Texas Self-Defense Law: First Aggressor Evidence

bar fightThe other way to get a victims prior violent acts into evidence is through the First Aggressor theory. This scenario occurs when the defendant does not know the victim prior to their encounter. As often happens in a barroom fight or at a traffic altercation the defendant and victim have never met before. The fact that the defendant does not have  personal knowledge of violent acts of the victim does not prevent these acts from being introduced into evidence. Under the First Aggressor theory the previous violent acts of the victim can be admissible under the argument that evidence of the victim’s prior violent acts make it more likely that the victim was the first aggressor in the conflict. The case Tate v. State 981 S.W.2d 189 covers this area of the law. The First Aggressor theory also works when the defendant does know the victim but did not have personal knowledge of all his previous violent acts.

Before this type of evidence can be admitted their has to be some testimony  of an act of aggression by the victim. What type of aggression is important because some lower appellate courts have placed limitations on admitting previous violent acts of the victim. In the case of Reyna v. State 99 S.W.3d 344 (Tex App-Ft Worth 2003) the court held that previous violent acts of the victim are not admissible if in the testimony of the case being tried the facts showed the victims acts were patently aggressive as opposed to ambiguously aggressive. For example if the defendant had testified that the victim had pulled a gun out and shot at him then any prior violent acts of the victim are not admissible because the act of pulling a gun out and shooting is patently aggressive, and there is no need for a jury to hear further evidence on who is the first aggressor. If the defendant had testified that he thought the victim was about to pull out a gun because the victim was appeared to be reaching in his pocket then the prior violent acts are more likely to come into evidence because the victims act falls more on the ambiguous side. Only lawyers could think this stuff up.

The ruling in the Reyna case doesn’t really make a lot of sense when one thinks about it. The logic of admitting previous bad acts of the victim is to show the victim was the first aggressor and to give credibility to the defendant’s testimony. If the testimony at trial could be considered patently aggressive you can bet the prosecutor will cite the Reyna case to try and convince the judge to keep the prior violent acts of the victim out. Of course in front of the jury that same prosecutor will never agree that the victim was the first aggressor, and they will certainly argue to the jury that they should not believe the defendant’s story about who was the aggressor. Under this logic the prosecutor gets his cake and eats it too. If a criminal lawyer finds himself in this situation perhaps he should ask for a stipulation from the prosecutor and try to get them to agree that the victim was the first aggressor. I doubt the prosecutor would agree and if the prosecutor refuses to do so you can argue that would is further reason for the judge to admit the prior bad acts against the victim.

The criminal attorney must also be aware that if she introduces prior violent acts of the victim to prove who the first aggressor was then the door is open for the prosecution to then introduce prior violent acts of the defendant to rebut the evidence.

If you can overcome objections from the prosecution prior violent acts by the victim works very favourably for the defendant. This type of evidence often destroys any sympathy the jury would have had for the victim and increases the burden of proof for the prosecution. This type of evidence also makes the defendant’s story more credible and increases the chance of a Not Guilty verdict.

For further reading on the First Aggressor theory you should read Fort Bend criminal attorney John Venza’s article on the subject which he has posted on his web site. The article cites many of the relevant cases which come into play in these scenarios.



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