Image 01 Image 03

New Trial for Man Who Video Recorded Own “Self-Defense” Shooting

New Trial for Man Who Video Recorded Own “Self-Defense” Shooting

A Texas Court of Appeals has ordered a new trial for a Houston man, Raul Rodriguez, convicted in 2012 of murder for the shooting death of a neighbor, Kelly Danaher, in 2010, on the grounds of defective jury instructions on self-defense, according to reports by ABC news and other news agencies.  (A full-length copy of this order is embedded at the bottom of this post.)

The first trial found Rodriguez guilty of murder, and resulted in him being sentenced to 40 years.

The facts of the case are somewhat ambiguous on detail, but in general they consist of an amalgam of a loud, drunken party, long-simmering neighborhood disputes, and incredibly poor judgment on the part of a retired fire-fighter in electing to exercise his concealed carry license by bringing his pistol to a confrontation.  A tragic outcome was entirely predictable.

A particularly remarkable part of this case is that Rodriguez himself recorded the events of the conflict in an almost 20-minute video.  A portion of the video recorded by Rodriguez is here.  Roughly 15 preceding minutes are missing from this version, but the relevant end-stages of the conflict are captured, and the video ends with the first gun shot.  Reportedly several shots were fired, including one which injured another party goer, in addition to the fatal round that struck Danaher.

To summarize: beginning in the early evening hours of May 1, 2010, retired fire fighter Raul Rodriguez grew increasingly angry with a loud party being held down the street by eventual victim Kelly Danaher, who was throwing a birthday party for his wife.

By the early morning hours of May 2, 2010, Rodriguez decided to strap on his pistol (which he was licensed to carry concealed), at least one spare magazine, and bring a flashlight and a means to video record to stand across the street from the party.  He then proceeded to simultaneously call 911, shine the flashlight repeatedly at the party, and record events.  Eventually he attracted the attention of the party goers, who came over to speak with him, and events proceeded rapidly downhill from there, culminating in Rodriguez shooting and killing Danaher.

From my perspective perhaps the most striking part of this encounter is how badly astray Rodriguez is led by his remarkably defective understanding of self-defense law.  His self-recording of his repetitive announcements of “I am in fear for my life” and “I’m standing my ground” suggests he feels the mere words alone bestow some magical legal protection or authority at best, or that he was attempting to fabricate a faux self-defense claim at worst.

That said, there was certainly sufficient evidence of self-defense to warrant a self-defense jury instruction in the case, given the very low burden of production needed.

But debating the detailed facts of the case can wait to another day (although feel free to debate in the comments). Here I’ll stick with the legal issues addressed by the Court of Appeals that led to their decision to grant Rodriguez a new trial.

Very Low Standard of Review on Jury Charge Issues

Rodriguez appealed his conviction on the grounds that the jury had been incorrectly instructed on Texas self-defense law.

It’s worth noting that under Texas law the standard of review of a claimed jury charge error is extremely low, if the issue has been preserved by timely objection at trial, as was the case here.  In effect, a preserved claim of jury charge error warrants a new trial if the error causes “any harm, regardless of degree.”

In other words, should the appellate court here agree that the jury charge was in error, and that the error had been preserved, the only way Rodriguez would not be awarded a new trial was if the error was found to be utterly harmless.

A Complex Interplay of Texas Self-Defense Law Statutes

Texas has a rich framework of self-defense statutory law that both defines the basic conditions under which force may be used in lawful self-defense as well as numerous circumstances in which one can nevertheless be denied that justification.  The interplay between these under the relatively complex facts of the Rodriguez case laid the foundation for the jury instruction error.

We can begin with Texas Penal Code §9.31(a), which provides in relevant part that:

Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.

Note the emphasis I’ve added to the start of that sentence, because sub-section (b) of that statute provides numerous exceptions to sub-section (a).

One of these, sub-section (b)(5)(A) provides that despite qualifying for the justification of self-defense under sub-section (a):

(b) The use of force against another is not justified:

(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or (emphasis added)

Texas Penal Code §46.02 deals with the unlawful carrying of weapons, and states in relevant part:

(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun . . .  (emphasis added)

So, §9.31(b)(5)(A) serves as an exception to §9.31(a), in that what would otherwise be a valid claim of self-defense justification under §9.31(a) can nevertheless collapse if the defendant falls within the exception of §9.31(b)(5)(A) of unlawfully carrying a weapon under §46.02(a).

