By Clinton Morgan
Assistant District Attorney in Harris County
Lozano v. State is the most important self-defense case the Court of Criminal Appeals has released in years. It’s a case about harmless error on appeal, so the instinct is to believe it’s just for appellate lawyers. To be sure, it’s a very helpful case for appellate prosecutors, but it’s much more than that.
Lozano[1] is the clearest statement we have about what evidence is needed to raise a self-defense claim. It shows that without evidence of the defendant’s subjective mental state—i.e., what the defendant was actually thinking—a defendant is not entitled to a self-defense instruction. For any prosecutors out there with a purported self-defense case with a non-testifying defendant, Lozano is a must-read.
Another shooting in a bar parking lot
Like so many marginal self-defense cases, Lozano starts in a bar parking lot. Mr. Lozano was in his truck with the windows down, staring at a group of six people. One of the men in the crowd, Jorge, took exception to how Lozano was staring at his girlfriend, so he threw a full beer can through the open passenger window into the truck. The beer “exploded” and spilled “everywhere.”
Lozano reached into the backseat and retrieved a gun. He pointed the gun at the passenger window, but Jorge did not see the gun because Jorge was running around the truck to the driver’s side. Jorge punched Lozano through the open driver’s window, and Lozano shot him three times, killing him.
Lozano did not testify at trial. The jury was instructed on self-defense but found him guilty and sentenced him to 25 years.
The erroneous duty-to-retreat instruction
On appeal, Lozano complained about jury charge error he had not objected to in the trial court.[2] The charge included the duty to retreat, telling the jury to reject self-defense if it believed a reasonable person in the defendant’s situation would have retreated rather than use deadly force. But that has not been the law since 2007, when Texas became a stand-your-ground state.
The State did not dispute that the instruction was wrong. Instead, it argued the error was not egregiously harmful, which is the standard for reversal for unobjected-to charge error. The State argued that because there was no evidence of Lozano’s subjective mental state at the time of the shooting, any error in the charge was harmless because he was not entitled to any self-defense instruction.
The Eighth Court rejected this argument. It held that because of the statutory presumption of reasonableness in Penal Code §9.32(b), the evidence showed Lozano’s belief was objectively reasonable. Yet the Eighth Court did not point to any evidence that Lozano subjectively believed that his use of force was immediately necessary. The Eighth Court found the error egregiously harmful and reversed because the error went to the central issue of Lozano’s defense.
Objective and subjective parts of self-defense
The Court of Criminal Appeals granted review and, in an opinion by Judge Hervey, unanimously reversed. The Court recognized that self-defense contains “both subjective and objective components”: The defendant must subjectively believe that the use of force is immediately necessary, and that belief must be objectively reasonable.[3] That an ordinary, prudent person in the defendant’s situation might have reasonably believed the use of force was immediately necessary to prevent the victim’s use of unlawful force does not give rise to an inference of self-defense unless there is evidence the defendant actually had such a belief. The “ordinary and prudent person standard … prevents a jury from acquitting a defendant based on self-defense when the defendant did not believe that he acted in self-defense.”[4]
The court recognized that evidence of the defendant’s state of mind can be inferred from evidence other than the defendant’s testimony. The classic examples of this are Smith v. State[5] and VanBrackle v. State,[6] where the defendants did not testify but witnesses testified to what the defendants said around the time of the crimes that demonstrated their states of mind.
But there was no evidence of Lozano saying or doing anything that demonstrated a defensive state of mind. The evidence showed Lozano being attacked, and it showed him responding to the attack. But it was silent on why he responded as he did. Maybe he was afraid for his life, or maybe he was mad someone threw a beer into his truck. The Court pointed out that the fact he shot Jorge three times further complicated the problem: “He might have shot Jorge once in self-defense, then continued shooting even though he knew Jorge was no longer a threat.”[7]
Because there was no evidence of Lozano’s subjective mental state, the Court held he was not entitled to a self-defense instruction. But what about the erroneous instruction he got? The Court held it was not egregiously harmful. Indeed, it concluded the instruction “benefitted” Lozano: He “was provided with the windfall of a possible acquittal on [self-defense, and] the self-defense charge increased the State’s burden of proof. …”[8] As a result, the Court reversed the Eighth Court and reinstated the conviction.
