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“The court of appeals erred by holding that there was charge error, even though the appellant never objected to or requested that the jury charge include a defensive issue of self-defense instruction to the defensive issue of the lesser-included offense.”
After hours of partying and substance abuse, Appellant and another man got into a fight. The State’s witnesses saw Appellant strike first; Appellant testified he thought the other man was reaching for a gun. Appellant stabbed him multiple times in the neck and side. Though he was initially expected to live, he died after two months in the hospital. Appellant was charged with murder. Witnesses testified for and against the victim’s reputation for violence and carrying a gun. The defense also argued that complications from treatment at the hospital was the actual cause of the victim’s death. The jury charge included instructions on self-defense and aggravated assault as a lesser-included offense, and the jury convicted Appellant of aggravated assault.
For the first time on appeal, Appellant complained that the self-defense instruction in the charge applied only to murder, not to the lesser of aggravated assault. The court of appeals agreed and found the error egregiously harmful. Even though Appellant had not requested the missing self-defense instruction, the court believed the trial court was required to submit such an instruction sua sponte, citing caselaw that once self-defense is included in the charge, the trial court is required to properly apply it.
The State argues that under Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998), a trial court need not include a defensive issue in a jury charge unless the defense requests it. Unlike with other parts of the charge that are “law applicable to the case” under Article 36.14 and must be submitted regardless of party requests, the submission of defensive issues is a matter of strategy, properly left to the parties. The instruction omitted in this case is a defensive issue stacked on another defense issue, thus the trial court was under no duty to submit it.