Comment

Before the 1974 Penal Code. Prior to the adoption of the 1974 Penal Code, the court of criminal appeals routinely held that a defendant was not entitled to a jury charge on the right to arm himself if there was no limitation placed on his right of self-defense, such as when the jury is charged on “provoking the difficulty.” Watson v. State, 513 S.W.2d 577, 578 (Tex. Crim. App. 1974); De la Cruz v. State, 490 S.W.2d 839, 841 (Tex. Crim. App. 1973); Cavazos v. State, 423 S.W.2d 582, 585 (Tex. Crim. App. 1968). The rule requiring a charge on the right to arm grew out of cases where the accused sought out the victim for the purpose of correcting a wrong or demanding an explanation. In such a case, the charge on self-defense is usually limited by a charge on “provoking the difficulty,” because the accused is the initiator of the confrontation. In that situation, however, the accused is still entitled to that limited right of self-defense even though he brought a weapon to the confrontation, and the jury should be so instructed. Sheppard v. State, 545 S.W.2d 816, 820 (Tex. Crim. App. 1977).

On the other hand, it was equally well settled that, if the court’s instructions limited the defendant’s right of self-defense by an instruction on “provoking the difficulty,” then (if supported by the evidence) the jury should be instructed that the fact that the defendant carried arms to the scene of the difficulty would not necessarily abridge his right of self-defense. Young v. State, 530 S.W.2d 120, 122 (Tex. Crim. App. 1975).

After the 1974 Penal Code. In Young, the court of criminal appeals refused to construe the new 1974 Penal Code as eliminating the need for a “right to arm” instruction when the jury was charged on the “provoking the difficulty” limitation to the defendant’s right of self-defense, even though “provoking the difficulty” had been included in section 9.31 and “right to arm” had not been included. Young, 530 S.W.2d at 122–23. In Williams v. State, 580 S.W.2d 361, 362–63 (Tex. Crim. App. 1979), the court of criminal appeals reaffirmed its refusal to eliminate the “right to arm” instruction if the defendant’s right of self-defense was limited by an instruction on “provoking the difficulty” and if “right to arm” was raised by the evidence. See also Gassett v. State, 587 S.W.2d 695, 697 (Tex. Crim. App. 1979). In Banks v. State, 656 S.W.2d 446, 447 (Tex. Crim. App. 1983), the court of criminal appeals held that a defendant was entitled to a charge on “right to arm,” even if he himself had requested and received a charge on “provoking the difficulty.”

After they gained jurisdiction over criminal appeals, the courts of appeals continued to follow the long-standing rule that, if a defendant’s right of self-defense was limited by a charge on “provoking the difficulty,” the defendant would be entitled to a “right to arm” charge if it was raised by the evidence. Cisneros v. State, 747 S.W.2d 946, 949–50 (Tex. App.—San Antonio 1988, pet. ref’d); Martinez v. State, 653 S.W.2d 630, 637–38 (Tex. App.—San Antonio 1983, pet. ref’d); Vaughn v. State, 888 S.W.2d 62, 71–72 (Tex. App.—Houston [1st Dist.] 1994), aff’d on other grounds, 931 S.W.2d 564 (Tex. Crim. App. 1996) (case in which court of appeals held that “right to arm” instruction was not raised by evidence). And a defendant would not be entitled to a “right to arm” instruction if the jury was not charged on “provoking the difficulty.” Brunson v. State, 764 S.W.2d 888, 890–91 (Tex. App.—Austin 1989, pet. ref’d); Cleveland v. State, 700 S.W.2d 761, 762–63 (Tex. App.—San Antonio 1985, pet. ref’d).

After the Addition of Section 9.31(b)(5)—Courts of Appeals. In 1993, the Texas legislature added section 9.31(b)(5), and the provision was amended in 1995. Tex. Penal Code § 9.31(b)(5) provides that the state can render self-defense inapplicable by showing that, at the time of the incident, the defendant was carrying, possessing, or transporting a weapon in violation of section 46.02 or 46.05. After the legislature amended section 9.31 by adding section 9.31(b)(5), the courts of appeals began to recognize that subsection as the legislature’s expression of a defendant’s “right to arm.”

In McGowan v. State, 188 S.W.3d 239, 241 (Tex. App.—Waco 2006, pet. ref’d), the Waco court of appeals held that a defendant was not entitled to a charge on “right to arm” because the jury had not been charged on “provoking the difficulty.” The Waco court also noted that, because the defendant had been illegally carrying his weapon, the newly added section 9.31(b)(5)(A) would prevent him from relying on self-defense as a justification for his conduct. McGowan, 188 S.W.3d at 241. The Waco court also noted that, in Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998), the court of criminal appeals had found inapplicable to a post-1974 Penal Code case a long line of cases which provided that a defendant was entitled to a jury instruction on the defense of alibi. The court reasoned that “only the Legislature can establish defenses and affirmative defenses to criminal offenses and that only those defenses and affirmative defenses entitle defendants to defensive and affirmative defensive instructions in the jury charge.” McGowan, 188 S.W.2d at 242 (quoting Giesberg, 984 S.W.2d at 250).

In McGowan, the Waco court noted that, following Giesberg, two courts of appeals had held that the “right to arm” charge was not contained in the 1974 Penal Code and, therefore, a defendant was no longer entitled to a “right to arm” instruction under any circumstances. McGowan, 188 S.W.3d at 242 (citing Fonseca v. State, No. 04-03-00398-CR, 2004 WL 2533305, at *3–4 (Tex. App.—San Antonio, Nov. 10, 2004, pet. dism’d) (not designated for publication); Castaneda v. State, 28 S.W.3d 216, 226 (Tex. App.—El Paso 2000, pet. ref’d)). The Waco court agreed with these decisions. McGowan, 188 S.W.3d at 242. See also Whipple v. State, 281 S.W.3d 482, 503–04 (Tex. App.—El Paso 2008, pet. ref’d) (defendant is not entitled to such self-defense “embellishments” because they are not recognized by or labeled as defenses by the legislature).

