Comment

Texas Penal Code section 9.31(b)(4) contains quite elaborate provisions for an attacker who provokes another to “regain” the right of self-defense. The Committee encountered significant difficulty translating this statement of general law into law reflecting the allocation of the burden of persuasion.

Instructions should not mention abandonment unless there is evidence before the jury raising abandonment. And a jury should be instructed on the issue of abandonment only if provocation applies in the first place. Elizondo v. State, 487 S.W.3d 185, 202 (Tex. Crim. App. 2016) (refusing to consider whether defendant had abandoned initial confrontation without first determining whether defendant had intent to provoke victim into attacking him, so that defendant could then claim that he was justified in shooting the victim in self-defense). If the matter is raised, the instructions should make clear that the burden of persuasion is on the state: the state must prove, beyond a reasonable doubt, both that the defendant provoked the victim and that the defendant did not do anything that triggered the abandonment “rule.”

Two matters are made relevant by the statute: (1) whether the defendant abandoned the encounter or communicated a desire to do so and (2) whether the provoked victim continued the responsive attack.

In some situations, the evidence may make clear that the victim continued the responsive attack past any action that could constitute an abandonment. The only issue for the jury is whether the defendant engaged in conduct that constituted an abandonment. Instructions making no reference to continuing the responsive attack are considerably simpler than ones addressing the continuing responsive attack. Consequently, the instruction at CPJC 9.19 provides one alternative for use where the evidence raises issues concerning both abandonment and continuation of the attack and another where the evidence raises an issue regarding only whether the defendant abandoned the encounter.