You always wonder if there is any purpose at all in filing a motion for rehearing when the CCA has issued an 8-0 opinion against you. But does anyone else think Bexar County ought to give it a try in Boget? I see a distinct difference between choosing to shoot the tires of a vehicle speeding toward you and incidentally damaging something while you are in the process of trying to incapacitate an attacker or deflect his use of force. Both might be deserving of a justification defense, but in the second instance the only way you get an intentional or knowing mental state as to the property damage is under the doctrine of transferred intent (the defendant simply wasn't evaluating the likelihood of causing property damage at the time). But, in any event, the evidence in Boget did not raise the issue that he was acting in self-defense. He never testified about any belief (reasonable or not) that his conduct was immediately necessary. He never said he was trying to use any force against Palacios. If he had testified, it appears smashing the rear window while riding along in the bed of the pickup would accomplish little toward protecting himself. I have no problem with saying 9.31 is broad enough to come into play in crimes against property. But, this case is dangerous because it permits the defense to be employed without any evidence as to belief, necessity or protective character.

I don't know whether the State raised the CA's holding on this part of the problem as a ground in its PDR or not, but if the CCA is not going to address it, then I say review was improvidently granted (the court should not search for a way to affirm a decision that is wrong on another basis). It should save the analysis of the blue back for another case--where there was evidence of self-defense. I realize it was the State that asked for review, but now it ought to suggest that the issue should not have been reached without first deciding if the defense could otherwise fit the facts.

The lesson we continue to learn from the appellate courts on defensive issues is .... when in doubt give the defensive issue to the defendant and trust your jury to reject it. I suspect that a review of reversals on appeal consist largely of jury charge stubbornness.

John Bradley
District Attorney
Williamson County, Texas

Just because you lose 8-0 (or 9-0) doesn't mean you shouldn't consider filing an MFR. After all, appellate courts often come up with reasons of their own to affirm or reverse--they are not limited to what the parties argue in their briefs or at the podium. The courts are not infallible, either. There may be a consequence or a case they miss, and they can miss things in the record.

That aside, I have no idea what to make of this one. Reminds me of the sudden passion case a couple years ago. Mims v. State, 3 S.W.3d 923 (Tex. Crim. App. 1999)(sudden passion available in attempted murder cases).

JB is dead right, though, about jury charge stubborness.

[This message was edited by John Rolater on 05-08-02 at .]