When if at all are you entitled to a self defense instrcution when for example Party A shoots at Party B, B shots back to defend himself but misses and kills party C.

this issue of "transferred self-defense" came up in one of our cases, hayes v. state, 124 S.W.3d 780 (Tex. App.--Houston [1st Dist.] 2003). texas penal code section 9.05 doesn't allow the reckless killing of an innocent third person in self-defense. we relied heavily on banks v. state, 955 S.W.2d 116 (Tex. App.--Fort Worth 1997), though the court in our case held the issue wasn't preserved (and after all that briefing, too). so, at the very least, the defendant should not be entitled to such an instruction in a manslaughter case where he recklessly kills an innocent third person. see also buard v. state, 2000 WL 348564 (Dallas 2000)(not designated for publication)(noting that there is no justification corrollary to the doctrine of transferred intent).

[This message was edited by David Newell on 05-03-06 at .]