Acts 2007, 80th Leg., ch. 1, § 3, eff. Sept. 1, 2007.
Counterpart provisions with respect to self-defense that does not involve deadly force were also
added. See TEX . PENAL CODE § 9.31(e), (f); Acts 2007, 80th Leg., ch. 1, § 2, eff. Sept. 1, 2007.
                                                                                     MORALES — 6

if the defendant provoked the person against whom force or deadly force was used or if the defendant

was engaged in criminal activity at the time. But when these provisions do apply, the defendant has

no duty to retreat.

        When these provisions do not apply, the failure to retreat may be considered in determining

whether a defendant reasonably believed that his conduct was immediately necessary to defend

himself or a third person.11 In such cases, the prosecutor may argue the failure to retreat as a factor

in determining whether the defendant’s conduct really was immediately necessary. Or if a fact issue

is raised regarding the applicability of the provisions that specifically negate a duty to retreat, the

prosecutor can argue that the facts do not satisfy the provisions and then argue the failure to retreat

as a factor relevant to the defensive issue.

        But that does not mean that the trial court should submit a jury instruction regarding a general

duty to retreat. “[S]pecial, non-statutory instructions, even when they relate to statutory offenses or

defenses, generally have no place in the jury charge.”12 If a matter is contained within a relevant

statute, the trial judge may appropriately instruct the jury on the wording of the statute.13 But if the

legislature decides to remove the matter from the statute, then the statute no longer authorizes the

inclusion of the matter in the jury charge.14 Though the matter might still be a relevant evidentiary



        11
            See TEX . PENAL CODE §§ 9.31 (force is justified “when and to the degree the actor
reasonably believes the force is immediately necessary to protect” against unlawful force), 9.32
(“when and to the degree the actor reasonably believes the deadly force is immediately necessary”
to protect against deadly force or to prevent the imminent commission of certain crimes).
        12
             Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007).
        13
             Id. at 211-12.
        14
             Id. at 212.
                                                                                     MORALES — 7

issue in the prosecution, the unauthorized inclusion of the instruction constitutes a comment on the

weight of the evidence.15

        Before 2007, the deadly-force self-defense statute contained a provision imposing a general

duty to retreat. At that time, a jury instruction regarding a general duty to retreat was appropriate.

But the statute no longer contains the language regarding a general duty to retreat. In situations

where the Legislature has not specifically negated a duty to retreat, the prosecutor can argue the

failure to retreat as a relevant factor in determining the defendant’s mental state and the

reasonableness of his conduct, but the jury cannot be instructed regarding retreat because such an

instruction would be a comment on the weight of the evidence.

        In an attempt to take the new version of the statute into account, the trial judge modified his

original instructions. Instead of asking the jury to determine whether “a reasonable person would

not have retreated,” the instructions asked the jury to determine whether a person “would not have

had a duty to retreat.” But no language in the current self-defense statutes calls for determining, as

a general matter, whether a duty to retreat exists. There are only provisions that say, under specified

circumstances, that a person is not required to retreat. The court of appeals’s statement that the trial

judge’s instructions tracked the current statute was only half right: The trial judge submitted an



        15
           Id. Generally speaking, an instruction constitutes a comment on the weight of the
evidence if the instruction is not grounded in statute, is covered by the general charge to the jury, and
focuses the jury on a specific type of evidence that may support an element of an offense or defense.
Id. Some instructions that we have held to be impermissible comments on the weight of the
evidence are (or would be, if submitted): a self-defense instruction regarding “prior verbal threats,”
Id. at 212-14, an instruction on alibi, Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App.
1998); an instruction that “intent or knowledge may be inferred by acts done or words spoken,”
Brown v. State, 122 S.W.3d 794, 801-03 (Tex. Crim. App. 2003), and an instruction that voluntary
intoxication may be relevant to determining whether a defendant’s conduct was intentional or
knowing. Davis v. State, 313 S.W.3d 317, 329-30 (Tex. Crim. App. 2010).
                                                                                       MORALES — 8

instruction that tracked the current statute, but as can be seen from the italicized portions of the jury

instructions set out above, he also submitted additional instructions, which did not conform to the

statute.

           We conclude that the trial court erred in submitting the italicized portions of the jury charge

set out above because those instructions were not authorized by statute and they constituted

comments on the weight of the evidence.

                                    B. Presumption of Reasonableness

           With the 2007 amendments, the Legislature added provisions that required the jury to

presume that deadly force was reasonable under certain circumstances.16 According to appellant, the

following presumption should have been submitted:

           The actor’s belief under Subsection (a)(2) that the deadly force was immediately
           necessary as described by that subdivision is presumed to be reasonable if the actor:

                    (1) knew or had reason to believe that the person against whom the
                    deadly force was used . . . was committing or attempting to commit
                    an offense described by Subsection (a)(2)(B);

                    (2) did not provoke the person against whom the force was used; and

                    (3) was not otherwise engaged in criminal activity, other than a Class
                    C misdemeanor that is a violation of a law or ordinance regulating
                    traffic at the time the force was used.17

The Penal Code requires that a presumption that favors the defendant be submitted to the jury “if

there is sufficient evidence of the facts that give rise to the presumption . . . unless the court is



