Green v. State

HILL, Justice,

dissenting.

I respectfully dissent, because I find that the trial court erred by failing to submit a charge to the jury on the defense of mistake of law as requested by Green.

Section 8.03(b) of the Texas Penal Code provides that:

It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon:

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(2) a written interpretation of the law contained in an opinion of a court of record....

TEX.PENAL CODE ANN. sec. 8.03(b) (Vernon 1974).

Green testified at trial that in arresting his principal he was relying on the opinion of the 1873 United States Supreme Court case of “Taylor v. Tanner.” As the majority acknowledges, he was relying on the case of Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 21 L.Ed. 287 (1873). In that opinion the Court acknowledged the common law right of a bail bondsman to arrest his principal without a warrant, likening the right to that of a sheriff arresting an escaping prisoner. Id. at 371.

Based on that opinion, Green felt that in making the arrest of the deceased he had the same rights as a sheriff or peace officer.

Section 9.51(a) of the Texas Penal Code authorizes the use of force by a peace officer who reasonably believes he is making a valid arrest and who has identified himself and his purpose, unless he reasonably believes his identity and purpose are known or cannot be made known to the person to be arrested.

Section 9.51(c) authorizes the use of deadly force by a peace officer if the officer reasonably believes that deadly force is immediately necessary to make an arrest if the use of force is justified and if the officer reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the actor or another if the arrest is delayed.

Green testified that when he attempted to arrest the deceased, he saw him running with something black in his hand. He said that he had been informed that the deceased had a gun. He said he shot the deceased when the deceased turned toward him and reached his hand around to where he was supposed to be carrying a gun. He said he felt that his life was in danger. He said that he thought the deceased was possibly going to shoot him or Green's son.

It would appear that if Green were a peace officer a jury would be justified in finding that the use of deadly force was authorized under section 9.51(a) and (c). Green felt that he had the same rights in making an arrest as a peace officer, based upon the case of Taylor v. Taintor, supra., which is a written interpretation of the law contained in an opinion of a court of record. Therefore, Green was mistaken as to his right, to use deadly force because of his reliance on a written interpretation of the law contained in an opinion of a court of record. Due to the fact that his mistake of law was based on such an opinion, Green was entitled to have the jury determine whether his reliance was reasonable and therefore whether he should have been acquitted under his defense of a mistake of law.

The only basis offered by the majority in support of its contention that the trial court did not err in failing to instruct the jury as to the defense of mistake of law is the fact that Green testified that he shot the deceased in self-defense and a charge on self-defense was given. Green’s testimony that he shot the deceased in self-defense is testimony which raises the defense of mistake of law because a peace officer, as I have previously noted, under some circumstances has the right to use deadly force if the officer reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the officer. Therefore, Green’s testimony that he shot the deceased in self-defense may have required an instruction on self-defense, but it also raised, and was not inconsistent with, the affirmative defense of mistake of law. Since the testimony was sufficient to give rise to the affirmative defense of mistake of law, and the testimony was not inconsistent with that defense, the trial court was required to submit the defense.

The majority’s determination that the trial court did not err by failing to give the requested mistake of law instruction is apparently based on an unspoken assumption that Green’s use of the term “self-defense” limited him to that defense, even though the testimony was not inconsistent with the mistake of law defense. Green is not an attorney. There is no reason to believe that his use of the term “self-defense” in his testimony was an election on his part as to the defense on which he relied. He was merely relating what happened in layman’s terms. His description was consistent with the requirement necessary for a peace officer’s use of deadly force. Taken together with his testimony that he was relying on the Supreme Court opinion in thinking that he had the same rights in this situation as a peace officer, it raised the defense of mistake of law. Therefore, the trial court erred in failing to instruct the jury as to the defense, because a defendant is entitled to an affirmative defense instruction on every issue raised by the evidence, regardless of the strength of the evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.1987) (opinion on reh’g).

Since Green objected to the trial court’s failure to give this instruction, we must reverse if the error is calculated to injure Green’s rights, which means that there must be some harm to the accused from the error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (opinion on reh’g). Green was harmed because he was denied the submission of the affirmative defense of mistake of law. The submission of the instruction on self-defense did not render the error harmless because it was not as favorable to the defense under the facts of this case.

The jury was instructed that if they found, beyond a reasonable doubt, that a reasonable person would have retreated before using deadly force against the deceased, that they must find against the defendant on the issue of self-defense. Had Green been in the place of a peace officer making an arrest, as he testified he thought that he was, he would have been under no duty to retreat before using deadly force in self-defense. Because Green had the burden of showing a reasonable person would not have retreated, a burden he would not have had if the mistake of law defense had been submitted, he was harmed by the court’s failure to give the mistake of law submission.

I would sustain point of error number two, reverse the judgment and remand this cause to the trial court for a new trial.