Law of Self Defense: Weekly Law Report

2015 #29 (July 6-July 10, 2015)

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Law of Self Defense: Weekly Law Report

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Frequently Asked Questions

Q:

What is the Law of Self Defense: Law Report Weekly?

A:

Each week Law of Self Defense staff review self-defense court decisions from around the country. Those
we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report. The
cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents
and then by individual case.

Q:

The Law of Self Defense is well-known for translating the legalese of self-defense law into plain
English easily understood by non-lawyers, as you do in your books, seminars, online training, and
blog posts. Is the same effort made to translate the cases in these Weekly Reports into plain
English?

A:

Im afraid not. Translating legalese into plain English takes a lot of effort, and simply isnt tenable for
weekly reports of this type. Therefore we consider these reports a graduate-level product, for people
who already have a solid understanding of the legal principles of self-defense law. To get up to speed we
encourage you to start with our best-selling book, The Law of Self-Defense, 2nd Edition, (also available
from Amazon in print and Kindle, the NRA Store, and Gun Digest) which covers all 50 states at a high level.
You may also consider one of our state-specific live Law of Self Defense Seminars held all over the country
or state-specific online training classes. And, of course, theres always the Law of Self Defense Blog.

Q:

Do you recount each of the cases in their entirety?

A:

No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we
only summarize the portions of the cases that directly involve issues of self-defense law. What we do
include are the case citation, a list of the key self-defense law issues covered in that case, the date of the
decision, and the text of the decision that discusses the specific self-defense laws of interest.
The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.

Q:

What if I want to read the entire case?

A:

Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact,
strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best
way to understand the fullest context of the courts decisions.

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Table of Contents
FLORIDA

Page

Bretherick v. State, 2015 Fla. LEXIS 1470 (FL Supreme Court 2015)

Key issues:
self-defense immunity, burden of proof and standard of evidence
Defendant at pre-trial self-defense immunity hearing has burden of proving self-defense by
a preponderance of the evidence
Date: July 9, 2015
INDIANA
Quarles v. State, 2015 Ind. App. Unpub. LEXIS 747 (IN Ct. App. 2015)

17

Key issues:

Self-defense, elements
Burden of production, on the defendant
Burden of persuasion, on the State, beyond a reasonable doubt
Innocence, first aggressor, mutual combat
Innocence, regaining innocence, withdrawal

Date: July 7, 2015

TEXAS
Bonner v. State, 2015 Tex. App. LEXIS 7013 (TX Ct. App. 2015)

20

Key issues:
Self-defense, elements
Burden of production, on the defendant
Date: July 9, 2015

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FLORIDA
Bretherick v. State, 2015 Fla. LEXIS 1470 (FL Supreme Court 2015)
Key issues:
self-defense immunity, burden of proof and standard of evidence
Defendant at pre-trial self-defense immunity hearing has burden of proving self-defense by a
preponderance of the evidence
Date:

July 9, 2015

Decision:
The issue in this case arises from Florida's "Stand

DEFENSE IMMUNITY AT A PRETRIAL HEARING

Your Ground" law, section 776.032, Florida Statutes

AS IT DOES AT TRIAL?

(2011), which provides for immunity from prosecution

when a defendant has used force in accordance with

Id. at 341. We have jurisdiction. See art. V, 3(b)(4),

certain specified statutory circumstances. Specifically,

Fla. Const.[2]

we address the burden of proof in a pretrial

We conclude that the Fifth District correctly

evidentiary hearing where the defendant has filed a

determined that the defendant bears the burden of

motion to dismiss, claiming this statutory immunity

proof, by a preponderance of the evidence, to

from prosecution.[1]

demonstrate entitlement to Stand Your Ground

immunity at the pretrial evidentiary hearing. We

In Bretherick v. State, 135 So. 3d 337, 340 (Fla. 5th

therefore answer the certified question in the negative

DCA 2013), the Fifth District Court of Appeal held that

and approve the Fifth District's decision.

the defendant has the burden to prove, by a

preponderance of the evidence at the pretrial

In Dennis v. State, 51 So. 3d 456 (Fla. 2010), we

evidentiary hearing, that he or she is entitled to

approved the procedure of a pretrial evidentiary

immunity from prosecution. The Fifth District then

hearing set forth in Peterson v. State, 983 So. 2d 27

certified the following question of great public

(Fla. 1st DCA 2008), for evaluating a claim of

importance for this Court's review as to whether the

immunity under the Stand Your Ground law. Although

defendant or State bears the burden of proof under

in Dennis we did not separately discuss the burden of

the Stand Your Ground law:

proof, we quoted extensively from the First District

Court of Appeal's opinion in Peterson, including

ONCE THE DEFENSE SATISFIES THE INITIAL

portions in which the First District explicitly stated that

BURDEN OF RAISING THE ISSUE, DOES THE

the defendant would bear the burden of proving, by a

STATE HAVE THE BURDEN OF DISPROVING A

preponderance of the evidence, entitlement to

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immunity from prosecution at the pretrial evidentiary

by sections 776.012, 776.013, or 776.031, Florida

hearing. See Dennis, 51 So. 3d at 459-60.

Statutes (2011), the person is entitled to immunity

from criminal prosecution. Bretherick sought a pretrial

We now make explicit what was implicit in Dennis-the

evidentiary hearing on his motion to dismiss,

defendant bears the burden of proof by a

consistent with this Court's decision in Dennis, 51 So.

preponderance of the evidence at the pretrial

3d at 463, which approved the procedure of a pretrial

evidentiary hearing. This is the conclusion reached by

evidentiary hearing to consider a defendant's claim of

every Florida appellate court to consider this issue

entitlement to stand Your Ground immunity.

both before and after Dennis, and it is a conclusion

fully consistent with the legislative intent to provide

The Fifth District summarized the trial court's factual

immunity to a limited class of defendants who can

findings based on the evidence elicited at the

satisfy the statutory requirements.

evidentiary hearing as follows:

We therefore reject Bretherick's position and the

On December 29, 2011, the Bretherick family was

position advanced by the dissent that the State must

on vacation in Central Florida, driving toward

disprove entitlement to Stand Your Ground immunity

Downtown Disney, on a heavily travelled, six-lane

beyond a reasonable doubt at the pretrial evidentiary

divided road in Osceola County. Ronald

hearing, as is the State's burden to obtain a

Bretherick, the father, was driving in the middle

conviction at trial. The dissent's view has never

lane westbound when, in his rearview mirror, he

previously been embraced by any state with an

saw a blue truck rapidly approaching them. The

analogous immunity law and is actually inconsistent

truck almost side-swiped them as it passed in the

with the procedure for resolving motions to dismiss

right lane. As the truck passed the Brethericks, the

involving other types of statutory immunity. Placing

driver, Derek Dunning, "stared at them in a

the burden of proof on the defendant at the pretrial

threatening manner," but made no statements or

evidentiary hearing is principled, practical, and

gestures.

supported by our precedent.

