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Porteous v. State

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OPINION

A jury convicted appellant of attempted capital murder of a police officer. We granted discretionary review to address the decision of the court of appeals that appellant was not entitled to a self-defense instruction on this offense.*fn1 The ground upon which we granted discretionary review states:

The Court of Appeals erred in holding that Penal Code Sec. 9.31(b)(2), limiting the right to use force “to resist an arrest … the actor knows is being made by a peace officer” disentitled appellant to the justification of self defense, because the evidence raised the possibility that appellant did not know an arrest was being made, that even if the jury believed he knew the person suddenly advancing on him with a gun was a peace officer, what appellant perceived in the circumstances was not an arrest (lawful or unlawful) but an attack.

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