Except, of course, there’s an exception to §46.02, which would otherwise trigger §9.31(b)(5)A) which itself is an exception to §9.31(a), and it’s found in Texas Penal Code §46.15, which provides in relevant part that:

(b) Section 46.02 does not apply to a person who:

(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun; (emphasis added)

Rodriguez did, in fact, possess the required license to carry a concealed handgun.

Except, of course, that there’s an exception to §46.15(b)(6), which is an exception to §46.02(a), which which would otherwise trigger §9.31(b)(5) (A), which is an exception to 9.31(a).  That newest exception is found in §46.035, which deals with the unlawful carrying of a handgun by a concealed carry license holder, and provides in relevant part:

(a) A license holder commits an offense if the license holder carries a handgun on or about the license holder’s person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place. (emphasis added)

Note that this “intentional display” language applies only up to the point where self-defense becomes warranted.  Once you otherwise meet the requirements of self-defense (innocence, imminence, proportionality, avoidance–but Texas is a “Stand-Your-Ground” state–and reasonableness), you may of course “intentionally display” the gun.  What is prohibited is the intentional display of the gun before the elements of self-defense have been established by the circumstances.

The “Cascade of Exceptions”

Still with me?

Let’s talk through it in English, working our way backwards.  I’ll refer to this as the “cascade of exceptions:”

 If, hypothetically speaking, the jury came to believe that Rodriguez was intentionally displaying his handgun in plain view of another person in a public place [§46.35(a)] before the elements of self-defense had been established, then despite his having a concealed carry license [§46.15(b)(6)] he would nevertheless be unlawfully carrying a weapon if he did so while seeking an explanation from the other party [$46.02(a)] , and thus he would trigger one of the exceptions [§9.31(b)(5)(A)] to Texas’ self-defense justification law [§9.31(a)] and as a matter of law could not have been acting in self-defense.

To put it more succinctly, if the jury believed that Rodriguez failed to conceal his gun as required by law, then on these facts they would necessarily conclude that Rodriguez must lose his claim of self-defense as a matter of law.

The Challenged Jury Instructions

Now let’s take a look at the portion of the jury instruction that was found to be in error:

You are further instructed, as part of the law of this case, and as a qualification of the law on self-defense, that the use of force by a defendant against another is not justified if the defendant sought an explanation from or discussion with the other person concerning the defendant’s differences with the other person while the defendant was failing to conceal the handgun that he was carrying as a concealed handgun license holder, in violation of the law.

A person commits an offense if, while the person was a holder of a license to carry a concealed handgun, the person intentionally failed to conceal the handgun.

A person commits an offense if, while the person was a holder of a license to carry a concealed handgun, the person carried a handgun and was intoxicated.

If you find from the evidence beyond a reasonable doubt that the defendant, Raul Rodriguez, did then and there on May 2nd, 2010, fail to conceal a handgun in violation of the law stated above, before seeking an explanation from or discussion with the other person concerning the defendant’s differences with the other person, then you will find against the defendant on the issue of self-defense. (emphasis added throughout)

It’s that single word, “before,” in the final paragraph that the Court of Appeals determined required that Rodriguez be granted a new trial.

There was some dispute on the facts as to whether Rodriguez kept his pistol concealed prior to the point at which a reasonable argument could be made that the elements of self-defense had been established, but the greater weight of the evidence seems to suggest he had, so let’s assume that while he was engaged in his confrontation (and prior to self-defense being established), he kept his pistol concealed.

If the jury believes this to be true, then the chain of exceptions ought not to be triggered, and Rodriguez is free to argue self-defense.

The Open Carry Visit to Neighbor Fornol

There are, however, some additional facts that the Court of Appeals believed could have led the jury astray, given the use of that “before” in the jury instruction.

