Chapter 9
Justification Defenses
9.13 Nondeadly Force in Self-Defense with “Provoking the Difficulty” Issue
No Self-Defense Instruction If “Provoking the Difficulty” Established as Matter of Law. Generally, “the defendant is not entitled to a self-defense instruction if the evidence establishes as a matter of law that one of the exceptions to self-defense listed in section 9.31(b) applies.” Johnson v. State, 157 S.W.3d 48, 50 (Tex. App.—Waco 2004, no pet.).
Therefore, no jury instruction on self-defense should be given at all if a reasonable jury could find only that the evidence proves, beyond a reasonable doubt, facts that would make self-defense inapplicable. For example, a jury instruction was properly denied when the defendant admitted he provoked the victim and there was no evidence that he abandoned the attack. Dyson v. State, 672 S.W.2d 460, 464–65 (Tex. Crim. App. 1984).
The Committee would caution a trial court against preventing the jury from even considering a defendant’s right of self-defense, except in the rarest of cases in which the evidence was undisputed that the defendant was not entitled to act in self-defense.
Comment
If the facts raise not only basic self-defense but also the possibility that provocation of the complainant by the defendant occurred, the instructions become considerably more complicated.
“Provoking the difficulty” was discussed at length by the court of criminal appeals in Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998).
Structure of Instructions. If “provoking the difficulty” is raised so as to require an instruction, the issue essentially provides an additional way in which the state can prove that self-defense is not applicable.
Therefore, the instruction at CPJC 9.19 introduces “provoking the difficulty” at the beginning as one of the ways in which the state can prevail on the issue of self-defense. First, the instruction provides:
To prove that the defendant provoked the other, the state must show that—
[Substitute the following for element 3 above if the prosecution is for an offense involving deadly force.]
The instruction then has the jury apply the defendant’s provocation to his claim of self-defense. The instruction should not address abandonment unless the evidence raises it. Therefore, the instruction provides options for use when the evidence does or does not raise abandonment:
To decide the issue of self-defense, you must determine whether the state has proved, beyond a reasonable doubt, one of the following elements. The elements are that—
[Substitute the following for element 3 above if the evidence raises abandonment or communication of a desire to abandon the attack.]
[Substitute the following for element 3 above if the evidence raises abandonment or communication of a desire to abandon the attack and a continuing response attack.]
There is some question whether all instructions that address abandonment would best also address continuation of the attack by the complainant after the abandonment. The instruction assumes that this already-complicated instruction should not be burdened with information on such continuation of the attack unless the evidence presents an issue regarding that matter.
This would be the case if (1) the state has proved the defendant provoked the encounter; (2) the state has failed to prove the defendant neither abandoned the encounter nor communicated a desire to do so; and (3) the state has produced evidence from which the jury could find, beyond a reasonable doubt, that the complainant did not continue his use of force after any abandonment or communication of a desire to abandon that may have occurred.
In those situations, the instruction attempts to tell the jury that the state can prevail by proving that the complainant did not continue the attack after any abandonment by the defendant.
Even if the instruction is technically correct, it may be too complicated to be practical. The problem is taking a “rule” drafted on the assumption that the defendant must prove the “defense” and putting it in a manner that explains the law in terms of what the state’s burden of proof on the matter means.