Pena, Pedro Pablo Jr.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0155-21

PEDRO PABLO PENA, JR., Appellant

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY

W ALKER, J., filed a dissenting opinion.

DISSENTING OPINION

Pedro Pablo Pena, Jr., Appellant, was charged with two counts of aggravated assault

committed against James Hernandez and Cody Hightower, respectively. Although the jury charge

included instructions on self-defense, during the charge conference Appellant objected to the lack of

jury instructions on multiple assailants. The trial court overruled Appellant’s objection, and the court

of appeals affirmed, believing that the self-defense charge’s use of “JAMES HERNANDEZ and/or

CODY HIGHTOWER” was sufficient to cover multiple assailants.

Simply saying “James Hernandez and/or Cody Hightower” in the self-defense instruction does
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not accurately state the law of multiple assailants. The law of multiple assailants allows use of force

against a person not himself using force, so long as that person was party to the assault by

encouraging, aiding, or advising those who were using force. The regular self-defense instructions

did not tell the jury that Appellant could use force against Hernandez where Hightower was using

unlawful force and Hernandez was not, so long as Hernandez was encouraging, aiding, or advising

Hightower. The self-defense instructions, using “and/or”, would allow use of force against Hernandez

even if Hernandez was not even involved.

The court of appeals had it wrong, and I would grant the petition. I respectfully dissent to the

Court’s decision to refuse review.

I — Multiple Assailants

Just last year in Jordan v. State, we reiterated the law of self-defense against multiple

assailants:

When the evidence viewed from the defendant’s standpoint shows an attack or
threatened attack by more than one assailant, the defendant is entitled to a multiple
assailants instruction. Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985).
The issue may be raised even as to those who are not themselves aggressors as long
as they seem to be in any way encouraging, aiding, or advising the aggressor. Black
v. State, 65 Tex. Crim. 336, 145 S.W. 944, 947 (Tex. Crim. App. 1912); see also
Petty v. State, 126 Tex. Crim. 185, 70 S.W.2d 718, 719 (Tex. Crim. App. 1934)
(evidence viewed from defendant’s standpoint showed danger of attack or threatened
attack by more than one assailant, and the jury should have been instructed that he
had the right to defend against either or all of them); Cartwright v. State, 16 Tex. Ct.
App. 473, 487–88 (1884) (error for the jury charge to restrict self-defense to the
victim when evidence showed that two others appeared to be acting with the victim).

In Sanders v. State, 632 S.W.2d 346 (Tex. Crim. App. 1982), Sanders was hit in the
head with a pool cue and chased into the parking lot by several men who were yelling
racial epithets at him. He fired three shots in their direction, killing one of them. Id.
at 346. Sanders was entitled to a multiple assailants instruction even though the
deceased had not personally attacked him. Id. at 348. Thus, “multiple assailants” does
not require evidence that each person defended against was an aggressor in his own
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right; it requires evidence that the defendant had a reasonable fear of serious bodily
injury from a group of people acting together.

Jordan v. State, 593 S.W.3d 340, 343–44 (Tex. Crim. App. 2020).

Here, there was no dispute that multiple assailants was an issue for the jury to resolve, and

there is no question that multiple assailants instructions were not given to the jury. The issue is

whether the regular self-defense instruction was also effectively a multiple assailants instruction

through its use of “JAMES HERNANDEZ and/or CODY HIGHTOWER”.

II — The Self-Defense Instruction . . .

The instructions given to the jury in Appellant’s case stated:

SELF DEFENSE AS TO COUNT I

The following instructions regarding self-defense apply only to Count I and
do not apply to Count II.1

If you all agree the State has proved, beyond a reasonable doubt, each of the
elements listed in Counts I of the indictment, you must next consider whether the
defendant’s use of force was made in self-defense.

A person’s use of deadly force against another that would otherwise constitute
the crime of Aggravated Assault is not a criminal offense if he reasonably believed the
force used was immediately necessary to protect himself or another person against the
other’s use or attempted use of unlawful deadly force.

A person commits murder if he intentionally or knowingly causes the death of
another person.

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Count I charged Appellant with aggravated assault by causing bodily injury to Hernandez
with a deadly weapon. Count II charged Appellant with aggravated assault by threatening Hightower
with a deadly weapon.
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PRESUMPTION

Under certain circumstances, the law creates a presumption that the
defendant’s belief- that the deadly force he used was immediately necessary- was
reasonable. A presumption is a conclusion the law requires you to reach if certain
other facts exist.

Therefore, you must find the defendant’s belief- that the deadly force he used
was immediately necessary- was reasonable unless you find the State has proved,
beyond a reasonable doubt, that the defendant neither knew nor had reason to believe
that JAMES HERNANDEZ and/or CODY HIGHTOWER were committing or
attempting to commit murder.

