provoking-the-difficulty instruction in Texas

2024Cf. id. (weighing factor in favor of harm when self-defense was defendant’s sole defensive theory and holding that some harm existed); Villarreal, 453 S.W.3d at 440 (concluding that “[b]ecause the [erroneously omitted instruction] affected only appellant’s secondary defensive theory,” it did not “touch[] upon a ‘vital aspect’ of his case”). e. Summary “Egregious harm is a difficult standard to meet,” Alcoser, 663 S.W.3d at 165, and the record in this case shows that the provoking-the-difficulty instruction does not meet that standard.

2024Moreover, also like Reeves, the provoking-the-difficulty instruction followed the instruction on self-defense and came at the very end of the jury charge, “[s]o the last substantive instruction that the jury read was the erroneous one.” Reeves, 420 S.W.3d at 819 ; see Elizondo, 487 S.W.3d at 208 (similar).

2024Either way, Sparks did not clarify during the charge conference. 21 Key portions of the instruction were almost identical to those used in Reeves v. State, where the Court of Criminal Appeals described the provoking-the-difficulty instruction as “[in]comprehensible” and found that the jury charge as a whole weighed in favor of harm. 420 S.W.3d 812, 818 (Tex. Crim.

2024As in Reeves, the two paragraphs applying the provoking-the-difficulty doctrine consisted of two run-on sentences with more than 120 words each.10 420 S.W.3d at 818 (noting that first application paragraph on 9 In his harm analysis, Sparks complains of various other alleged deficiencies in the charge, which he claims contributed to the jury charge as a whole weighing in favor of harm.

2022Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim.

2018Elizondo , 487 S.W.3d at 197 ; Smith , 965 S.W.2d at 518 .

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

2024See Villarreal, 453 S.W.3d at 440 (weighing state of the evidence against egregious harm when defendant’s statements “were internally inconsistent with his claim of self-defense and were contradicted by the entirety of the record”). 27 c.

2024Cf. id. (weighing factor in favor of harm when self-defense was defendant’s sole defensive theory and holding that some harm existed); Villarreal, 453 S.W.3d at 440 (concluding that “[b]ecause the [erroneously omitted instruction] affected only appellant’s secondary defensive theory,” it did not “touch[] upon a ‘vital aspect’ of his case”). e. Summary “Egregious harm is a difficult standard to meet,” Alcoser, 663 S.W.3d at 165, and the record in this case shows that the provoking-the-difficulty instruction does not meet that standard.

2024See Cosio, 353 S.W.3d at 777 (weighing arguments of counsel against finding of egregious harm because “neither of the parties nor the trial judge added to the charge 30 errors by telling the jury that it did not have to be unanimous”); cf. Elizondo, 487 S.W.3d at 208–09 (concluding that, although State’s argument addressed concept of provoking the difficulty, the instruction was not brought to the front of jurors’ minds, so factor was neutral regarding presence of some harm); Ngo, 175 S.W.3d at 750–51 (holding egregious harm when “the trial judge and the prosecution misstated the law at the ve

2022In Juarez, the Court did not address the provoking-the-difficulty doctrine. 308 S.W.3d at 400–06.

2022See Juarez, 308 S.W.3d at 405 (trial court must instruct jury on defense even when evidence supporting defense is weak or contradicted).

1985See Dirck v. State, 579 S.W.2d 198, 203 (Tex.Crim.App.1978).

1983First, without mentioning the statutory exemption at all, the Court held in Quinn v. State, 50 Tex.Cr.App. 209 , 96 S.W. 33 (1906), that one charged with unlawfully carrying a pistol who, while on his way home with it, stopped at the house of and called out another to obtain an explanation of alleged insulting conduct toward his wife, was entitled to a charge to the effect that he "had a right to stop by Nicholson's to ask an explanation, and to defend himself with a pistol, if attacked," because "that was the defense claimed by appellant," id., at 34.

1983First, without mentioning the statutory exemption at all, the Court held in Quinn v. State, 50 Tex.Cr.App. 209 , 96 S.W. 33 (1906), that one charged with unlawfully carrying a pistol who, while on his way home with it, stopped at the house of and called out another to obtain an explanation of alleged insulting conduct toward his wife, was entitled to a charge to the effect that he "had a right to stop by Nicholson's to ask an explanation, and to defend himself with a pistol, if attacked," because "that was the defense claimed by appellant," id., at 34.