After the Addition of Section 9.31(b)(5)—Court of Criminal Appeals. As noted more fully in CPJC 9.4, in Walters v. State, the court of criminal appeals indeed held that much of the traditional case law, which was decided prior to the adoption of the 1974 Penal Code, is no longer appropriate for jury instructions after the adoption of the 1974 Penal Code. Walters v. State, 247 S.W.3d 204, 209–10 (Tex. Crim. App. 2007). That is not, however, what the Walters court indicated with regard to a “right to arm” instruction. The Walters court appeared to reaffirm what it held in Young v. State—that the court of criminal appeals had explicitly rejected the argument that a “right to arm” instruction was no longer appropriate after the adoption of the 1974 Penal Code. Walters, 247 S.W.3d at 210–11 (citing Young, 530 S.W.2d at 122–23).

In Walters, the court of criminal appeals did recognize that several courts of appeals had taken a different path:

Walters, 247 S.W.3d at 211. The propriety of any type of “right to arm” instruction was not before the court in Walters. But the court’s treatment of Young has left it unclear whether, when directly confronted with the propriety of a “right to arm” instruction, the court of criminal appeals would reaffirm its holding in Young or follow the approach begun by the courts of appeals in cases like McGowan.

“Right to Arm” Construed with “Provoking the Difficulty.” As a practical matter, and based on the long history of the two self-defense jury instructions, the “right to arm” most commonly would apply when the case involves an issue concerning “provoking the difficulty.”

Thus, as set forth in the instruction at CPJC 9.19, arming oneself and doing so in violation of the Penal Code is addressed as a part of “provoking the difficulty.” Such an approach has been approved by at least one court of appeals. Trejo v. State, No. 03-18-00221-CR, 2020 WL 1313735, at *5–6 (Tex. App.—Austin Mar. 20, 2020, no pet.) (not designated for publication).

In accordance with cases like Whipple and McGowan, one possible reading of section 9.31(b)(5) is that if this is the issue, self-defense is for this reason alone inapplicable. Such an approach could be implemented by telling a jury that it should conclude that the defendant did not act in self-defense if the state proves the defendant sought an explanation from the complainant while the defendant was acting in violation of either Penal Code section. This approach is implemented by the instruction at CPJC 9.20.

Another reading of the statute is also possible. Consistent with Young, it is possible that section 9.31(b)(5) creates a qualification to an unstated general rule—a “peaceful-approach while armed” rule that corresponds generally with the common law right to arm oneself. Under this possibility, section 9.31(b)(5), if triggered, renders inapplicable the “rule” that seeking an explanation—even while armed—is not provocation that would render self-defense inapplicable. The state can still undertake to prove self-defense inapplicable because the defendant provoked the complainant. Further, the instructions should make clear to the jury that whether the state has proved provocation is to be decided without applying a “rule” that seeking an explanation of differences is not itself provocation.

The instruction at CPJC 9.19 offers a qualification to the peaceful-approach rule that attempts to convey these quite complex directions for analysis to the jury.

If the evidence permits only a conclusion that the defendant did approach the victim while in violation of the Penal Code, the instruction on peaceful approach should not be given. The jury should, however, be instructed to address whether the state has proved “provoking the difficulty.”

If the evidence raises a jury question about whether the defendant was in violation of the Penal Code, the instruction at CPJC 9.19 attempts to put that issue to the jury and convey that the jury’s answer determines whether in its “provoking the difficulty” analysis the jury should use the peaceful-approach rule.

That portion of the instruction provides as follows:

In addition to the provision in section 46.15(b)(6), dealing with carrying a handgun license, there are other provisions in section 46.15 that would render section 46.02 inapplicable. If the facts raise one of section 46.15’s less common provisions, that provision might need to be made a part of the jury charge as well. Section 9.31(b)(5) does not mention any other provisions of chapter 46, so they have not been included in the instructions at CPJC 9.19 and CPJC 9.20.

Inapplicability of “Right to Arm” as a Matter of Law. After the addition of section 9.31(b)(5), some courts of appeals have held that a defendant is not entitled to a self-defense instruction at all if the evidence establishes the elements of section 9.31(b)(5) as a matter of law. See Lay v. State, 359 S.W.3d 291, 298 (Tex. App.—Texarkana 2011, pet. ref’d) (“Because Lay sought a discussion concerning his differences with [the victim] while carrying his friend’s gun upon the apartment complex premises in violation of section 46.02 of the Texas Penal Code, he was not entitled to an instruction on the issue of self-defense as a matter of law.”); Davis v. State, 276 S.W.3d 491, 499 (Tex. App.—Waco 2008, pet. ref’d); Williams v. State, 35 S.W.3d 783, 786 (Tex. App.—Beaumont 2001, pet. ref’d). 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. Cf. Hernandez v. State, 309 S.W.3d 661, 663–65 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (case in which jury was charged on self-defense and also charged on section 9.31(b)(5) as limitation on defendant’s right of self-defense). It should also be noted that the jury charge regarding this issue can become further complicated if the defendant is a handgun license holder. See Rodriguez v. State, 456 S.W.3d 271, 282–83 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (holding that section 9.31(b)(5) would not apply to handgun license holder otherwise legally carrying his handgun). Strong consideration must at least be given to instructing the jury in accordance with CPJC 9.20.