           16
          TEX . PENAL CODE § 9.32(b); Acts 2007, 80th Leg., ch. 1, § 3, eff. Sept. 1, 2007.
Counterpart provisions with respect to self-defense that does not involve deadly force were also
added. See TEX . PENAL CODE § 9.31(a); Acts 2007, 80th Leg., ch. 1, § 2, eff. Sept. 1, 2007.
           17
                See TEX . PENAL CODE § 9.32(b)(1)(C), (2), (3).
                                                                                   MORALES — 9

satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the

presumed fact.”18

       As we observed earlier, the court of appeals concluded that there was insufficient evidence

to submit the presumption because the fight constituted a riot, due to its consisting of more than

seven persons, and because Juan was involved in the fight. If Juan were guilty of violating the riot

statute, then he would be “otherwise engaged in criminal activity,” and the presumption would not

apply to any force or deadly force used by him.19

       Under the riot statute, a riot exists if, among other things, an “assemblage of seven or more

persons” results in conduct that “creates an immediate danger of damage to property or injury to

persons.”20 A person commits an offense “if he knowingly participates in a riot.”21 We will assume,

without deciding, that the fight constituted a riot. The court of appeals pointed to several acts that

showed Juan’s participation in the riot: fighting Lopez, pulling baseball bats out of a car, and

participating with seven to nine other individuals in beating Lopez. But while the court of appeals

says that Juan’s involvement in the riot was undisputed, it does not say whether his commission of

all of these acts was undisputed. If the evidence that Juan pulled baseball bats out of a car and

participated in the beating is undisputed, then his participation in the riot would be unquestionably

established. But this evidence appears to be disputed; it seems to be inconsistent with the testimony

of other witnesses who suggested that Lopez was beating Juan with a pipe while Juan lay helplessly


       18
            Id., § 2.05(b)(1).
       19
            See id., §§ 9.31(a)(3), 9.32(b)(3).
       20
            Id., § 42.02(a)(1).
       21
            Id., §42.02(b).
                                                                                      MORALES — 10

on the ground. We do not hold that this evidence is inconsistent. We merely note the possibility of

inconsistency and leave it to the court of appeals to address on remand (if necessary) whether there

is an actual conflict in the evidence.

        Although it appears to be undisputed that Juan was fighting Lopez during the riot, the

question remains whether Juan’s fighting was justified as self-defense. The self-defense and defense

of third person statutes are not limited to particular crimes; they simply provide that a person’s use

of force or deadly force is justified if certain circumstances are met.22 These defenses logically apply

to the crime of participating in a riot, so long as all of the actor’s actions that would otherwise

constitute participation are justified under one or more of these defenses.23 Not only is this

interpretation consistent with the plain language of the self-defense and defense-of-others statutes,24

it avoids the absurd result of penalizing someone simply because his attackers are numerous. A

person who legitimately defends himself against attack should not be open to criminal liability

simply because, instead of being faced with one attacker, he is faced with seven.

        We also point out that the focus of the defense-of-third-persons defense is upon what the

actor reasonably believes concerning the situation of the third person.25 If appellant reasonably

believed that Juan’s participation in the riot was limited to legitimately defending himself, then

appellant would be entitled to the presumption, even if appellant’s belief was actually incorrect.


        22
         Alonzo v. State, 2011 Tex. Crim. App. LEXIS 1181, 5-12 (Tex. Crim. App. September 14,
2011); TEX . PENAL CODE §§ 9.31(a), 9.32(a), 9.33.
        23
           If only some of the acts of participation are justified, then, of course, the actor is guilty of
participating in a riot.
        24
             See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
        25
             See this opinion at footnotes 5 and 7.
                                                                                   MORALES — 11

        In this case, the court of appeals did not address whether there was some evidence to support

a finding that appellant reasonably believed the facts to be such that, if the belief were accurate, all

of Juan’s actions would be justified by self-defense. If there is a conflict in the evidence on the

relevant matters, then there may be a fact issue supporting the submission of the presumption to the

jury, “unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a

reasonable doubt of the presumed fact.”26 We conclude that the court of appeals’s analysis on

whether appellant was entitled to a presumption charge was incomplete.

                                         III. DISPOSITION

        The court of appeals has some flexibility in proceeding, so long as it does not proceed in a

manner inconsistent with holdings set out above. It may address singly, or in combination, any error

or harm issue(s) that would logically dispose of the case.27 The court of appeals is free to make

alternate holdings if it so desires. We reverse the judgment of the court of appeals and remand the

case for proceedings consistent with this opinion.


Delivered: November 9, 2011
Publish




       26
          TEX . PENAL CODE § 2.05(b)(1). We need not address the standard of review required for
submission of a defense presumption. That is a matter the court of appeals can address on remand,
if necessary.
       27
           See State v. Elias, 339 S.W.3d 667, 679 (Tex. Crim. App. 2011) (court of appeals’s
disposition of one issue can obviate the need to address a different issue); State v. Plambeck, 182
S.W.3d 365, 367 n.10 (Tex. Crim. App. 2005) (“A court is not required to address issues that
become moot because of the resolution of other issues.”).
