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Law of Self Defense: When the 5th Amendment collides with the right of Self-Defense

Law of Self Defense: When the 5th Amendment collides with the right of Self-Defense

When Your 5th Amendment Rights Collide with Your Burden of Production

This case involves a recent Court of Appeals decision out of Texas —State v. Vasquez, 2018 Tex. App. LEXIS 9748 (TX Ct. App. 2018)—that illustrates how a refusal to take the witness stand can effectively strip you of the ability to argue self-defense to a jury.

Hopefully, we all know that we have the 5th Amendment right under the US Constitution to not be compelled to testify against ourselves and that being the case, no defendant can be compelled to take the witness stand against their wishes. Further, the defendant’s declining to take the witness stand and testify cannot be used against him by the jury in arriving at their verdict, and the jury will be so instructed.

Nevertheless, exercising this right under the US Constitution in a self-defense case can potentially result in the jury being denied the opportunity to actually consider the legal defense of self-defense as a potential basis for your acquittal.

Facts of the Case: State v. Vasquez

In this case we have a Defendant, Vasquez, who was angry about his ex-wife’s new boyfriend, Walker. Although the decision does not say so explicitly, it suggests that Walker may have been black, and that Vasquez may have held some racial animus towards him as a result.

There was evidence presented at trial that Walker was substantively displacing Vasquez not merely as the ex-wife’s love interest but also as the father figure to the six children Vasquez had with his ex-wife. There was also evidence that this displacement was driving Vasquez into a murderous rage.

The day of the killing Vasquez got into a verbal argument with his ex-wife, at her home and in front of their children, and started pushing her hard. Walker, who was living in the ex-wife’s home, told Vasquez to stop pushing the ex-wife.

In response Vasquez shouted racial slurs at Walker, and punched Walker in the arm and chest. Walker did not respond. Vasquez then punched Walker in the face, at which point Walker punched back, knocking Vasquez to the ground.

Vasquez then walked to his nearby vehicle, retrieved a handgun, and fired two shots into the air. Walker closed on Vasquez to try to disarm him, and the two men struggled over the gun. During this struggle several shots were fired, one of which struck and killed Walker.

Murder Trial & Verdict

Vasquez was tried on a charge of murder. At trial his attorney argued that Vasquez shot Walker in self-defense. Vasquez himself did not testify at trial. Although I have no knowledge of Vasquez criminal history, it is common for defendants with such a history to avoid taking the witness stand because doing so allows that history into evidence and before the jury.

At the close of trial Vasquez’ lawyer requested a jury instruction on self-defense, but the trial judge declined this request. The reason for declining the request was that there had been no evidence at trial that Vasquez’ possessed a fear of deadly force harm from Walker. Such a fear would be required in order to justify Vasquez use of deadly force as lawful self-defense, and so evidence of such a fear would be required before the jury could reasonably be instructed on self-defense as a path to acquittal.

This placed Vasquez in a conundrum. The simple fact was that the only source for such evidence of his reasonable fear of deadly force harm at the hands of Walker (if any such existed) was Vasquez himself. To get that source before the jury would mean taking the witness stand, and testifying to that fear. It would also mean subjecting himself to cross-examination and impeachment. So greatly did Vasquez not want to expose himself to cross and impeachment that he adamantly refused to testify.

Denied the self-defense jury instruction, Vasquez was convicted of murder by the jury and sentenced to 30 years.

Basis for Appeal

On appeal Vasquez argued that he had a 5th Amendment right under the US Constitution to not testify against himself, and that the trial judge violated this right by requiring his testimony as a condition to receiving the requested self-defense jury instruction.

Appellate Court Reasoning & Decision

The appellate court, however, disagreed. They reasoned that the trial court was not, in fact, compelling Vasquez to testify. Indeed, the trial court was explicit that the evidence of Vasquez state of mind could come from any source, and that it need not come from Vasquez own testimony. But from some source it must come, one way or another, or the result was zero evidence as to state of mind, and no legal argument—including self-defense—can be based on zero evidence.

