There has been some discussion in this case about whether the jury's finding that Lebo caused serious bodily injury cured any error in the charge as submitted. This logic puts the cart before the horse. A jury may reach a certain finding based on erroneous jury instructions that it would not have reached if it had been correctly instructed. In other words, bad instructions can lead to bad answers. Although I concur in the majority's opinion, I write separately to explain the reason that only the section 9.42 justification was required to be given in this case even though the evidence, viewed in isolation, would have required the submission of both justifications. I do not believe the majority's opinion should be relied on to support any argument that we can justify a charge based on the answers reached by the jury. A jury charge is generally guided by the evidence presented and only rarely will the question that must be submitted based on the offense as indicted require a charge that is different than the charge that would have been submitted considering the evidence alone.
"A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense." Ferrel v. State,55 S.W.2d 586, 591 (Tex.Crim.App. 2001). "On the other hand, if the evidence, viewed in the light most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an instruction on the issue." Id.
In Ferrel, the Texas Court of Criminal Appeals noted that it was required to decide whether there was evidence that Ferrel did not use deadly force. See id. The court stated, "For there to be evidence that Ferrel did not use deadly force, there must have been evidence that the beer bottle was not capable of causing death or serious bodily injury in the manner of its use or intended use." Id at 592. The court criticized the court of appeals' "faulty assumption that there was evidence that the beer bottle did not cause serious bodily injury and that, in the manner in which the bottle was used, it was incapable of causing serious bodily injury." Id. Ferrel hit the victim on the head with a beer bottle, causing him to fall back, hit his head on the ground and die. See id. at 590. The court appears to have held that the victim suffered serious bodily injury as a matter of law. See id. at 591.
In this case, the victim did not die, and viewing the evidence in the light most favorable to Lebo, a fact issue was raised regarding whether the victim's injuries were serious bodily injuries. In deciding which jury instructions to submit, the trial court was required to consider the evidence as it was presented before submission to the jury. The trial court could not assume that the jury would answer the serious bodily injury question in the affirmative. Viewing the evidence in the light most favorable to Lebo, there is evidence that Lebo did not use deadly force, and the jury could have answered the serious bodily injury question in the negative. Therefore, based on the evidence alone, the trial court would have been required to submit both justification instructions on force and deadly force in the alternative.
This case, however, presents a unique situation. The charge in this case must be guided by the offense as it was alleged in the indictment. Although the Penal Code would have permitted Lebo to be convicted of the offense of injury to an elderly individual if he had caused only bodily injury, the indictment required the State to prove *Page 424 serious bodily injury in order for Lebo to have been found guilty. Therefore, viewed from an evidentiary standpoint, both instructions would be required to be given; however, because the indictment required the State to prove serious bodily injury, which by Penal Code definition involved the use of deadly force, only the section 9.42 justification was required.