Dunning's truck cut in front of the Bretherick
FACTS AND PROCEDURAL HISTORY

vehicle in the middle lane, slammed on the brakes,

and came to a complete stop. There was no traffic

The defendant, Jared Bretherick, was charged by

or other impediment that required this action.

information with aggravated assault with a firearm

Ronald Bretherick also stopped his vehicle, one to

under section 784.021(1)(a), Florida Statutes (2011),

two car lengths behind Dunning's truck. Dunning

for his conduct during an encounter with another

got out of his truck and walked toward the

driver on a highway in 2011. Bretherick filed a motion

Bretherick vehicle. He was unarmed. Without

to dismiss under Florida Rule of Criminal Procedure

exiting, Ronald Bretherick held up a holstered

3.190(b), claiming immunity from prosecution under

handgun, and Dunning returned to his truck

section 776.032, Florida Statutes, Florida's "Stand

without uttering a word.

Your Ground" law. The Stand Your Ground law

provides that when a person uses force as permitted
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After Dunning got back into his truck, the

Stat. At best, Mr. Dunning's driving pattern was

Defendant, Ronald's adult son, got out of the rear

reckless and his threatening act of getting out of

passenger's seat. He approached the driver's side

his truck and approaching the Defendant's vehicle

of Dunning's truck within a few feet of the driver,

was an assault. It would have been reasonable,

while pointing the handgun at Dunning. The

under the circumstances in this case, for anyone

Defendant told Dunning to move his truck or he

of the Brethericks to use non-deadly force as Mr.

would be shot. Dunning misunderstood, and

Dunning exited his vehicle, in the middle lane of a

believed that the Defendant told him that if he

divided 6 lane highway, and approached their

moved, he would be shot. This slight but critical

vehicle. The use of non-deadly force could have

misunderstanding explains everyone's subsequent

included brandishing a firearm to repel the

actions.

imminent threat of unlawful force facing them at

that moment. The Defendant must prove by a

The Defendant returned to his own vehicle and

preponderance of the evidence that the threat

took up various positions, continuing to point the

was imminent and his fear was reasonable.

gun at Dunning. The Brethericks, Dunning, and

However, the facts of this case show just the

several passersby all called 911. The Defendant's

opposite; that Dunning retreated to his truck when

mother and sister exited their vehicle and took

he saw Ronald hold up the holstered handgun.

refuge in a ditch on the north side of the road.

The threat was no longer imminent, and in fact,

The Defendant told his family that Dunning said

the possible volatile situation had been diffused.

he had a gun, but no one saw Dunning with a

The Defendant's subjective fear was no longer

weapon, and the trial court found this not to be

reasonable.

credible.[[3]] At some point, Dunning's truck rolled

back twelve to eighteen inches toward the

(Footnotes omitted.)

Brethericks' vehicle. The police arrived and

diffused the volatile encounter.

After the trial court subsequently denied Bretherick's

motion to reconsider its denial of his motion to

Bretherick, 135 So. 3d at 338-39.

dismiss, Bretherick filed a petition for writ of

prohibition in the Fifth District. The Fifth District

Based on its factual findings following the evidentiary

concluded that under the procedure for Stand Your

hearing, the trial court concluded that Bretherick did

Ground pretrial evidentiary hearings set forth in

not establish entitlement to immunity by a

Dennis, "the trial court properly placed the burden of

preponderance of the evidence and denied

proof on [Bretherick]." Id. at 340. The Fifth District

Bretherick's motion to dismiss. The trial court

then concluded that Bretherick was not entitled to

explained as follows:

Stand Your Ground immunity, determining that "based

on the trial court's findings of fact, which are

This Court finds that the actions of Derek

supported by competent, substantial evidence, . . .

Dunning did not rise to the level of a forcible

the motion to dismiss was properly denied." Id. The

felony (Aggravated Assault or False

Fifth District reasoned as follows:

Imprisonment) as defined in section 776.08, Fla.

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The trial court correctly found that Dunning's actions

she "would find that the trial court erred in placing the

did not rise to the level of false imprisonment,

burden of proof at the pretrial hearing on the

aggravated assault, or any other forcible felony, and

Defendant." Id. at 341, 344 (Schumann, J., concurring

therefore, the Defendant could not justify his use of

specially). Judge Schumann stated that she would

force on this basis. No one saw Dunning with a gun.

follow the reasoning of courts in Kentucky and

Dunning retreated to his vehicle when Ronald

Kansas and place the burden of proof upon the State

Bretherick held up a holstered weapon. The trial court

at the pretrial stage to demonstrate that the use of

also properly determined that there was no longer an

force was unjustified, because, she reasoned,

imminent threat and that the Defendant's subjective

"[p]lacing the burden of proof on the State throughout

fear at that point was objectively unreasonable.

each phase of criminal prosecution best fulfills the

legislative intent to create a broad grant of immunity."

There was at least one car length between Dunning's

Id. at 344.

vehicle and the Brethericks' vehicle. When Dunning's

truck rolled back not more than eighteen inches, that

ANALYSIS

action standing alone did not constitute the act of

false imprisonment as the Defendant contends.

The certified question asks this Court whether the

Notably, the Defendant's mother and sister exited the

State or the defendant bears the burden of proof with

vehicle and took refuge nearby. Several other cars

respect to demonstrating entitlement to immunity

passed by in the two lanes on either side of the

under the Stand Your Ground law. This is an issue of

middle lane where the Dunning and Bretherick

statutory interpretation, which we review de novo.

vehicles sat. It was not reasonable for the Defendant

See J.A.B. v. State, 25 So. 3d 554, 557 (Fla. 2010).

to believe that it was necessary for him to approach

Dunning's truck with a gun drawn in order to defend

In analyzing this issue, we begin by reviewing the

himself or his family.

statute and this Court's decision in Dennis. Then, we

determine whether the burden of proof was decided

Id. at 340-41. The Fifth District also noted, in certifying

as part of the Dennis holding. After concluding that

the question for this Court's consideration, that "[t]he

the burden of proof was not a specific holding of

issue of who bears the burden of proof may well be

Dennis, we consider whether placing the burden of

significant where the case is an extremely close one,

proof on the defendant to prove entitlement to

or where only limited evidence is presented for the

immunity from prosecution by a preponderance of the

trial court's consideration." Id. at 341. While both the

evidence at a pretrial evidentiary hearing-the

trial court and the Fifth District agreed that Bretherick

procedure that has been followed by all of the district

had not sustained his burden of proof at the pretrial

courts of appeal after Dennis-is both appropriate and

stage, neither court held that Bretherick was

consistent with the statutory scheme.

foreclosed from raising self-defense as an affirmative

defense to be considered by the jury at trial.

