provocation instruction in Texas

2026Analysis Appellant asserts that the trial court erred by including a provocation instruction in its charge when the evidence did not establish the third Smith element.3 See Smith, 965 S.W.2d at 512–13.

2014But see Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998) (finding provocation requires, inter 7 The statute codifies the common law doctrine of provocation.

2024If instead the jury charge included the elements of provocation, the jury charge would have “implied that there was some evidence to support every element of the provocation doctrine when there was not.” See Reeves, 420 S.W.3d at 819 (quoting Reeves v. State, No. 01-10-00395-CR, 2012 WL 5544770 , at *6 (Tex. App.—Houston [1st Dist.] Nov. 15, 2012) (mem. op., not designated for publication)); cf. Mendoza v. State, 349 S.W.3d 273, 284 (Tex. App.—Dallas 2011, pet. ref’d) (“Submission of substantial and detailed instructions on provoking the difficulty severely handicapped appellant’s right to hav

2022Cf. id. at 819 (agreeing that inapplicable provocation instruction’s mere presence in charge “implied that there was some evidence to support every element of the provocation doctrine when there was not” (quoting Reeves v. State, No. 01-10-00395-CR, 2012 WL 5544770 , at *6 (Tex. App.––Houston [1st Dist.] Nov. 15, 2012) (mem. op., not designated for publication), aff’d, 420 S.W.3d at 821 )).

2026Thus, “[i]f the facts do not support giving the charge on provoking the difficulty (i.e., a rational jury could not find all three elements of provocation beyond a reasonable doubt), then the provocation instruction must not be submitted to the jury,” because “[i]ncluding it in the jury charge would constitute an unwarranted limitation on the right of self- defense, i.e., trial court error.” Id.

2026But one of the law’s limitations on the right of self-defense—rooted in the common law and codified in Section 9.31(b)(4) of the Texas Penal Code—is the doctrine of provocation—also known as “provoking the difficulty.” See Tex. Penal Code § 9.31(b)(4); Elizondo, 487 S.W.3d at 196-97; Smith v. State, 965 S.W.2d 509 , 512-13 (Tex. Crim. App. 1998).

2024If instead the jury charge included the elements of provocation, the jury charge would have “implied that there was some evidence to support every element of the provocation doctrine when there was not.” See Reeves, 420 S.W.3d at 819 (quoting Reeves v. State, No. 01-10-00395-CR, 2012 WL 5544770 , at *6 (Tex. App.—Houston [1st Dist.] Nov. 15, 2012) (mem. op., not designated for publication)); cf. Mendoza v. State, 349 S.W.3d 273, 284 (Tex. App.—Dallas 2011, pet. ref’d) (“Submission of substantial and detailed instructions on provoking the difficulty severely handicapped appellant’s right to hav

2015The harm question to be answered is ―whether, in the absence of the provocation instruction, there would have been any chance that the jury would have found that [the appellant] acted in self-defense.‖ Mendoza, 349 S.W.3d at 42 282.

2010LEXIS 8370 ( Tex.App .--Houston [1 st Dist.) 2009 no pet.); Harrod v. State, 203 S.W.3d 622, 628-29 ( Tex.App .

2010LEXIS 8370 (Tex.App.--Houston [1[st] Dist.) 2009 no pet.); Harrod v. State, 203 S.W.3d 622, 628-29 (Tex.App.Dallas 2006, no pet.) (both applying Smith).

2016App. 1984); Stoffregen v. State, Nos. 02-03-00022-CR, 02-03-00023-CR, 2004 WL 362272 , at *1 (Tex. App.—Fort Worth Feb. 26, 2004, no pet.) (mem. op., not designated for publication). 11 See Zuliani, 97 S.W.3d at 594 . 12 See Saxton, 804 S.W.2d at 913–14. 5 or may support a jury’s finding defeating the self-defense claim.13 The jury, as trier of fact, was free to believe that Appellant’s words were insufficient to provoke the difficulty, that Toler’s response was excessive in light of the provocation, that Appellant’s words were sufficient to provoke the difficulty, that Toler’s response was no

2016When a defendant has spoken words reasonably calculated to provoke the complainant’s attack on the defendant, the provocation doctrine may preclude the assertion of the self-defense justification 9 See id. 10 See Smith v. State, 676 S.W.2d 584 , 586–87 (Tex. Crim.

2024Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013).

2013In this Court, the State concedes that the provocation instruction was given in error and that appellant properly objected at trial.24 We therefore focus only on the question of 20 Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim.

2016Accordingly, we must reverse and remand for a new trial. 4 See Berger, 295 U.S. at 89 , 55 S.Ct. at 663 (“[Sjuch misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential.

2016Accordingly, we must reverse and remand for a new trial. 4 See Berger, 295 U.S. at 89 , 55 S.Ct. at 663 (“[Sjuch misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential.

