We are in trial now. Capital Murder. Appears that defense will ask for self defense instruction. Defendant has not testified (and we do not expect him to testify). Victim was armed, but there is no testimony that Victim exhibited weapon. Does defendant get self defense instruction, merely because victim was armed?

(Case law I found appears to give defendant requested charge no matter how weak the defensive evidence.)

Just the victim being armed isn't good enough, because it doesn't show that there was any kind of use or attempted use of unlawful force for the defendant to feel he needed to respond to. If the victim happens to be walking around with a concealed handgun, that doesn't mean that he made any kind of action that would make a reasonable person feel that he needed to defend himself.

The "no matter how weak" is supposed to keep the trial judge from making credibility calls. But unless the evidence, if believed, could actually amount to a legitimate self-defense claim, you don't get the instruction.

Was the defendant even aware that the victim had a weapon?

Be careful with denying any defensive instruction. But even for self-defense there must be some evidence to support it, even if a scintalla, weak, or unbeleivable. Also the defendant must admit commission of the offense. Look at Ex parte Nailor, 149 S.W.3d 125, 132 (CCA 2004); Martinez v. S., 775 S.W.3d 645 (CCA 89); Sanders v. S., 632 S.W.2d 346, 348 (CCA 82)

Thanks John, the three cases you cite are what my boss was looking for.

In the wise words of one of the finest appellate prosecutors I've known, namely R.J. MacReady, give them the instruction, argue the facts and avoid a retrial after the guilty.