I. Section 776.032 & This Court's Decision in

Dennis

Judge Schumann concurred specially and

commented that if she had not felt "bound" by Dennis,
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Florida's Stand Your Ground law provides in pertinent

intent." Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967

part as follows:

So. 2d 815, 820 (Fla. 2007) (quoting V.K.E. v. State,

934 So. 2d 1276, 1286 (Fla. 2006)). Further, statutory

Immunity from criminal prosecution and civil

enactments "are to be interpreted so as to accomplish

action for justifiable use of force.-

rather than defeat their purpose." Reeves v. State,

957 So. 2d 625, 629 (Fla. 2007) (quoting Lewis v.

(1) A person who uses force as permitted in s.

Mosley, 204 So. 2d 197, 201 (Fla. 1967)).

776.012, s. 776.013, or s. 776.031[[4]] is justified

in using such force and is immune from criminal

In order to effectuate legislative intent, we held in

prosecution and civil action for the use of such

Dennis that "the plain language of section 776.032

force, unless the person against whom force was

grants defendants a substantive right to assert

used is a law enforcement officer, as defined in s.

immunity from prosecution and to avoid being

943.10(14), who was acting in the performance of

subjected to a trial." 51 So. 3d at 462. Recognizing

his or her official duties and the officer identified

that the statute was silent as to how to best effectuate

himself or herself in accordance with any

the defendant's substantive right to this immunity from

applicable law or the person using force knew or

prosecution, we rejected the Fourth District Court of

reasonably should have known that the person

Appeal's decision in Dennis v. State, 17 So. 3d 305

was a law enforcement officer. As used in this

(Fla. 4th DCA 2009), thereby also rejecting the

subsection, the term "criminal prosecution"

argument advanced by the State, that the existence

includes arresting, detaining in custody, and

of disputed issues of material fact required the denial

charging or prosecuting the defendant.

of a defendant's motion to dismiss under Florida Rule

of Criminal Procedure 3.190(c)(4).[5] Dennis, 51 So.

(2) A law enforcement agency may use standard

3d at 462.

procedures for investigating the use of force as

described in subsection (1), but theagency may

This Court reasoned in Dennis that "treating motions

not arrest the person for using force unless it

to dismiss pursuant to [the Stand Your Ground law] in

determines that there is probable cause that the

the same manner as rule 3.190(c)(4) motions would

force that was used was unlawful.

not provide criminal defendants the opportunity to

establish immunity and avoid trial that was

776.032, Fla. Stat. (emphasis added).

contemplated by the Legislature." 51 So. 3d at 462. In

addition, this Court specifically "reject[ed] the State's

This Court has explained that the "[l]egislative intent

contention that the pretrial hearing on immunity in a

guides statutory analysis." Fla. Dep't of Children &

criminal case should test merely whether the State

Family Servs. v. P.E., 14 So. 3d 228, 234 (Fla. 2009)

has probable cause to believe the defendant's use of

(citing Knowles v. Beverly Enterprises-Fla., Inc., 898

force was not legally justified." Id. at 463. As this

So. 2d 1, 5 (Fla. 2004)). In discerning legislative

Court explained:

intent, we look first to the actual language used in the

statute because "the statute's text is the most reliable

Prior to the enactment of chapter 2005-27, Laws

and authoritative expression of the Legislature's

of Florida (2005), Florida law defined certain types

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of justified force, see 776.12, 776.031, Fla.

We conclude that where a criminal defendant files

Stat. (2004), and the Florida Rules of Criminal

a motion to dismiss on the basis of section

Procedure mandated that a trial judge make a

776.032, the trial court should decide the factual

pretrial nonadversarial probable cause

question of the applicability of the statutory

determination either before or shortly after a

immunity. Accordingly, we disapprove the Fourth

defendant was taken into custody, see Fla. R.

District's reasoning in Dennis and approve the

Crim. P. 3.133 (2004). "It is a basic rule of

reasoning of Peterson on that issue.

statutory construction that 'the Legislature does

not intend to enact useless provisions, and courts

Id. at 458.

should avoid readings that would render part of a

statute meaningless.' " Martinez v. State, 981 So.

The burden of proof was discussed in both initial and

2d 449, 452 (Fla. 2008) (quoting State v. Bodden,

supplemental briefing in Dennis, and the defendant,

877 So. 2d 680, 686 (Fla. 2004)). Accordingly, the

who was represented by the Public Defender's Office,

grant of immunity from "criminal prosecution" in

urged that we adopt the remedy of an evidentiary

section 776.032 must be interpreted in a manner

hearing where the defendant proves by a

that provides the defendant with more protection

preponderance of the evidence that the charges

from prosecution for a justified use of force than

should be dismissed because he or she is entitled to

the probable cause determination previously

Stand Your Ground immunity. This position was

provided to the defendant by rule.

confirmed by counsel for the defendant during oral

argument in Dennis.[6]

Id.
Yet, the only mention of the burden of proof in the
Regarding the applicable procedure for claiming

Dennis opinion is within the following extensive

Stand Your Ground immunity, this Court determined

excerpt from Peterson, in which this Court recited the

that "Florida Rule of Criminal Procedure 3.190(b)-

district court's holding:

rather than rule 3.190(c)(4)-provides the appropriate

procedural vehicle for the consideration of a claim of

We now hold that when immunity under this law is

section 776.032 immunity." Id. at 462. This Court thus

properly raised by a defendant, the trial court must

rejected the Fourth District's view that all the State

decide the matter by confronting and weighing

had to do to defeat a motion to dismiss was to

only factual disputes. The court may not deny a

demonstrate, under a rule 3.190(d) traverse or

motion simply because factual disputes exist.

demurrer, the existence of a factual dispute as to

Here, the trial court did what was required.

whether the defendant's use of force was justified. Id.

Petitioner is not precluded from submitting the

at 458. Instead, we agreed with the First District's

matter to the jury as an affirmative defense in his

approach in Peterson that provided for an evidentiary

criminal trial.

hearing during which the trial court would determine

whether the defendant is entitled o statutory immunity.

In the absence of a procedure for handling these

Id. at 463. We stated as follows:

matters, we find guidance from the Colorado

Supreme Court's decision in People v. Guenther,

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740 P.2d 971 (Colo. 1987). In that case, the court

Dennis. Rather, the issue this Court resolved was

decided that Colorado's similar immunity statute

whether the defendant was entitled to an evidentiary

authorized a trial court to dismiss a criminal

hearing on the motion to dismiss. Thus, because this

prosecution at the pretrial stage and did not

Court in Dennis did not directly address the burden of

merely create an affirmative defense for

proof, we proceed to analyze and decide that issue.

adjudication at trial. Id. at 976. The court further

determined that a defendant raising the immunity

II. The Burden of Proof

would have the burden of establishing the factual

prerequisites to the immunity claim by a

After our decision in Dennis, each of the district

preponderance of the evidence. Id. at 980. The

courts, in reliance on either Peterson or Dennis, have

court imposed the same burden of proof as it

placed the burden of proof on the defendant to

would in motions for postconviction relief or

establish entitlement to immunity by a preponderance

motions to suppress. Id.

of the evidence at the pretrial evidentiary hearing.

