Shaw v. State

The majority opinion on rehearing continues to apply an incorrect “rational-juror” test to the evidence to determine if an accused has the right to a defensive instruction. Moreover, in its discussion of the evidence, the opinion on rehearing fails to apply the correct standard of review. As the original majority opinion notes, the evidence should be viewed in the light most favorable to the defendant. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001); Johnson v. State, 157 S.W.3d 48, 50-52 (Tex.App.-Waco 2004, no pet.) (reversing and remanding case because self-defense was raised…