"The Eighth Court of Appeals erred in its preliminary holding that Appellant was entitled to jury instructions on the use of deadly force in self-defense because there was no evidence presented from any source of Appellant’s subjective state of mind at the time of the shooting, that is, whether he was in immediate apprehension or fear that the deceased was about to kill or seriously injure him at the time he shot the deceased, such that Appellant was not entitled to any self-defense instructions. Therefore, any errors in the self-defense instructions actually submitted did not result in egregious harm because Appellant was not entitled to the instructions in the first place."
Lozano nearly hit a woman in a bar parking lot with his truck. He stopped and glared at her, which led to her friends confronting Lozano verbally. Things escalated. Hinojos, the victim, threw an open beer can through Lozano’s open passenger-side window. Lozano retrieved a gun from a bag as Hinojos walked around to the driver’s side. Hinojos swung at Lozano multiple times through the window, possibly striking him. Lozano shot him three times and then fled to Mexico. Hinojos died that night. Lozano never said anything during the confrontation, nor did he give a statement to police or testify at his murder trial. He received an instruction on self-defense but it erroneously instructed the jury on retreat. He did not object. Lozano was convicted of murder.
Lozano argued on appeal that he was egregiously harmed by the charge error. The State countered that he was not entitled to any instruction on self-defense because entitlement has both an objective and subjective component. Not only did Hinojos’s actions not reasonably warranted deadly force, there was no evidence that Lozano subjectively believed they did. The court of appeals rejected this despite agreeing, in its harm analysis, that the evidence supporting self-defense was “relatively weak.” It rested entitlement on the statutory presumption that the actor’s belief that deadly force is necessary is reasonable if the actor had reason to believe the victim was unlawfully and with force attempting to enter his truck. See TEX. PENAL CODE § 9.32(b)(1)(A). The court found egregious harm and reversed for a new trial.
The State reiterates that self-defense requires evidence that the defendant believed his use of force was necessary. Although this evidence does not have to come from the defendant’s statement to police or testimony (as it does in the vast majority of cases), there has to be something from which the jury can reasonably conclude the defendant actually believed his use of force was necessary. There is no such evidence in this case. It should be noted that the presumption of reasonableness relied upon by the court of appeals presupposes the existence of a belief, making that argument circular.