The Court of Appeals concluded: “Because no evidence raised an inference that Vasquez reasonably believed that it was immediately necessary to shoot Walker to protect himself from deadly force, the trial court did not err in refusing to instruct the jury on self-defense,” and they affirmed his conviction and sentence.


Attorney Andrew F. Branca
Law of Self Defense LLC


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Doesn’t sound like a very good self defense case even if something had come into the record

    Gremlin1974 in reply to rduke007. | December 19, 2018 at 9:04 pm

    Well if you manage to escape and then go to your car get a gun and fire into the air, you are gonna have a hard time convincing anyone that self defense is based on reasonable fear. Especially after you have just been the aggressor in the previous conflict.

Snake Plissken | December 19, 2018 at 9:16 pm

Vasquez’ actions would seem to have him fail both the innocence and reasonableness elements of self defense. So the point is perhaps moot.

If you’re the type of person that gets into trouble with regularity, you may not be safe even in the case of legitimate self defense. The short characterization of Vasquez that we have been presented would lead any ordinary person to conclude that he acted irrationally. It really isn’t any wonder he was charged with murder.

Going and getting the gun instead of just leaving pretty much negates the self-defense angle anyway, no matter what happened after.

Several commenters have pointed out that on the facts presented it wouldn’t matter what his state of mind was, there was objectively no self-defense case to be made. I presume, therefore, that had he dared to testify he would have disputed some of the facts presented above, and given the jury different facts on which it could, if it believed them, find self-defense. But to consider these facts the jury must hear them from someone, and if the only person who could testify to them is the defendant, and he insists on not testifying, then what does he expect the jury to do? Guess them? Or does his lawyer seriously demand the right to argue to the jury facts that are not in evidence?

Sure wish that it was possible for retirees and elder folks to go to law school for some token cost. I’d love to learn the body of knowledge that law school offers and to become a part of the system just to be able to participate.

As to the case instant, when the defendant went to his car and retrieved a firearm, rather than driving away, the notion of self defense failed.

Getting killed by your own firearm has to be a disappointment.

Bad case on self defense but interesting issue on appeal.

Yeah….. LITERALLY nothing about this as presented supports self-defense.

Frankly just smells like the defense set this up on purpose to squawk about it on appeal and maybe get lucky.

Dude goes to his ex’s house, physically shoves her, apparently loses a fistfight with her new husband, goes and gets a gun, fires into the air (already a crime), and then shoots the guy when he tries to defend himself.

Scumbag with a scumbag lawyer.

    Don’t judge w/out the facts. Crazy exes will bait a dude into coming over when the new boyfriends is there and push all the right buttons to the point of even being the first to get physical just to see it go down.

    Until you’ve had a ticket on the crazy ex train, your not qualified to presume.

Walker closed on Vasquez to try to disarm him

This is the only thing even hinting at self defense. It would depend on exactly what happened during the “try to disarm” episode. The Appeals Court summary doesn’t help much—

According to Patricia, Walker, who did not have a gun, was “panicking.” He moved from Patricia’s car toward Vasquez “to try to get the gun.” The two men began “struggling with the gun.”

Even if he testified, Vasquez would have to have a pretty good story to build a case of defense on that. Maybe not impossible, though.

if he had a history- it wasn’t a felony since he was not charged with illegal possession.

The correct amount of time to spend at your ex’s place is zero, or even less if possible.

    You don’t know the facts. That is the point Branca is making. The two had children together and the wife may have a history of poor decisions with regard to the children’s safety. I’m as dubious of the “father figure” dude who is bumping uglies with a separated woman with a house full of kids as I am of the shooter.

    For all I know, one of the kids called dad saying the man was doing inappropriate things.

      Gremlin1974 in reply to Andy. | December 20, 2018 at 3:00 pm

      All of which would be completely irrelevant to the case at hand, even if those things had happened he left the scene (so even if he had been justified in using deadly force in the first confrontation him leaving ended that confrontation and therefore the threat), retrieved a firearm, illegally and stupidly endangered the public by discharging a firearm, he then used deadly force against non-deadly force and there is a name for that, it’s Murder.

    tom_swift in reply to MajorWood. | December 20, 2018 at 4:20 pm

    Hard for Vasquez to stay safely away if trying to cadge some cash from her. From the link—

    When Vasquez arrived at Patricia’s house the next morning, he asked her if she had any money.