See, e.g., Mederos v. State, 102 So. 3d 7, 11 (Fla. 1st

Likewise, we hold that a defendant may raise the

DCA 2012); State v. Gallo, 76 So. 3d 407, 409 & n.2

question of statutory immunity pretrial and, when

(Fla. 2d DCA 2011); State v. Vino, 100 So. 3d 716,

such a claim is raised, the trial court must

717 (Fla. 3d DCA 2012); Joseph v. State, 103 So. 3d

determine whether the defendant has shown by a

227, 230 (Fla. 4th DCA 2012); Bretherick, 135 So. 3d

preponderance of the evidence that the immunity

at 340. Even before this Court's decision in Dennis, all

attaches. As noted by the trial court, courts have

of Florida's district courts other than the Fourth

imposed a similar burden for motions challenging

District had addressed this issue and had explicitly

the voluntariness of a confession. See, e.g.,

agreed with the First District in Peterson to require a

McDole v. State, 283 So. 2d 553, 554 (Fla. 1973).

pretrial evidentiary hearing, in which the defendant

We reject any suggestion that the procedure

has the burden to prove entitlement to Stand Your

established by rule 3.190(c) should control so as

Ground immunity by a preponderance of the

to require denial of a motion whenever a material

evidence. See McDaniel v. State, 24 So. 3d 654, 656

issue of fact appears.

(Fla. 2d DCA 2009); State v. Yaqubie, 51 So. 3d 474,

475 (Fla. 3d DCA 2010); Gray v. State, 13 So. 3d 114,

51 So. 3d at 459-60 (emphasis added) (quoting

115 (Fla. 5th DCA 2009).

Peterson, 983 So. 2d at 29-30).

We now agree with all of the district courts and hold
After analyzing the appropriate procedure for pretrial

that the defendant bears the burden of proof, by a

claims of Stand Your Ground immunity, we concluded

preponderance of the evidence, to demonstrate

that the procedure set forth in Peterson "best

entitlement to Stand Your Ground immunity at the

effectuates the intent of the Legislature." Id. at 463.

pretrial evidentiary hearing. Numerous reasons

However, although this Court adopted the Peterson

support our conclusion.

procedure and quoted the Peterson court's discussion

of the burden of proof, an analysis of the burden of

First, in providing for the Stand Your Ground

proof was not an explicit part of our direct holding in

immunity, the Legislature did not confer upon every

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person in Florida blanket immunity from criminal

S.W.3d 740, 755 (Ky. 2009), the Supreme Court of

prosecution, but instead provided immunity only to

Kentucky explicitly rejected the defendant's argument

those whose use of force was justified, as specified

that he was entitled to a pretrial evidentiary hearing to

by statute. See 776.032, Fla. Stat. (providing that

determine his entitlement to immunity. Instead, the

the use of force is justified only when used as

Supreme Court of Kentucky held that the prosecution

permitted by sections 776.012, 776.013, or 776.031).

had to establish only that there was probable cause

Although the Legislature did not set forth a procedure

that the defendant's use of force was not legally

to test a defendant's claim of statutory immunity, the

justified. Id. at 754. This Court rejected this procedure

procedure this Court adopted in Dennis gave effect to

in Dennis as inconsistent with the legislative intent in

the Legislature's intent to provide an eligible

Florida to provide greater protection from prosecution

defendant with statutory protection extending beyond

to defendants who have used justifiable force. 51 So.

the ability to assert at trial the affirmative defense of

3d at 462.

self-defense. The resulting procedure allows a

defendant to establish, at a pretrial evidentiary

The Supreme Court of Kansas similarly concluded

hearing, that he or she acted in accordance with the

that the prosecution merely had to establish probable

statutory requirements and is thus entitled to the

cause that the defendant's use of force was unlawful,

immunity, in order to avoid criminal prosecution.

but declined to address whether the defendant was

entitled to a pretrial evidentiary hearing. See State v.

Second, as the State points out, no court in this

Ultreras, 295 P.3d 1020, 1031 (Kan. 2013). In

country has required, at a pretrial evidentiary hearing,

reaching its decision, the Supreme Court of Kansas

the prosecution to disprove beyond a reasonable

specifically distinguished the Kansas statute from the

doubt that the use of force by a defendant was

Florida statute and concluded that the Rodgers

justified. The highest courts in three states-Colorado,

rationale from Kentucky was more consistent with the

Georgia, and South Carolina-agree with a procedure

Kansas statute than the decisions from Florida and

similar to that described in Peterson, as approved by

Colorado. Id. at 1030-31. Because the Florida

Dennis. See State v. Duncan, 709 S.E.2d 662, 665

Legislature intended to foster more protection from

(S.C. 2011); Bunn v. State, 667 S.E.2d 605, 608 (Ga.

prosecution, Florida's statute is distinguishable, and

2008); People v. Guenther, 740 P.2d 971, 972 (Colo.

the decisions from Kansas and Kentucky therefore do

1987). These courts have adopted a procedure in

not support Bretherick's position.

which the defendant bears the burden of proof, by a

preponderance of the evidence at a pretrial

Third, placing the burden of proof on the defendant is

evidentiary hearing, in the context of their analogous

consistent with how other types of motions to dismiss

immunity laws.

are handled under Florida Rule of Criminal Procedure

3.190(b). Rule 3.190(b) sets out procedures for the

Bretherick's reliance on cases from Kentucky and

filing and consideration of a motion to dismiss in a

Kansas is misplaced because neither of those states

criminal proceeding. As then-Chief Judge Gross

has adopted a procedure in which the burden of proof

explained in his special concurrence in Govoni v.

is on the prosecution beyond a reasonable doubt at

State, 17 So. 3d 809 (Fla. 4th DCA 2009), quashed,

the pretrial stage. In Rodgers v. Commonwealth, 285

67 So. 3d 1048 (Fla. 2011), the procedure set forth in

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rule 3.190(b) is well-suited for motions to dismiss

disputed issues of fact when it says, "[t]he court

based on statutory immunity and is consistent with

may receive evidence on any issue of fact

jurisprudence that requires the defendant, who is

necessary to the decision on the motion."

seeking the immunity, to bear the burden of proof by a

. . . The first district held that "when immunity

preponderance of the evidence:

under this law is properly raised by a defendant,"

the trial court "may not deny a motion [to dismiss]

A motion to dismiss under rule 3.190(c)(4) is not

simply because factual disputes exist." Id. Faced

well-suited to resolve a claim of "true immunity"

with a factual conflict, a court must hold a hearing

from prosecution. In most cases, where a

to confront and weigh the factual disputes, so that

prosecutor has elected to file charges, there will

it can "determine whether the defendant has

be a factual dispute about whether section

shown by a preponderance of the evidence that

776.032 immunity applies. Rule 3.190(c)(4) is

the immunity attaches." Id. Peterson's procedure

structured to avoid a judge's resolution of factual

for a contested evidentiary hearing fits within the

disputes, leaving those matters to the finder of

framework of rule 3.190.

fact at a trial. A rule 3.190(c)(4) motion to dismiss

is similar to a motion for summary judgment in a

Holding a hearing on a section 776.032 immunity

civil case, and as such "[b]oth should be granted

claim is not a oddity in the criminal law. A court

sparingly." State v. Bonebright, 742 So. 2d 290,

performs a similar function when it resolves a claim

291 (Fla. 1st DCA 1998); see State v.

involving a different type of immunity under rule

Kalogeropolous, 758 So. 2d 110, 111 (Fla. 2000).

