Texas Stamp


PD-0395-20 11/25/2020

1. “The court of appeals erred by ruling the instant record insufficient, as a matter of law, to permit a rational finding that appellant reasonably believed that deadly force was immediately necessary to defend herself or Erica Rollins against a violent home intruder on April 2, 2015.”

2. “The court of appeals erred by ruling the instant record insufficient, as a matter of law, to satisfy the ‘confession and avoidance’ doctrine because: (1) appellant never ‘flatly denied’ any essential element of the offense charged; and (2) the record contains more than ample evidence from which the jury could find that appellant either did fire, or otherwise cause, the shot that injured the complainant here.”

3. “The intermediate appellate court effectively substituted its own harm analysis for findings of fact by a properly instructed jury. ”

Selectman was convicted of aggravated assault committed against her ex-girlfriend, Erica. They were still living together at the time. Erica testified that Selectman shot her during an argument. However, other evidence was contradictory.  Erica had told 911 and initially told hospital staff that she was shot after an intruder entered the house. Erica testified she said those things out of fear, and evidence showed she also told a nurse (when Selectman was not in the room) that Selectman shot her. There was also testimony that Erica was shot by an ex-boyfriend, or during a struggle between Selectman and that man. On that latter point, it is unclear who was to have held the gun. However, Selectman had gunshot residue on her hands, which could have been caused by her firing the gun or being near someone who did.  The trial court denied Selectman an instruction on self-defense and defense of a third person.

The court of appeals affirmed. It held that evidence that Selectman thought Erica’s boyfriend was an intruder and got into a scuffle was “insufficient to permit a jury to rationally infer: (1) Selectman shot the gun and admitted to her otherwise illegal conduct; and (2) Selectman reasonably believed immediate use of deadly force—shooting at Erica’s boyfriend or an intruder, but missing and hitting Erica—was necessary for the defense of herself or of Erica.” Alternatively, the court of appeals held Selectman was not harmed.  Had the jury believed the evidence that Selectman shot Erica during an attempt to defend her, the jury would not have convicted Selectman. In other words, Selectman’s defense negated rather than justified the requisite mental states of intentionally, knowingly, or recklessly causing the injury.

Selectman argues that the court of appeals failed to view the evidence in the light most favorable to the requested instructions. She also notes that the court issued its decision without the benefit of Ebikam v. State, PD-1199-18, 2020 WL 3067581 (Tex. Crim. App. June 10, 2020), which held that a defendant does not have to admit the alleged manner and means of assault so long as she does not “flatly deny” the offense. According to Selectman, it does not matter whether there is evidence she shot the gun or admitted to otherwise illegal conduct so long as she did not offer evidence that foreclosed self-defense. If, as the record shows, there is evidence that Erica was shot as a direct result of Selectman’s fight with a home intruder, the jury should have been permitted to weigh that defense even if it concluded Selectman did not fire the shot.

Alternatively, Selectman argues that the court of appeals based its harm analysis on the fact of conviction without any consideration of how the jury’s deliberations would have changed had these defenses been submitted. For example, proper instructions would have included presumptions on reasonableness when dealing with home intruders.

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