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Texas Court of Criminal Appeals Holds Defendant Entitled to Self-Defense Jury Charge if There is Any Evidence to Support It

by Matt Clarke

On September 27, 2017, the Court of Criminal Appeals of Texas held that a judge must issue a jury charge on self-defense in a prosecution for aggravated assault with a deadly weapon even if the defendant’s version of events supporting self-defense is weak, contradicted, or not credible.

Cesar Alejandro Gamino was with his girlfriend walking to his parked truck at about 1:30 a.m. in downtown Fort Worth, Texas. As they passed three men sitting on a street corner, one made a lewd remark. A verbal confrontation ensued. Gamino walked to his truck, pulled out a firearm, and pointed it at the men. Two off-duty police officers working as private security nearby heard Gamino shout, “I got something for you” as he brandished the weapon.

Gamino was convicted of aggravated assault with a deadly weapon. At trial, he testified the men had threatened to “grab [his girlfriend’s] ass,” “F her if they wanted to,” and “kick [his] ass.” The threats and the fact that he is disabled made him believe that he and his girlfriend were in danger when one of the men stood up and approached him. He said he pulled the gun and shouted, “Stop, leave us alone, get away from us,” then the police arrived. He denied pointing the gun at the men or saying, “I’ve got something for you.” His girlfriend testified that she feared for her life.

Gamino asked the trial court for a self-defense jury charge. The court denied the request. Gamino was convicted of aggravated assault with a deadly weapon, and he appealed.

The Second Court of Appeals held that, viewing the evidence in the light most favorable to Gamino, the trial court erred in denying the self-defense charge. The State petitioned the Court of Criminal Appeals for discretionary review, which was granted.

The Court explained that a “defendant is entitled to a jury instruction on self defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.” When reviewing a trial court’s ruling on this issue, the Court instructed that it views “the evidence in the light most favorable to the defendant’s requested submission.” Furthermore, a trial court errs when denying a request for a self-defense instruction “if there is some evidence, from any source” that supports the claim of self-defense contained in Sections 9.04 and 9.31 (non-deadly force) or 9.32 (deadly force) of the Texas Penal Code, according to the Court.

Turning to the facts of this case, the Court concluded that Gamino was entitled to receive a self-defense instruction because there was at least some evidence that he believed brandishing his gun was immediately necessary to protect himself against the attempted use of unlawful force. According to the Court, the evidence included (1) Gamino’s testimony that the three men were going to beat him, (2) his testimony that there were three of them and he is disabled, (3) his testimony that his girlfriend was also threatened, (4) his testimony that he felt his life was in danger because of the actions of the three men, and (5) his admission that he pulled his weapon.

The Court stated that it was a matter for the jury to determine whether to believe Gamino and what weight to give the various items of evidence. It admonished that it “was not the trial court’s prerogative to preempt the issue because it thought Appellant’s version was weak, contradicted, or not credible.” Thus, the Court held Gamino was entitled to a jury instruction on self-defense and affirmed the decision of the Second Court of Appeals.

Accordingly, the Court of Criminal Appeals affirmed the decision of the Second Court of Appeals. See: Gamino v. State, 537 S.W.3d 507 (Tex. 2017).  

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Related legal case

Gamino v. State



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