3.190(c)(3), a claim that prosecution is barred

Yet, forcing disputed immunity claims to trial

because the defendant has transactional immunity.

undercuts the concept of immunity adopted by the

See, e.g., State v. Toogood, 349 So. 2d 1203 (Fla. 2d

legislature.

DCA 1977) (involving statutory transactional immunity

under section 914.04, Florida Statutes (1975)). When

Rule 3.190 allows for contested hearings on

a defendant moves to dismiss under rule 3.190(c)(3),

motions to dismiss. The rule does not limit the

he must offer evidence to support his motion. See

grounds upon which a motion to dismiss may be

State v. Montgomery, 310 So. 2d 440 (Fla. 3d DCA

filed. . . . The rule uses the terms "defenses" and

1975). Also, courts resolve disputed fact issues when

"defense" broadly, so that it encompasses a claim

considering motions to suppress under subsections

to section 776.032 immunity. The four grounds

3.190(h) and (i). The existing rule can thus embrace

specified in rule 3.190(c)(1)-(4)-that the defendant

the procedure established by the first district in

has been pardoned, previously been placed in

Peterson.

jeopardy, previously been granted immunity, or

that the undisputed facts do not establish a prima

17 So. 3d at 810-11 (Gross, C.J., concurring

facie case of guilt-are not the exclusive grounds

specially) (alterations in original). As explained by

allowed under the rule. Rather, the rule states that

Judge Gross, the procedures for pretrial motions to

those four grounds "may at any time [be]

dismiss, based on this Court's precedent, all require

entertain[ed]" by the court. Rule 3.190(d)

the defendant to offer the evidence in support of the

expressly contemplates hearings to resolve

motion, rather than placing the burden on the State.

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resources. Undoubtedly, interests in practicality,
Fourth, to place the burden on the State to prove,

expense, and judicial economy do not outweigh the

beyond a reasonable doubt, that the defendant was

defendant's right to a fair determination of guilt or

not entitled to immunity would require the State to

innocence. See State v. Williams, 453 So. 2d 824,

establish the same degree of proof twice-once pretrial

825 (Fla. 1984). However, the defendant's opportunity

and again at trial. This would essentially result in two

for a fair determination of guilt or innocence is not

full-blown trials: one before the trial judge and then

diminished by placing upon him or her the burden of

another before the jury. Additionally, the pretrial

proof at the pretrial stage, as the State still has to

evidentiary issue focuses not on whether the

prove its case and all of the elements of the crime

defendant has committed the crime with which he or

beyond a reasonable doubt at trial.

she is charged, but rather on whether the defendant

was justified in "standing his or her ground." As the

Finally, we reject Bretherick's argument that the

Colorado Supreme Court has recognized, "the

standard for determining immunity for claims brought

accused presumably has a greater knowledge of the

under 42 U.S.C. 1983 should be applied in the

existence or nonexistence of the facts which would

context of immunity under the Stand Your Ground law.

call into play the protective shield of the statute and,

This argument lacks merit. Bretherick has not

under these circumstances, should be in a better

presented this Court with a single case in which the

position than the prosecution to establish the

standard for determining immunity from claims

existence of those statutory conditions which entitle

brought under 42 U.S.C. 1983 was applied in the

him to immunity." Guenther, 740 P.2d at 980.

context of a criminal defendant seeking immunity from

prosecution in state court.

Placing the pretrial burden on the State beyond a

reasonable doubt would provide no disincentive for a

The considerations involved in determining immunity

defendant to file a motion to dismiss in order to obtain

from suit in the context of 1983 for law enforcement

a complete preview of the State's entire case,

officials are different from those involved in evaluating

including its rebuttal of the defendant's potentially

claims of immunity from prosecution under the Stand

meritless argument-which may not be supported by

Your Ground law. The two statutes concern different

any evidence-that the use of force was justified. If, at

actors operating in completely different capacities and

the pretrial stage of litigation, the State did not

were enacted by different legislative bodies based

possess all the evidence to refute the alleged

upon vastly different policy rationales. See, e.g.,

justifications for a defendant's use of force, the

Wyatt v. Cole, 504 U.S. 158, 167 (1992) (noting that

defendant would be found immune from prosecution

"special policy concerns" mandating qualified

because the State could not disprove the justifications

immunity for government officials under 1983

for the use of force beyond a reasonable doubt. The

included the need to "preserve their ability to serve

State has aptly described the result: "a process

the public good or to ensure that talented candidates

fraught with potential for abuse."

were not deterred by the threat of damages suits from

entering public service"). Even in cases involving

Requiring the State to prove its case twice would also

1983 immunity, however, the individuals claiming

cause a tremendous expenditure of time and

immunity carry the initial burden of establishing that

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they were qualified for immunity at the time of the

We conclude that placing the burden of proof on the

incident. See, e.g., Gentile v. Bauder, 718 So. 2d 781,

defendant to establish entitlement to Stand Your

784 (Fla. 1998) (explaining that a government official

Ground immunity by a preponderance of the evidence

claiming qualified immunity has the initial burden of

at the pretrial evidentiary hearing, rather than on the

demonstrating that he was acting within his

State to prove beyond a reasonable doubt that the

discretionary authority before the burden shifts to the

defendant's use of force was not justified, is

plaintiff).

consistent with this Court's precedent and gives effect

to the legislative intent. While we recognize that the

In conclusion, although the Legislature has not

Stand Your Ground law is intended to be an immunity

explicitly stated which party should bear the burden of

from prosecution as opposed to just an affirmative

proof in establishing whether a defendant is entitled to

defense, the immunity is not a blanket immunity, but

immunity under the Stand Your Ground law, there is

rather, requires the establishment that the use of

nothing in the statutory scheme, in our prior

force was legally justified.

jurisprudence, or in jurisprudence throughout the

country that would dictate placing the burden at the

Accordingly, for the reasons we have explained, we

pretrial evidentiary hearing on the State to disprove

answer the certified question in the negative, approve

the claim of immunity beyond a reasonable doubt. Not

the decision of the Fifth District, and remand this case

only does the defendant have the opportunity to

for proceedings consistent with this opinion.[8]

challenge the initial probable cause determination for

the arrest, he or she has an additional opportunity to

It is so ordered.

avoid a trial altogether by proving entitlement to

immunity at the pretrial evidentiary hearing and, if the

LABARGA, C.J., and QUINCE and PERRY, JJ.,

immunity is denied, to challenge the trial court's denial

concur.

