Texas Stamp


PD-0242-19 06/26/2019

“Did the 13th Court of Appeals err in the analysis for error considering the evidence in the record of this case?”

Rogers shot his lover’s husband on Valentine’s Day after being found in the husband’s bedroom closet. Rogers was convicted of burglary of a habitation with intent to commit aggravated assault. On appeal, he complained that he was improperly denied instructions on self-defense and necessity. The court of appeals held that any error was harmless. On original submission to the Court of Criminal Appeals, the Court reversed and remanded for the lower court to determine if the denials were in error. Rogers v. State, 550 S.W.3d 190, 196 (Tex. Crim. App. 2018).

On remand, the court of appeals held that Rogers was not entitled to either instruction. Even according to Rogers’s view of the evidence, there were no overt acts or words that would lead a reasonable person to believe the use of force was immediately necessary under either statute. For example, Rogers testified that the husband, David, was holding a knife when he found Rogers in the closet but did not use it; David instead grabbed Rogers’s hand because Rogers had picked up one of David’s guns from inside the closet.

Rogers says the case boils down to one simple question: would a reasonable person who got caught in his lover’s husband’s closet think that husband—who was holding a knife—posed an immediate threat justifying the use of force? He argues that it does and that the credibility of the evidence and reasonableness of his actions in light of the evidence are matters for the jury.

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