With regard to the presumption of the necessity of deadly force, you are
further instructed that the presumption applies unless the State proves beyond a
reasonable doubt that the facts giving rise to the presumption do not exist. If the State
fails to prove beyond a reasonable doubt the facts giving rise to the presumption do
not exist, the jury must find that the presumed fact exists, even though the jury may
find that the presumed fact does not exist, the State must prove beyond a reasonable
doubt each of the elements of the offense charged: and if the jury has a reasonable
doubt as to whether the presumed fact exists, the presumption applies and the jury
must consider the presumed fact to exist.

A person who has a right to be present at the location where the deadly force
is used, who has not provoked the person against whom the deadly force is used, and
who is not engaged in criminal activity at the time the deadly force is used is not
required to retreat before using deadly force. You are not to consider whether the
defendant failed to retreat.

You have heard evidence that when the Defendant used deadly force against
JAMES HERNANDEZ and/ or CODY HIGHTOWER he reasonably believed his use
of deadly force was necessary to defend himself and/or Lazaro Pena, the Defendant’s
brother, from being murdered by James Hernandez and/ or Cody Hightower.

...

If you have found that the State has proved the offense beyond a reasonable
doubt, you must next decide whether the State has proved that the Defendant’s
conduct was not justified by self-defense.

To decide the issue of self-defense, you must determine whether the State has
proved, beyond a reasonable doubt, one of the following:
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1. The Defendant did not believe his conduct was immediately necessary to
protect himself and/or Lazaro Pena against JAMES HERNANDEZ and/or CODY
HIGHTOWER’s use or attempted use of unlawful deadly force; or to prevent JAMES
HERNANDEZ and/or CODY HIGHTOWER’s imminent commission or attempted
commission of murder.

2. The Defendant’s belief was not reasonable.

You must all agree that the State has proved, beyond a reasonable doubt,
either element 1 or 2 listed above. You need not agree on which of these elements the
State has proven.

If you find that the State has failed to prove, beyond a reasonable doubt, either
element 1 or 2 listed above, you must find the Defendant “not guilty”.

If you all agree the State has proved, beyond a reasonable doubt, each of the
elements of the offense of Aggravated Assault, and you all agree the State has proved,
beyond a reasonable doubt, either element 1 or 2 listed above, you must find the
Defendant “guilty.”2

III — . . . Does Not Correctly State Multiple Assailants Law

As discussed above, in a multiple assailants situation, a defendant may use force against any

member of the group of assailants, even if that member was not himself using any force but was only

encouraging, aiding, or advising those who were using force. Jordan, 593 S.W.3d at 343.

Accordingly, to be correct, the instructions should have told the jury that it must acquit if it

found Appellant used force against Hernandez, even though Hernandez was not himself using

unlawful force, so long as Hernandez was encouraging, aiding, or advising Hightower.

Although the self-defense charge as given does raise the idea of multiple assailants, the charge

does not tell the jury anything about encouraging, aiding, or advising. Instead, the instruction’s use

of “and/or” in what is otherwise a regular self-defense instruction can lead to the opposite. It is

entirely possible, from the instructions given, for the jury to conclude that Appellant committed

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Clerk’s R. 98–101.
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aggravated assault against Hernandez, that he also believed the aggravated assault against Hernandez

was immediately necessary to protect against Hightower’s use or attempted use of unlawful force,

and that this belief was reasonable. As quoted above, the instructions required the jury to find

Appellant’s belief to be reasonable if the State failed to disprove that he knew nor had reason to

believe that Hernandez, Hightower, or both were committing or attempting to commit murder. The

belief could be based upon Hightower alone.

If the jury found that Appellant committed aggravated assault against Hernandez but believed

that the assault was immediately necessary to protect against Hightower’s use or attempted use of

unlawful force, the instructions tell the jury to find Appellant “not guilty.” The instructions contain

no requirement that Hernandez and Hightower were acting together and that, when Appellant used

force against Hernandez, that Hernandez was encouraging, aiding, or advising Hightower’s use or

attempted use of unlawful force. The instructions given would require the jury to acquit if it found

that Appellant committed aggravated assault against Hernandez, based on his beliefs about Hightower

and Hightower alone. This completely misses the point of multiple assailants, and would allow force

against a complete bystander.3

III — Conclusion

The self-defense instruction did not accurately state the law as to multiple assailants. The use

of “and/or” in a regular self-defense instruction does not tell the jury that a defendant may use force

against a member of a group of assailants, even if that member was not any force at all, so long as he

was encouraging, aiding, or advising other who were. Instead, it has the perverse potential to allow

force against someone who is not a member of the group of assailants at all. The court of appeals

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It would also seem to completely miss the point of self-defense.
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should have caught this but failed do so. Review is warranted, and I respectfully dissent to the

Court’s decision to refuse Appellant’s petition.

Filed: June 30, 2021
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