of the motion to dismiss via a petition for writ of

prohibition to the appellate court. These procedures

LEWIS, J., concurs in result.

are available to the defendant who is unsuccessful at

each stage of establishing immunity, before the trial

CANADY, J., dissents with an opinion, in which

has even begun. Then, if the motion to dismiss and

POLSTON, J., concurs.

the petition for writ of prohibition are denied, as in

Bretherick's case, the defendant has yet another

NOT FINAL UNTIL TIME EXPIRES TO FILE

opportunity to claim self-defense as an affirmative

REHEARING MOTION, AND IF FILED,

defense at trial. Thus, we effectuate the legislative

DETERMINED.

intent to provide this immunity to eligible defendants

while not unduly hampering the State's ability to

CANADY, J., dissenting.

prosecute violations of Florida's legislatively enacted

criminal law.[7]

I would answer the certified question in the

affirmative, quash the Fifth District's decision, and

CONCLUSION

disapprove the other decisions that have held that a

defendant has the burden of establishing entitlement

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to Stand Your Ground immunity in order to avoid trial.

acquittal at trial on the basis of a Stand Your Ground

Accordingly, I dissent.

defense. But the majority's decision here guarantees

that certain defendants who would be entitled to

As the majority recognizes, our core holding in Dennis

acquittal at trial will nonetheless be deprived of

v. State, 51 So. 3d 456, 458 (Fla. 2010), was that

immunity from trial.

"where a criminal defendant files a motion to dismiss

on the basis of section 776.032, the trial court should

The majority's argument that the burden should be

decide the factual question of the applicability of the

placed on the defendant because it is easier for a

statutory immunity." We reached this conclusion

defendant to prove entitlement to immunity than it is

because "the plain language of section 776.032

for the State to disprove entitlement to immunity has

grants defendants a substantive right to assert

no more force in the context of a pretrial evidentiary

immunity from prosecution and to avoid being

hearing than it does in the context of a trial, where it

subjected to a trial." Id. at 462.

admittedly has no application. That argument has no

basis in the text of the Stand Your Ground law.

The majority's decision here, however, fails to

Similarly, the majority's concern that placing the

recognize the essential nature of the factual question

burden of proof on the State in the pretrial evidentiary

that the trial court must decide. The factual question

hearing will potentially result in "two full-blown trials"-

raised by the assertion of Stand Your Ground

by no means a specious concern-cannot justify

immunity in a pretrial evidentiary hearing is the same

curtailing the immunity from trial under the Stand Your

as the factual question raised by a Stand Your

Ground law for those individuals whose use of force

Ground defense presented at trial: whether the

or threat of force is legally justified under the

evidence establishes beyond a reasonable doubt that

governing statutory standard. Practical problems

the defendant's conduct was not justified under the

raised by the Stand Your Ground law are a matter for

governing statutory standard. The State does not

the Legislature to consider and resolve.

dispute that a defendant presenting a Stand Your

Ground defense can only be convicted if the State

The State has conceded that if the certified question

proves beyond a reasonable doubt that the defense

is answered in the affirmative, this case should be

does not apply. See, e.g., Alexander v. State, 121 So.

remanded to the trial court for reconsideration in light

3d 1185, 1188 (Fla. 1st DCA 2013); Leasure v. State,

of the appropriate burden of proof. Having concluded

105 So. 3d 5, 13 (Fla. 2d DCA 2012); Montijo v. State,

that the certified question should be answered in the

61 So. 3d 424, 427 (Fla. 5th DCA 2011); see also Fla.

affirmative, I would therefore quash the decision on

Std. Jury Inst. (Crim.) 3.6(f)-(g). By imposing the

review and remand the case for reconsideration by

burden of proof on the defendant at the pretrial

the trial court.

evidentiary hearing, the majority substantially curtails

the benefit of the immunity from trial conferred by the

POLSTON, J., concurs.

Legislature under the Stand Your Ground law. There

is no reason to believe that the Legislature intended

Application for Review of the Decision of the District

for a defendant to be denied immunity and subjected

Court of Appeal - Certified Great Public Importance

to trial when that defendant would be entitled to

Fifth District - Case No. 5D12-3840

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(Osceola County)

Lesley Rickard McKinney of McKinney, Wilkes, &

Eric J. Friday of Fletcher & Phillips, Jacksonville,

Mee, PLLC, Jacksonville, Florida, for Amicus Curiae

Florida; and Dawn L. Drellos-Thompson, Naples,

Florida Carry, Inc.

Florida, for Petitioner

Arthur Ivan Jacobs of Jacobs Sholz & Associates,

Pamela Jo Bondi, Attorney General, Tallahassee,

LLC, Fernandina Beach, Florida, for Amicus Curiae

Florida; Wesley Harold Heidt, Bureau Chief, Criminal

the Florida Prosecuting Attorneys Association, Inc.

Appeals, and Kristen Lynn Davenport, Assistant

Attorney General, Daytona Beach, Florida, or
Respondent
John C. Frazer, National Rifle Association of America,
Fairfax, Virginia; and Jason Brent Gonzalez of Shutts
& Bowen LLP, Tallahassee, Florida, for Amicus Curiae
National Rifle Association of America

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INDIANA
Quarles v. State, 2015 Ind. App. Unpub. LEXIS 747 (IN Ct. App. 2015)
Key issues:
Self-defense, elements
Burden of production, on the defendant
Burden of persuasion, on the State, beyond a reasonable doubt
Innocence, first aggressor, mutual combat
Innocence, regaining innocence, withdrawal
Date:

July 7, 2015

Decision:
Case Summary

See Ex. 2 (surveillance footage from Camera 1).

Upon arrival, Debriel and Durone exited Danielle's car

Vincent D. Quarles Jr. was convicted of Class B

and walked toward the front entrance of the bar. Four

felony aggravated battery for shooting a victim in the

men, including Tyson Deckard, were standing outside

face during a group fight outside a bar in Kokomo,

the front entrance; Quarles was inside the bar. Tr. p.