2015In Reeves, the court agreed with the court of appeals that "[t]he provocation instr uction's presence in the jury charge implied that there was some evidence to supp ort every element of the provocation doctrine when there was not." Reeves,, supra; see also McCandless v. State, 42 Tex. Crim. 58, 57 S.W. 672, 675 (Tex. Crim. App. 1900) ("however grou ndless the [provocation] charge may be, coming as it does from the court, it is calc ulated to make the jury believe that, in the opinion of the judge, there was evidence tending to show that appellant brought on the difficulty for the purpose of s

2015In Reeves, the court agreed with the court of appeals that "[t]he provocation instr uction's presence in the jury charge implied that there was some evidence to supp ort every element of the provocation doctrine when there was not." Reeves,, supra; see also McCandless v. State, 42 Tex. Crim. 58, 57 S.W. 672, 675 (Tex. Crim. App. 1900) ("however grou ndless the [provocation] charge may be, coming as it does from the court, it is calc ulated to make the jury believe that, in the opinion of the judge, there was evidence tending to show that appellant brought on the difficulty for the purpose of s

2015Considering the State argued provocation to the Court of Appeals, the Amarillo Court should have addressed it. 42 The Texas Rules of Appellate Procedure require a Court of Appeals to address every issue raised and necessary for a final disposition of the appeal.43 38 See Tex. Penal Code Ann. §9.31 (b) (4) (West 2013); see also Kennedy v. State, 193 S. W. 3d 645, 654 (Tex. App. – Fort Worth 2006, pet. ref’d.) . 39 See Kennedy v. State, 193 S. W. 3d 645, 654 (Tex. App. – Fort Worth 2006, pet. ref’d.) (provoking the use of force acts as a limitation or total bar on a Defendant’s right to self- de

2015Considering the State argued provocation to the Court of Appeals, the Amarillo Court should have addressed it. 42 The Texas Rules of Appellate Procedure require a Court of Appeals to address every issue raised and necessary for a final disposition of the appeal.43 38 See Tex. Penal Code Ann. §9.31 (b) (4) (West 2013); see also Kennedy v. State, 193 S. W. 3d 645, 654 (Tex. App. – Fort Worth 2006, pet. ref’d.) . 39 See Kennedy v. State, 193 S. W. 3d 645, 654 (Tex. App. – Fort Worth 2006, pet. ref’d.) (provoking the use of force acts as a limitation or total bar on a Defendant’s right to self- de

2015Elizondo submits that if the court had properly analyzed Smith v. State, the jury charge should not have included a provocation instruction, and Elizondo respectfully requests the ability to fully brief this issue if review is granted. 9 stop.20 Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

2015Elizondo submits that if the court had properly analyzed Smith v. State, the jury charge should not have included a provocation instruction, and Elizondo respectfully requests the ability to fully brief this issue if review is granted. 9 stop.20 Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

1996See Jamison v. State, 141 Tex.Crim. 349 , 148 S.W.2d 405, 407-08 (App.1941), overruled on other grounds, 156 Tex.Crim. 140 , 239 S.W.2d 105 (App.1951) (holding that ordering the victim, with whom the appellant had an ongoing dispute, to stop while holding a firearm was sufficient evidence to warrant a provocation instruction); Norwood v. State, 135 Tex.Crim. 406 , 120 S.W.2d 806, 808-09 (App.1938) (holding that evidence of appellant’s continuing confrontations with the victim, acquisition of a firearm after a recent confrontation, and invitation to approach while exhibiting the firearm warrant

1996See Jamison v. State, 141 Tex.Crim. 349 , 148 S.W.2d 405, 407-08 (App.1941), overruled on other grounds, 156 Tex.Crim. 140 , 239 S.W.2d 105 (App.1951) (holding that ordering the victim, with whom the appellant had an ongoing dispute, to stop while holding a firearm was sufficient evidence to warrant a provocation instruction); Norwood v. State, 135 Tex.Crim. 406 , 120 S.W.2d 806, 808-09 (App.1938) (holding that evidence of appellant’s continuing confrontations with the victim, acquisition of a firearm after a recent confrontation, and invitation to approach while exhibiting the firearm warrant

1998See Stanley v. State, 625 S.W.2d 320, 321 (Tex.Crim.App. [Panel Op.] 1981).

1996See Stanley v. State , 625 S.W.2d 320, 321 (Tex. Crim. App. [Panel Op.] 1981).

2016“Under such an analysis the appellate court asks if there was sufficient evidence from which a rational jury could have found provocation beyond a reasonable doubt, viewing the evidence in the light most favorable to giving the instruction.” 19 The court of appeals correctly cited to Smith in its discussion of Elizondo’s first issue raised on direct appeal regarding legal sufficiency: 17 Matthews v. State, 708 S.W.2d 835, 837 (Tex. Crim.

2015Matthews, 708 S.W.2d at 838 .

2015F-13-57185-U _________________________________________________ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _________________________________________________ BRUCE ANTON SORRELS, UDASHEN & ANTON State Bar No. 01274700 2311 Cedar Springs, Suite 250 [email protected] Dallas, Texas 75201 214-468-8100 (office) BRETT ORDIWAY 214-468-8104 (fax) State Bar No. 24079086 [email protected] Counsel for Appellant Ground for Review Whether the trial court erred in instructing the jury on the doctrine of provocation. 2 Table of Contents Ground for Review .......................................................