At around 8:30PM on May 1, 2010, many hours before the confrontation between Rodriguez and the party goers and the firing of the  fatal shot, Rodriguez visited his neighbor, Fornols, to gripe about noise from the party.  Fornol would testify in court that during that visit Rodriguez was wearing two pistols, both being worn in plain sight over a tucked-in t-shirt.

Potential that “Before” Misled Jury

The Court of Appeals unanimously concluded that applying those facts to the final paragraph of the jury instruction could have led the jury to conclude that Rodriguez did in fact “fail to conceal a handgun in violation of the law stated above, before seeking an explanation from or discussion with the other person . . . ”

After all, the open carry of the pistols at Fornol’s house did, indeed, occur “before” Rodriguez sought his explanation from party goers.

In coming to this conclusion they emphasized the consistent, and correct, use of the word “while” in the preceding paragraphs of the jury instruction, in contrast to the use of the word “before” in that final paragraph.

Error Found, but Was It Harmless?

Having thus found error, the next question for the Court of Appeals was whether the error could be said to be completely harmless.  If not, a new trial was required as a matter of Texas law.

Given that Rodriguez entire defense was based upon the justification of self-defense, and that self-defense might have been mistakenly thought by the jury to have been lost as a matter of law based upon Rodriguez’s open carry of his pistols at Fornol’s house, the Court of Appeals was obliged to “conclude that conviction was not a foregone conclusion absent the charge error, and that this factor supports reversal.”

And thus Rodriguez won himself a new trial.

A Substantive Assessment of Rodriguez’s Self-Defense Claim?

In addition, in contemplating Rodriguez’s retrial, it might be an interesting thought experiment to consider how robust (or not) his claim of self-defense will be even with proper jury instructions. This appellate decision does not really examine the strength of his self-defense claim at all, but only examines whether he might have unfairly been denied self-defense as a matter of law.

At re-trial, however, the new court and jury will be tasked with making a substantive assessment of Rodriguez’s claim of self-defense.

Recall that there are five elements to the law of self-defense:


Considering Rodriguez’s self-defense claim in the context of those five elements would seem to place him on pretty solid ground for three, but on very shaky ground indeed on the remaining two.

I leave the details of that analysis as an exercise for the class.

Many Other Interesting Issues in the Decision

I’ve limited myself here to the core issue of the ruling, but the Court of Appeals decision also touches upon a variety of other interesting self-defense law issues.  It is thus worth reading in its entirety.  So, here you go:

–-Andrew, @LawSelfDefense

NEW! The Law of Self Defense proudly announces the launch of it’s online, on-demand state-specific Law of Self Defense Webinars.  These are interactive, online versions of the authoritative 5-hour-long state-specific Law of Self Defense Seminars that we give all over the country, but from the convenience of your laptop, tablet, or smartphone, and on your own schedule.  Click over for more information on our state-specific Law of Self Defense Webinars, and get access to the ~30 minute Section 1. Introduction for free.

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.


Donations tax deductible
to the full extent allowed by law.


Hey Andrew,

You have a couple of “Florida”s mixed into the text (I assume you mean Texas).

Separately, I just received your “Law of Self Defense” through Amazon. Chapter 10 is outstanding. I will read the rest in the future.


Where your rights under the law go beyond common sense, default to common sense. Where common sense goes beyond the law, default to the law.

Never go looking for an opportunity to defend yourself.

    “Never go looking for an opportunity to defend yourself.”

    Indeed. ++. Look instead for opportunities to AVOID having too.

    If you shoot someone, you are at the mercy of lawyers. Right or wrong can have very little to do with it.

Well, I learned something. I always thought a concealed carry license allowed a person to carry a handgun open or concealed. I never knew one was *required* to conceal the weapon.

If I were really in fear for my life, the last thing I would think to do is to say, “I’m in fear for my life!”

Oy. For a State with such a reputation as a self-defense Paradise, they *really* need to straighten out their laws…

Andrew, I was on the jury for this case and thus interested in its appeal. While all came to the same verdict the reasoning varied greatly from one to another. I can say of those that articulated their reasoning none mentioned that they thought since Rodriguez did not conceal his weapons earlier that day at a neighbors house nullified a self defense claim. It will be interesting to see the outcome of a retrial.