Indiana. Quarles now appeals arguing that the State

236. As Debriel and Durone walked past the group,

failed to rebut his claim of self-defense. Although

Tyson came up from behind Durone and punched

Quarles was not a part of the original fight, he willingly

him, knocking him to the ground. Id. at 236-37; Ex. 2

became part of the fight when he retrieved a gun from

(2:45:55 a.m. on surveillance video). When Debriel

a parked car and followed the victim to his car and

went to help his cousin Durone, he became involved

shot him in the face. Because the evidence is

in the fight too. Tr. p. 193. Danielle got out of her car

sufficient to rebut Quarles' self-defense claim, we

to see what was going on. After realizing that Debriel

affirm.

and Durone were being jumped, she returned to her

car to get some five-pound hand weights in an

Facts and Procedural History

attempt to stop the fight and pulled her car near the
front entrance of the bar. Id. at 76. But the fighting

The facts most favorable to the verdict reveal that in

continued.

the early morning hours of July 6, 2012, Debriel

Scales, his cousin Durone Parker, and his sister

A few minutes later, a man in a blue-striped shirt--later

Danielle Scales left a strip club, and Danielle drove

identified as Quarles--exited the bar and walked

them to Rock Bottom Grill in Kokomo to continue

toward the fight. Id. at 239; Ex. 2 (2:49:38 on the

drinking. A surveillance camera at the front entrance

surveillance video). At this point, Debriel had just

of the bar captured most of the events that unfolded.

gotten in and out of Danielle's car.1 Tr. p. 239; Ex. 2
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(2:49:43-2:49:52 on surveillance video). When Debriel

any sufficiency-of-the-evidence claim. Wilson v. State,

approached the group, Quarles ran through the bar's

770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh

parking lot and across Plate Street to where his car

the evidence nor judge the credibility of witnesses. Id.

was parked. Tr. p. 239, 320. Quarles then ran back

If there is sufficient evidence of probative value to

across the street to the bar's parking lot. Id. at 240.

support the conclusion of the trier of fact, then the

When Quarles rejoined the group, he had a gun in his

verdict will not be disturbed. Id.

hand. Id.; Ex. 2 (2:51:26 on surveillance video); Ex.

16 (still shot taken from surveillance video showing

A valid claim of self-defense is legal justification for an

gun in Quarles' hand). As Debriel walked to Danielle's

otherwise criminal act. Coleman v. State, 946 N.E.2d

car, the group, including Quarles, closed in on him.

1160, 1165 (Ind. 2011). Indiana Code section

Multiple shots were fired; Debriel was shot in the face

35-41-3-2 provides:

but survived. Danielle saw Quarles shoot Debriel but

did not know his name at that time. Tr. p. 95. She later

(c) A person is justified in using reasonable force

identified Quarles as the shooter. Debriel, Durone,

against any other person to protect the person or a

and Danielle did not have guns on them, and no guns

third person from what the person reasonably

were found in Danielle's car or on the scene. Quarles

believes to be the imminent use of unlawful force.

later gave police the gun he used to shoot Debriel.

However, a person:

The State charged Quarles with Class A felony

(1) is justified in using deadly force; and

attempted murder and Class B felony aggravated

(2) does not have a duty to retreat; if the person

battery. Appellant's App. p. 12. Quarles argued self-

reasonably believes that that force is necessary to

defense at trial. Following a jury trial, the jury found

prevent serious bodily injury to the person or a

Quarles not guilty of attempted murder but guilty of

third person or the commission of a forcible felony.

aggravated battery. Id. at 126. The trial court

No person in this state shall be placed in legal

sentenced Quarles to fifteen years, with thirteen years

jeopardy of any kind whatsoever for protecting the

executed in the Indiana Department of Correction and

person or a third person by reasonable means

two years executed through Howard County

necessary.

Community Corrections for in-home detention. Id. at

132.

In order to prevail on a claim of self-defense, a

defendant must show: (1) he was in a place where he

Quarles now appeals his aggravated-battery

had a right to be; (2) he acted without fault; and (3) he

conviction.

had a reasonable fear of death or great bodily harm.

Coleman, 946 N.E.2d at 1165. Once a defendant

Discussion and Decision

claims self-defense, the State bears the burden of

disproving at least one of these elements beyond a

Quarles contends that the State failed to rebut his

reasonable doubt for the defendant's claim to fail.

claim of self-defense. The standard of review for a

Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). The

challenge to the sufficiency of evidence to rebut a

State may meet this burden by rebutting the defense

claim of self-defense is the same as the standard for

directly, by affirmatively showing the defendant did not

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act in self-defense, or by simply relying upon the

did not act without fault. The evidence shows that

sufficiency of its evidence in chief. Id. Whether the

Quarles was not involved in the initial fight. Instead,

State has met its burden is a question of fact for the

Quarles exited the bar while the fight was occurring

fact-finder. Id. Self-defense is generally unavailable to

and ran across the street to his parked car. When

a defendant who has entered into combat with

Quarles ran back across the street, he had a gun in

another person or is the initial aggressor, "unless the

his hand. As Debriel walked to Danielle's car, Quarles

person withdraws from the encounter and

approached the unarmed Debriel and shot him in the

communicates to the other person the intent to do so

face. Tr. p. 320. Because Quarles participated

and the other person nevertheless continues or

willingly in the violence, we conclude that the

threatens to continue unlawful action." See Ind. Code

evidence is sufficient to rebut his self-defense claim.

35-41-3-2(g)(3); see also Wooley v. State, 716 N.E.

2d 919, 926 (Ind. 1999) ("An 'initial aggressor' and

Affirmed.

those who 'enter into combat' (i.e., mutually willing

combatants) [must] declare an armistice before they
may claim self-defense."), reh'g denied.
We find that the State has negated at least one
element of Quarles' self-defense claim--that Quarles

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TEXAS
Bonner v. State, 2015 Tex. App. LEXIS 7013 (TX Ct. App. 2015)
Key issues:
Self-defense, elements
Burden of production, on the defendant d
Date:

July 9, 2015

Decision:
By one issue, appellant Dedrick Roy Bonner alleges

that followed were disputed by witnesses at trial, all

the trial court committed reversible error by not

concede that Dilworth and James were going to

including an instruction on self-defense in the jury

engage in a physical fight to resolve their differences.

charge. We affirm.
Bonner testified during the jury trial and stated that
I. Background

James ran out of his apartment at Dilworth, but then

turned and came at Bonner, clutching knives in both

Bonner and a co-defendant, Donnell Dilworth, were

hands. Bonner testified that he started

both charged by a shared indictment with two counts.

"backpedaling", fearing for his life, pulled the handgun

The first count was for the capital murder of Jerry

he carried out of his waistband, and shot at James.

Paul James, and the second count was for the

Bonner also testified he saw Stephany coming at him

aggravated assault of Allaceia Stephany. See Tex.

and shot in her direction.

Penal Code Ann. 19.03, 22.02. (West, Westlaw

through Chapter 46 2015 R.S.) Both co-defendants

Stephany disputed Bonner's testimony and said that

pleaded not guilty and were tried together in a

Dilworth and James were "squaring off" to fight when

consolidated trial before a jury.1

Bonner walked up and "just shot James in the head".

She stated she yelled at Bonner, and he turned,

The evidence showed that on April 24, 2012, Bonner

pointed the gun at her, and shot her in the leg.

and Dilworth visited James's apartment because,

according to Bonner, James had wanted to fight

At the conclusion of the trial, both Bonner and

Dilworth for calling him a "snitch." The men resolved

Dilworth requested a self-defense instruction in the

their differences and everyone left. However, Bonner

jury charge and filed their shared version of the

asserts that James later called him and told Dilworth

proposed instruction with the trial court. The State

and Bonner to return because he wanted to fight

objected to the proposed instruction arguing that both

Dilworth after all. Bonner and Dilworth returned and

defendants had committed actions that denied their

approached James's apartment. Although the events

right to raise a self-defense claim. The trial court
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agreed with the State and did not include a self-

Tex. Penal Code Ann. 9.31(a)(2),(3).

defense instruction in the jury charge. The jury found

Bonner guilty of capital murder and aggravated

(b) The use of force against another is not

assault. He was sentenced to life without parole and

justified:

thirty-five years imprisonment, respectively, in the

....

