Comment

Whether jury instructions should and perhaps must address “provocation” has become a more difficult issue with recent changes in statutory self-defense law.

Traditionally, instructions on self-defense did not need, as a general matter, to address provocation. It was necessary to do so only if the facts raised a question about whether a defendant otherwise entitled to prevail because of self-defense was barred under Texas Penal Code section 9.31(b)(4) from so prevailing because the evidence showed the defendant provoked the incident in which the defendant acted in self-defense. This form of provocation by the defendant has been called “provoking the difficulty.” “Provoking the difficulty” is discussed more completely in CPJC 9.13 through CPJC 9.17.

In 2007, the legislature added provisions creating a presumption applicable in certain circumstances and specifying when self-defense does not require retreat. These provisions are discussed at CPJC 9.6 and CPJC 9.7. Both new provisions used the term provoke without defining it.

As a result, it is now necessary to determine whether provocation needs to be defined in any situation in which the jury instructions include either the statutory presumption or the statutory retreat law or both. Further, if a definition is required, is the term defined the same way for purposes of these rules as it is for the basic provocation exception to the right to use force in self-defense?

The instruction at CPJC 9.10 simply sets out the statutory law without defining provocation as that term or concept is used in this body of law.

The term provocation also appears in the so-called verbal provocation rule set forth in section 9.31(b)(1). As discussed below, this seems to be a different matter. It is best addressed by careful provision for what the verbal provocation rule is intended to mean.

Statutory Provision on Verbal Provocation. Texas Penal Code section 9.31(b)(1) provides: “The use of force against another is not justified . . . in response to verbal provocation alone.” The Committee had some difficulty deciding what effect to give to this provision in the instructions.

Current practice is generally to simply instruct the jury in the language of the statute.

The Committee was confident that under present law the language has the effect of limiting self-defense by establishing that verbal action by the victim amounting to no more than “verbal provocation” of the defendant is not the “use or attempted use of unlawful force.” If the facts show no more than that the victim engaged in verbal provocation, the defendant did not have the legal right to use force in self-defense.

In Hamel v. State, 916 S.W.2d 491 (Tex. Crim. App. 1996), for example, the evidence was that the victim (Charlie) said he was going to shoot the defendant and that he had something in his car to shoot him with. He then started to go out the front door toward his car. Finding that the defendant was entitled to a jury instruction on self-defense, the court explained, “[A]ppellant was not entitled to a self-defense instruction if his use of force was in response to verbal provocation alone. But Charlie’s threat did not stand alone. His move toward the car was the physical act that rendered his conduct more than a mere threat.” Hamel, 916 S.W.2d at 494. The victim’s threat to shoot the defendant was only verbal provocation that alone could not have served as the basis for self-defense.

“[V]erbal threats alone do not justify the use of force against another. Because the evidence in this case shows nothing more than verbal threats made to appellant, we conclude the evidence did not raise the issue of self-defense.” Lane v. State, 957 S.W.2d 584, 586 (Tex. App.—Dallas 1997, pet. ref’d) (citation omitted). See also Trammell v. State, 287 S.W.3d 336, 342 (Tex. App.—Fort Worth 2009, no pet.) (while aggravated assault victim’s words “could be viewed as an expression of his desire to fight [the defendant], his words alone did not justify appellant’s shooting the shotgun”); Gomez v. State, 991 S.W.2d 870, 873 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (“Although there is evidence that King told appellant, ‘I am going to blow you away,’ verbal provocation alone does not entitle appellant to use deadly force to defend himself. Tex. Penal Code Ann. § 9.31(b)(1) (Vernon Supp. 1998).”); Espinoza v. State, 951 S.W.2d 100, 101 (Tex. App.—Corpus Christi–Edinburg 1997, pet. ref’d) (“Mere words without an accompanying threatening action or gesture are not enough to constitute an act of aggression, nor foster an apprehension of danger which would permit the use of deadly force.”).

Some members of the Committee believed that current law, as Hamel indicated, is that the statutory phrase means that a claim of self-defense is not raised by evidence showing only a verbal threat to harm the defendant. They believed that this is not effectively communicated to juries by instructing them by use of the statutory phrase verbal provocation. To the contrary, they argued, the statutory language misleadingly suggests self-defense can somehow be based on “provocation” if it is not merely verbal. These Committee members favored the following paragraph:

A majority of the Committee decided, however, to recommend the paragraph above with provoke substituted for threaten. They believed that, despite some case law discussions, the statutory language reflected legislative intent to give juries some flexibility in this area and that flexibility is best facilitated by instructing juries using the statutory term verbal provocation.