    Hey Jourist,

    No kidding, you were on the jury? Fascinating.

    The issue with the Court of Appeals isn’t that they really believe the erroneous instruction DID prejudice Rodriguez, but the mere thought that it COULD have is enough to entitle him to a new trial.

    Frankly I see the major weaknesses in his claim of self-defense to be on the elements of innocence (he went to them, they didn’t come to him) and reasonableness (a reasonable person in GENUINE fear of death or grave bodily harm doesn’t spend many minutes video recording repetitive statements to that effect when they can simply remove themselves to safety a few steps away).

    Of course, I didn’t watch the trial evidence, as you did as a juror, but I’ve seen reports of numerous witnesses testifying that Rodriguez was widely perceived as a neighborhood bully, and somewhat eager to put his (badly mistaken) knowledge of self-defense law to a practical test.

    As I said in respect to the Kaarma trial, if you CREATE the circumstances in which you need to act in self-defense, it’s NOT self-defense. Genuine self-defense is borne of necessity imposed upon you.

    –Andrew, @LawSelfDefense

      As I said in respect to the Kaarma trial, if you CREATE the circumstances in which you need to act in self-defense, it’s NOT self-defense. Genuine self-defense is borne of necessity imposed upon you.

      That strikes me as an incredibly vague and subjective standard. Did Rodriguez “create” the circumstances by telling his drunk, belligerent neighbors to turn down the music? Or was it when, faced with mounting aggression, he refused to yield his ground and retreat from the public sidewalk on which he was standing? Isn’t it just as reasonable to think that by blaring music all night it’s actually the neighbors who created the circumstances that lead to the confrontation?

      This line of reasoning implies that one must never confront anyone for any reason while carrying a lawful concealed weapon so long as there is the slightest chance that the person being confronted could become angry and assault the person doing the confronting. If such an assault occurs, I guess the person doing the confronting just has to take the beating, since, after all, he “created” the circumstances leading to his beating.

      If I were sitting in judgment of this case I would ignore the subjective “who created the circumstances” guideline and focus on the end of the video when it appears as if one of the neighbors physically attacked Rodriguez.

        Jourist in reply to Goose. | December 20, 2014 at 1:04 pm

        One thing to keep in mind is that the video posted is not the full video presented in trial. Some of the jury focused on that he walked next door shined his flashlight at the house and “shook” it back in forth in a manner construed as wanting to call someone over to him. When the he was approached he pulled his weapon un-provoked and that a reasonable person would not signal someone to come talk and then claim to feel threatened when they walked up.

        FALSE: “Now that I carry a gun, I don’t have to take shit from ANYBODY.”

        TRUE: “Now that I carry a gun, I have to take shit from EVERYBODY.”

        Except the felony aggressor. HIM you can defend yourself against. 🙂

        But, hey, it’s OK with me if folks make the former, rather than the latter, choice.

        It’s not my job to tell people what choices to make, but merely to inform them of the likely legal consequences of those choices.

        Plus, folks making the former choice is how I buy myself motorcycles and stuff. 🙂

        –Andrew, @LawSelfDefense

This is a good example of Lysander Spooner’s “laws that never ought to be known”; they are so convoluted, complex, and not just hard to understand but easily misunderstood, that no person of normal intelligence and common sense could possibly be expected to understand them even if they are “known” in the sense of having been read (i.e., knowing that the laws exist). The idea that a citizen can be held to a standard that is essentially unknowable for its complexity, and that said citizen is expected to apply a correct (and not merely “any”) understanding of the law during a stressful, possibly life-threatening situation is both outrageous and ridiculous. Technically, the law is not “vague,” but in practice its technical exactitude is no better, and in fact is probably worse in some respects because it appears to some (prosecutors and judges) to be understandable so that they may be inclined to enforce it, when in fact it only yields to a rigorous analysis that most citizens have neither the time, ability, nor inclination to make for themselves, and which neither any prosecutor nor judge would be capable of applying correctly under circumstances that these laws address. The people should be able rely on their legislators to make clear, understandable, and easily obeyed statutes, and these are very clearly not of that sort.

Anyone else wonder why Rodriguez isn’t called a “white Hispanic”?