    . . .

    Patricia went to Vasquez’s car, and Vasquez again asked her for money.

Humphrey's Executor | December 20, 2018 at 8:44 am

Thus in any shooting scenario the self defender may do well to tell the cops when they arrive: “I thought he was going to kill me. I’m too shook up to talk any more right now.”

IANAL, but I have intimate knowledge of how appeals court works, as someone who got reamed by our wonderful judicial system.

While waiting for my appeal, I spent a lot of time reading decisions of the appellate court to pick up a sense of how they decide cases, and I was disappointed to discover how they work.

In any non-political appeal that is made, you will set your expectations best if you assume at the outset that the appellate court will search deeply if not frantically to find some reason to uphold the trial judge. If there is the thinnest thread of reasoning that can be used to uphold the original verdict or orders, they will use it.

It is only in the most extreme of cases where the higher court will override the trial court. Such as in my case, where the trial judge committed 5 acts of pure prejudice against me, and the appeals court supported her in 4 of them. Unfortunately for them, the 5th act was so blatant and over-the-top (there was literally no evidence presented at trial to support her order, and the only testimony was in support of me) that they were forced to override her decision.

I’m lucky it was a civil case and I only lost $200,000 to a man-hating judge.

This does not detract from Andrew’s analysis of this particular case. I just wanted to point out that appellate courts view their mission to first and foremost support trial judges whenever possible.

Interesting legal question but a bad case to use.
Nothing presented here suggests self defense for anyone but the dead guy or the exwife.
Sounds more like a legal Hail Mary since all other evidence made this decision easy for the jury.

Just a couple of points, here.

First, the appeals court was apparently correct in their decision. In order for a defense of self defense to be considered, at trial, it has to be raised before the jury. This requires that evidence supporting a claim of self defense be presented before the trier of fact by witnesses. In this case, no witnesses were produced to support any claim of self defense on Vasquez’s part. So, the lack of a jury instruction on self defense was not a reversible error.

Second, according to the appellate decision, nothing within the facts presented at trial remotely supports a claim of self defense on the part of Vasquez. Vasquez established the reasonable belief the he intended to harm Walker by initially physically attacking him with his fists. When Walker repulsed that attack, Vasquez retreated and armed himself with a deadly weapon, a firearm, and discharged it twice “in the air”. Reasonably fearing that Vasquez would shoot him or one of the innocents present, Walker attempted to wrestle the firearm away from Vasquez. While doing so, the weapon discharged three times, with all three projectiles striking Walker. According to testimony, Vasquez suffered no significant injury or any injury which would lead a reasonable man to conclude that great bodily harm or death was likely, if he did not shoot Walker. No testimony was ever presented to suggest that Walker would have used the firearm against Vasquez, should he have obtained sole control of it. Remember, simple fear of death or great bodily harm is not sufficient to support a claim of self defense. Such a “fear” has to be reasonable. And, according to testimony, it appears that the firing of the gun was a conscious act on the part of Vasquez. So, in a nutshell, it would likely not have mattered if Vasquez had testified. The evidence overwhelmingly supported the decision that Vasquez was guilty of criminal homicide.

The first time I read it I missed the sub-heading “Facts of the Case: State v. Vasquez”. While reading the story, based on the headline, I expected to read that in the struggle for the gun Vasquez was killed and that Walker was on trial. Walker would have had a good self defense case!

If V. went to his car to retrieve a weapon, he could just as easily driven away thus eliminating the subsequent confrontation (and murder).
I have a problem why Texas hasn’t charged V.’s attorney with wasting the taxpayers’ money.

V’s attorney was most likely a Public Defender, appointed by the court. In many instances, PD’s have no substantive argument and wind up throwing something they hope will hit a wall and make a difference.
Another PD might have argued “Diminished Capacity”. It seems from the facts V may be suffering from full time diminished capacity.