Texas Department of Criminal Justice--Institutional

(4) if the actor provoked the other's use or

Division. This appeal followed.

attempted use of unlawful force

....

II. Self Defense In The Jury Charge

or (5) if the actor sought an explanation from or

discussion with the other person concerning the

By his sole issue, Bonner alleges that the trial court

actor's differences with the other person while the

committed reversible error by not including his

actor was:

requested instruction on self-defense in the jury

(A) carrying a weapon in violation of Section

charge.

46.02; or
(B) possessing or transporting a weapon in violation

A. Standard of Review

of Section 46.05.

[...]

Tex. Penal Code Ann. 9.31(b)(4),(5)(A,B).

B. Applicable Law

"Reasonable belief" is defined as "a belief that would

be held by an ordinary and prudent man in the same

Self-defense is defined by the use of force.

circumstances as the actor." Tex. Penal Code Ann.

1.07(a)(42). In order to invoke the use of deadly force,

(a) A person is justified in using force against

Bonner must show he met the elements under 9.31

another when and to the degree the actor

in addition to the elements under 9.32. See Tex.

reasonably believes the force is immediately

Penal Code Ann. 9.31, 9.32. The elements of self-

necessary to protect the actor against the other's

defense involving the use of deadly force are:

use or attempted use of unlawful force. The actor's

belief that the force was immediately necessary as

(a) a person is justified in using deadly force

described by this subsection is presumed to be

against another: (1) if the actor would be justified

reasonable if the actor:

in using force against another under Section 9.31

....

and (2) when and to the degree the actor

(2) did not provoke the person against whom the

reasonably believes the deadly force is

force was used; and (3) was not otherwise

immediately necessary:

engaged in criminal activity, other than a Class C

(A) to protect the actor against the other's use or

misdemeanor that is a violation of a law or

attempted use of unlawful deadly force.

ordinance regulating traffic at the time the force

was used.

Tex. Penal Code Ann. 9.32(a)(1),(2)(A). However,

the belief that:

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(b) deadly force was immediately necessary as

Although there were factual disputes in the testimony

described by that subdivision is presumed to be

as to how the shooting occurred, Bonner himself

reasonable if the actor:

testified to facts that did not entitle him to a self-

....

defense instruction. Bonner testified that he and

(2) did not provoke the person against whom the

Dilworth went over the James's apartment to "resolve

force was used; and (3) was not otherwise

an issue" of Dilworth calling James a "snitch." Both

engaged in criminal activity, other than a Class C

defendants believed that James had spoken to the

misdemeanor that is a violation of a law. . . .

police regarding a robbery that occurred a short time

before this altercation. Bonner testified that Dilworth

Id. at (b)(2),(3).

and he were involved in that robbery and thought

James had "snitched" to the police. Bonner also

It is well settled that if the evidence raises the issue of

testified that he was in "a bad life" and always carried

self-defense, the accused is entitled to have it

a gun for his protection. He admitted he was affiliated

submitted to the jury. Dyson v. State, 672 S.W.2d 460,

with a gang, although he stated he was not a

463 (Tex. Crim. App. 1984) (en banc). However, even

member.

if the evidence viewed in the light most favorable to

the defendant raises a "prima-facie defense, no error

Even though Bonner initially claims the men resolved

is shown in the denial of a defensive instruction if the

their differences, Dilworth and Bonner returned to

evidence establishes as a matter of law that the

James's apartment again because James wanted to

defendant is not entitled to rely on this defense."

"fight it out". In other words, Bonner and Dilworth

Johnson v. State, 157 S.W.3d 48, 50 (Tex. Crim.

returned to James's apartment knowing that an

App.--Waco 2004, no pet.); see Dyson, 672 S.W.2d at

altercation would take place. A "defendant is not

463-65. A defendant is "not entitled to a self-defense

entitled to a self-defense instruction if the evidence

instruction if the evidence establishes as a matter of

establishes as a matter of law that one of the

law that one of the exceptions to self-defense listed in

exceptions to self-defense listed in section 9.31(b)

section 9.31(b) applies." Id.; see also Tex. Penal

applies." Johnson, 157 S.W.3d at 50; Williams v.

Code Ann. 9.31(b).

State, 35 S.W.3d 783, 786 (Tex. App.--Beaumont

2001, pet. ref'd); see also Tex. Penal Code Ann.

C. Analysis

9.31(b). And "force used in self-defense is not

justified...if the actor provoked the other's use or

Bonner argues that he was entitled to a self-defense

attempted use of unlawful force." Dyson, 672 S.W.2d

instruction in the jury charge, his attorney requested

at 463. By returning to James's apartment, Dilworth

one, and the trial court erred in denying the

and Bonner both provoked the victim's use of force,

instruction. The State challenges that assertion

thereby extinguishing any possible claim of self-

stating that Bonner was not entitled to a self-defense

defense. See id.

instruction based on the exceptions found in section

9.31(b) of the penal code. Id. We agree with the

Additionally, by going to the apartment, Dilworth and

State's assertions.

Bonner sought out the victim to discuss their

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differences while Bonner was carrying a handgun.

seeking out James, so the proper scenario that would

Under Section 9.31(b)(5)(A), the use of force or

have entitled Bonner to the instruction does not apply.

deadly force would not be justified. Tex. Penal Code

Ann. (5)(A). If the "evidence is undisputed that force

Even though Bonner's attorney requested a defensive

was not justified as a matter of law because of section

instruction on self-defense, the testimony from

9.31(b)(5), then a self-defense instruction is barred."

Bonner himself solidified the fact that he was not

Williams, 35 S.W.3d at 786. In contrast, if Bonner had

entitled to such instruction. See Tex. Penal Code Ann.

sought out another person to discuss a problem with,

9.31. The trial court did not abuse its discretion in

and gotten into an altercation with James, he could

refusing to include the proposed instruction in the jury

have been entitled to the self-defense instruction. In

charge. Because we do not find error, there is no

Johnson v. State, the court found the defendant was

need to further evaluate for harm. Almanza, 686

entitled to a self-defense instruction. Johnson, 157

S.W2d at 174.

S.W.3d at 51-52. Johnson had gone to his exgirlfriend's residence looking to speak with her, and

III. Conclusion

got into an altercation with her current boyfriend who

was residing there. Id. A scuffle ensued, and Johnson

We affirm the judgment of the trial court.

shot the boyfriend. Id. The Waco Court held that

because Johnson had gone to discuss an issue with a
person other than the victim, he was entitled to a selfdefense instruction in the jury charge. Id. Here,
Bonner testified that the men went to the apartment

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