2006Id. at 383 .

2026See Elizondo, 487 S.W.3d at 200–02; Smith, 965 S.W.2d at 514 ; see also Engel, 630 S.W.3d at 200–01 (upholding the trial court’s submission of a provocation instruction in its charge where the defendant said that he was going to “kick [the victim’s] a-s,” the defendant showed the victim that he was loading a weapon, and lunged toward victim); Kelley v. State, 968 S.W.2d 395, 401 (Tex. App.—Tyler 1998, no pet.) (holding that evidence that a defendant approached the victim’s yard, brandished a gun, confronted the victim, and refused to leave supported a rational inference of intent to support a

2026See Smith, 965 S.W.2d at 518–19 (describing cases that illustrate the “exceptional and extraordinary situations” where a provocation instruction is unwarranted, noting that the current case fell “short of such a rarity”); Engel, 630 S.W.3d at 200.

2019In support of this claim, he cites to the Waco Court of Appeals decision in Ray v. State, 419 S.W.3d 467, 469 (Tex.App.--Waco 2013, pet. ref’d) that found provocation is not a part of the necessity defense.

2018Because the legislature has not included a provocation exception in the necessity statute, the Waco court likewise did not apply the exception in Ray. 419 S.W.3d at 468–69. 8 c.

2018See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.

2016App. 1984); Stoffregen v. State, Nos. 02-03-00022-CR, 02-03-00023-CR, 2004 WL 362272 , at *1 (Tex. App.—Fort Worth Feb. 26, 2004, no pet.) (mem. op., not designated for publication). 11 See Zuliani, 97 S.W.3d at 594 . 12 See Saxton, 804 S.W.2d at 913–14. 5 or may support a jury’s finding defeating the self-defense claim.13 The jury, as trier of fact, was free to believe that Appellant’s words were insufficient to provoke the difficulty, that Toler’s response was excessive in light of the provocation, that Appellant’s words were sufficient to provoke the difficulty, that Toler’s response was no

2015Id. at 606 .

2015Tave v. State, 620 S.W.2d 604 , 9 605-06 (Tex. Crim.

2026See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges: Justification Defenses PJC 9.23 (2024); see also Cochran v. State, 692 S.W.3d 891 , 896 (Tex. App.—Dallas 2024, no pet.) (“Pattern jury charges are advisory [only] and not binding on the courts.”). “[I]t is the function of the charge to lead and to prevent confusion.” Reeves v. State, 420 S.W.3d 812, 818 (Tex. Crim.

2026See Casey, 215 S.W.3d at 886–87 (holding that the trial court’s charge was not erroneous where it set forth the law applicable to the case and accurately tracked the statute’s required language); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim.

2026See Elizondo, 487 S.W.3d at 200–02; Smith, 965 S.W.2d at 514 ; see also Engel, 630 S.W.3d at 200–01 (upholding the trial court’s submission of a provocation instruction in its charge where the defendant said that he was going to “kick [the victim’s] a-s,” the defendant showed the victim that he was loading a weapon, and lunged toward victim); Kelley v. State, 968 S.W.2d 395, 401 (Tex. App.—Tyler 1998, no pet.) (holding that evidence that a defendant approached the victim’s yard, brandished a gun, confronted the victim, and refused to leave supported a rational inference of intent to support a

2026See Casey, 215 S.W.3d at 886–87 (holding that the trial court’s charge was not erroneous where it set forth the law applicable to the case and accurately tracked the statute’s required language); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim.

2019See Zavala v. State, 401 S.W.3d 171, 183 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (concluding the trial court did not err in including a provocation instruction where the defendant went to a place he knew the complainant was to confront her and, instead of leaving, kicked in two doors to reach her). 3.

2016Accordingly, we must reverse and remand for a new trial.4 See Berger, 295 U.S. at 89 , 55 S. Ct. at 663 (“[S]uch misconduct was 4 Although the general rule is that a timely and specific objection, a request for an instruction to disregard the matter improperly placed before the jury, and a request for a mistrial are required to preserve a complaint of prosecutorial misconduct, when “prosecutorial misconduct that undermines the reliability of the factfinding process . . . result[s] in deprivation of fundamental fairness and due process of law, the defendant is entitled to a new trial even thoug

2016A conclusion that there was enough evidence may not have required such an in-depth examination of the evidence, but our conclusion that there was no evidence to support a finding of the third element of Smith required us to examine all of the evidence. 50 686 S.W.2d 157, 171 (Tex. Crim.

2016We continue to follow the well-established rule that "a statute must not be interpreted as abrogating a principle of the common law unless such overruling is clearly indicated, either by the express terms of the statute or by necessary implication from the language used.” Enos v. State, 889 S.W.2d 303, 305 (Tex.Crim.App.1994); Manning v. State, 730 S.W.2d 744, 747-48 (Tex.Crim.App. 1987) (recognizing that even when common law rules regarding competency and sanity are codified, if the rules concerning burden shifting have not been incorporated into the statute, then those common law rules remai