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My AccountChapter 9
- 9.1 Necessity Generally—Need to “Admit” Offense
- 9.2 Instruction—Necessity
- 9.3 Self-Defense Generally
- 9.4 Pre-1974 Penal Code Self-Defense Law and Jury Instructions
- 9.5 Role of “Provocation” in Self-Defense Instructions
- 9.6 Statutory Presumption
- 9.7 Retreat
- 9.8 Converse Instructions on Self-Defense
- 9.9 Multiple-Assailants Instruction Generally
- 9.10 Instruction—Nondeadly Force in Self-Defense
- 9.11 Nondeadly Force in Self-Defense with Consent Issue
- 9.12 Instruction—Nondeadly Force and Consent Issue
- 9.13 Nondeadly Force in Self-Defense with “Provoking the Difficulty” Issue
- 9.14 When Instruction on “Provoking the Difficulty” Is Proper
- 9.15 Defining Provocation
- 9.16 Abandonment of Provoking Attack
- 9.17 “Right to Arm” and “Provoking the Difficulty”
- 9.18 Defendant’s Verbal Provocation as Insufficient Justification
- 9.19 Instruction—Nondeadly Force and “Provoking the Difficulty” Issue
- 9.20 Instruction—Nondeadly Force—Defendant Arming Himself
- 9.21 Instruction—Threat of Deadly Force in Self-Defense
- 9.22 Deadly Force in Self-Defense Generally
- 9.23 Instruction—Self-Defense Involving Deadly Force to Protect against Deadly Force by Another
- 9.24 Instruction—Self-Defense Involving Deadly Force
- 9.25 Instruction—Self-Defense Involving Deadly Force—Defendant Arming Himself
- 9.26 Deadly Force to Prevent Felony Generally
- 9.27 Instruction—Deadly Force to Prevent Felony
- 9.28 Instruction—Deadly Force to Prevent Felony—Alternative Approach
- 9.29 Self-Defense against Action by Peace Officer Generally
- 9.30 Instruction—Self-Defense against Action by Peace Officer—No Allegation of Excessive Force
- 9.31 Instruction—Self-Defense against Action by Peace Officer—Allegation of Excessive Force
- 9.32 Defense of Others Generally
- 9.33 Instruction—Nondeadly Force in Defense of Another
- 9.34 Defense of Property Generally
- 9.35 Defense of “Habitation” or “Dwelling”
- 9.36 Nondeadly Force in Defense of One’s Own Personal Property—Property in One’s Possession and Recovering Property
- 9.37 Instruction—Nondeadly Force in Defense of One’s Own Personal Property—Preventing Interference with Property in One’s Possession
- 9.38 Instruction—Nondeadly Force in Defense of One’s Own Personal Property—Recovering Property
- 9.39 Nondeadly Force in Defense of Land Generally
- 9.40 Instruction—Nondeadly Force in Defense of Land
- 9.41 Instruction—Deadly Force in Defense of One’s Own Personal Property
- 9.42 Deadly Force in Defense of Land Generally
- 9.43 Instruction—Deadly Force in Defense of Land
- 9.44 Instruction—Nondeadly Force in Defense of Third Person’s Personal Property
- 9.45 Reasonable Discipline Defense Generally
- 9.46 Instruction—Reasonable Discipline Defense
- 9.47 Educator-Student Defense Generally
- 9.48 Instruction—Educator-Student Defense
- 9.49 Guardian-Incompetent Defense Generally
- 9.50 Instruction—Guardian-Incompetent Defense
Comment
The instruction at CPJC 9.19 includes a detailed presentation of the case law requirements for “provoking the difficulty,” as apparently directed by present law. See Dirck v. State, 579 S.W.2d 198, 203 (Tex. Crim. App. 1978) (opinion on rehearing) (instruction on provocation should include requirements of intent, an act by the defendant reasonably calculated to bring on the difficulty, and that the act actually did bring on the difficulty).
Traditionally, jury instructions properly told the jury that “provoking the difficulty” required an intent to use the provoked person’s response as a pretext. Lewellen v. State, 286 S.W. 224, 226 (Tex. Crim. App. 1926) (opinion on motion for rehearing) (“[J]ury should be told . . . that they must believe that the accused, with intent to bring on the difficulty or cause an attack which he might use as a pretext for killing or injuring the deceased”). This requirement continues to be the case. Menchaca v. State, 697 S.W.2d 857, 859 (Tex. App.—San Antonio 1985, no pet.) (“The charge failed to include all of the essential elements of the doctrine of provoking the difficulty, because it did not require the finding of an intent to provoke.”) (citing Dirck, 579 S.W.2d at 203).
In Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998), the court summarized the law:
The rule of law is that if the defendant provoked another to make an attack on him, so that the defendant would have a pretext for killing the other under the guise of self-defense, the defendant forfeits his right of self-defense. Although we address the issue in terms of intent to kill the victim, the law equally applies to a forfeiture of right to self-defense of any degree of harm the defendant intends to inflict upon the victim. For instance, if the defendant employs provocation with intent to assault the victim, and provokes an attack and makes an assault, then self-defense is lost as to the assault. The common law was that if the defendant merely intended an assault, and ultimately must have killed the victim in self-defense, then the killing was “manslaughter” or “murder without malice.” We do not today address this doctrine, also known as “imperfect self-defense.”
Smith, 965 S.W.2d at 512–13 (citations omitted).
Smith suggests that in a prosecution for an offense involving only nondeadly force, the instruction on “provoking the difficulty” should require an intent to use the occasion to inflict any harm on the complainant.
In prosecutions for an offense involving deadly force, however, the defendant’s provocation bars conviction for the charged offense only if it was done with intent to use the occasion to inflict death or serious bodily injury on the complainant.
In those prosecutions for an offense involving deadly force, however, the defendant’s provocation involving only an intent to use the occasion as a pretext for causing harm less than death or serious bodily injury might give rise to an “imperfect” defense. The defense would be imperfect in the sense that it would not exonerate the defendant but reduce the seriousness of the offense for which he could be convicted. Under traditional homicide law, the defendant would be convicted of manslaughter rather than murder. Smith carefully avoided comment on whether 1974 Penal Code homicide law contains any version of this traditional “imperfect self-defense” law.
The Committee concluded that, under Smith, in an instruction on perfect self-defense in a prosecution for murder or some other offense involving deadly force, the defendant’s provocation should be defined as requiring an intent to use the occasion as a pretext for either killing the complainant or causing the complainant serious bodily injury. An instruction on perfect self-defense in other cases should require only an intent to use the occasion as a pretext for doing some harm to the complainant.