In the Matter of D.L. , 1983 Tex. App. LEXIS 4823 ( 1983 )

BUTTS, Justice,

concurring.

I, too, believe the jury charge evinces • error of a fundamental nature. The unapparent section 9.05, Tex.Penal Code Ann. (Vernon 1974) is the culprit. Within the charge on self-defense, regarding the attempted murder offense against the older person and the aggravated assault offense against the baby, both alleged in the petition and tried herein, the trial court in this case instructed the jury:

Even though the respondent is justified under this law of self-defense in threatening or using deadly force against another, if in doing so he also recklessly injures an innocent third person, the justification afforded by self-defense is unavailable to the respondent for the reckless injury of the innocent third person.

The abstract definition could better have tracked the statute and stated for clarity, “the justification afforded by self-defense is unavailable in a prosecution for the reckless injury of the innocent third person.” (Emphasis added.) § 9.05. It is further noted the definition of “reckless” or “recklessly” which should have been included in the definition was omitted.

This is a codified limiting charge to be applied within the self-defense jury charge when appropriate under the facts of a particular case. It tells the jury that the justification which the defendant may have for his acts against A may not carry over to exonerate the defendant for his reckless acts against the innocent third party B.

In applying this law to the facts of a particular case the court then would charge the jury that even if they found the defendant was justified under the law of self-defense as to A, if he had recklessly injured [or killed] the innocent third person B, the justification afforded by self-defense as to A would be unavailable to defendant for the reckless injury [or death] of that innocent third person. The jury must also be instructed on “reckless” or “recklessly.” See, BRANCH’S TEX.ANN.PENAL STATUTES § 9.05 (3rd ed.).

In the present case the trial court charged the jury in applying the law to the facts of the case, in pertinent part:

Therefore, even if you believe from the evidence beyond a reasonable doubt that the respondent, D_L_, Jr. did . .. attempt to cause the death of ... Daniel Delgado . .., but you further believe from the evidence, or you have a reasonable doubt thereof, that, at the time .. . the respondent reasonably believed [Delgado was using or attempting to use deadly force] ... it was immediately necessary to protect himself ..., ... a reasonable person . .. would not have retreated, but you further believe from the evidence that the respondent did recklessly injure an innocent third person, ... you will find the respondent did engage in delinquent conduct as alleged in Paragraph VI or VIII. (Emphasis added.)

Paragraph VIII is the application paragraph of the aggravated assault offense against the baby. The trial court declared a mistrial as to this paragraph and it became moot. Consequently, had that been the only paragraph alluded to in the erroneous charge, I believe the error would be harmless. However, paragraph VI is the injury to a child application paragraph; the jury found the juvenile guilty of that offense. The error becomes obvious. The charge should have told the jury to find, instead, that self-defense was unavailable as a defense to respondent in the offenses as alleged in these two paragraphs. Of course, for this limitation to apply, a jury must make a finding of reckless action first. And, a jury must further be given the opportunity to express its reasonable doubt and find the limitation does not apply to restrict the right of self-defense in a given situation.

The charge as given would create an offense by applying part of § 9.05 in conjunction with proscribed conduct. This would authorize conviction for conduct that does not constitute a criminal offense. See, Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). I would hold this is fundamental error.

In reference to another argument by appellant, I believe had the trial court defined reckless conduct and given a jury charge on the lesser included offense of reckless injury to a child, this would have been proper, for the evidence would have supported that charge. Tex.Penal Code Ann. § 22.04(a) (Supp.1982-83). Assuming that the limiting charge on self-defense had been correct, and the jury agreed this was reckless action, all instructions would have been harmonized.

The case should be reversed.