Takeaways
There are two sets of takeaways from this case, one for appellate practice and one for trial practice.
Lozano should be a go-to case for appellate prosecutors faced with claims of charge error. Although the holding could have been limited to simply stating the error was not “egregiously harmful,” the Court went further, noting the error “benefitted” the defendant. What this should mean—and I have already argued as much in another brief—is that this case supports the proposition that if a defendant is not entitled to a defensive instruction, any error in the wording of that instruction is harmless under any standard. This holding seems logical—if there’s no evidence of self-defense (or whatever defensive issue is involved), how would a jury ever side with the defendant under a correctly worded instruction? But before Lozano there was surprisingly little support for it in the caselaw.[9]
For trial practice, this case shows that even if there is evidence of a violent act against the defendant that could justify self-defense, a defendant is not entitled to a self-defense instruction if the evidence does not show he believed he was actually acting in self-defense. Prosecutors should, of course, be cautious in opposing self-defense instructions when that’s the defendant’s only defense. But defensive instructions that aren’t supported by the evidence confuse jurors and cause unjust acquittals, and in marginal self-defense cases, they cause unjust acquittals for terrible crimes. If the evidence doesn’t show the defendant’s subjective belief for why he used force against the complainant, Lozano is good precedent for excluding self-defense and keeping the jury charge limited to the issues raised by the evidence.
Endnotes
[1] Lozano v. State, ___ S.W.3d ___, No PD-1319-19, 2021 WL 4695809 (Tex. Crim. App., Oct. 6, 2021).
[2] Lozano v. State, No. 08-17-00251-CR, 2019 WL 5616975, at *4 (Tex. App.—El Paso Oct. 31, 2019) (not designated for publication).
[3] Lozano, 2021 WL 4695809, at *5.
[4] Id. at *6.
[5] 676 S.W.2d 584, 585 (Tex. Crim. App. 1984).
[6] 179 S.W.3d 708, 714 (Tex. App.—Austin 2005, no pet.).
[7] Lozano, 2021 WL 4695809, at *7.
[8] Id., at *8.
[9] In a 2016 unpublished opinion, the Eighth Court invoked “the long-standing rule that if a defendant is not entitled to an instruction, but the trial court nevertheless gives the instruction, any error in the instruction is harmless.” Torres v. State, No. 08-13-00027-CR, 2016 WL 5404773, at *3 (Tex. App.—El Paso Sept. 28, 2016, pet. ref’d) (not designated for publication). But the only citations it included for this “long-standing rule” were to a death-penalty case from 1994 and a case from 1899. Ibid. (citing Hughes v. State, 897 S.W.2d 285, 301 (Tex. Crim. App. 1994) and Burks v. State, 49 S.W. 389, 391 (Tex. Crim. App. 1899)). On the strength of these citations, a colleague recently persuaded the Fourteenth Court to hold that an erroneous Art. 38.23 instruction was harmless because the defendant was not entitled to the instruction. Ramirez v. State, 611 S.W.3d 645, 654 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d). Before Lozano, those two cases were the best support for this very logical proposition.
In my first appellate loss, Rodriguez v. State, 456 S.W.3d 271, 288 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d), I argued an error in the form of a self-defense instruction was harmless because the defendant was not entitled to the self-defense instruction. The First Court made the novel and, as best I can tell, never repeated holding that the State was “estopped” from making this harm argument because it had gone along with the defense at trial in treating the case as a self-defense case. The Lozano court did not look at the behavior of the State, and indeed it seems the State did not object to the self-defense instruction.