TX 3:1820 Abandonment of the Difficulty by Defendant
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Texas Criminal Pattern Jury Instructions (TCPJI)
Chapter 3. Defenses & Special Evidentiary Charges
XXVII. SELF DEFENSE / DEFENSE OF THIRD PERSON / DEFENSE OF PROPERTY
3:1820 Abandonment of the Difficulty by Defendant
This defense is given only when there is evidence that defendant provoked the difficulty or produced the occasion in the first place, and when there is evidence the defendant abandoned such difficulty in the second place. Therefore, it should only be charged when evidence shows that the defendant abandoned the difficulty, although the defendant may have started the difficulty or provoked the difficulty. His abandonment of a difficulty revives his right of self-defense, regardless of how he started the difficulty, provided his abandonment is communicated to the opposing participant. The conduct of the deceased relied upon to sustain such a defense (self-defense after abandonment by defendant of a difficulty provoked by himself) must have been so marked in matter of time, place, and circumstances as not only clearly to evince the withdrawal of the accused in good faith, but also such as fairly to advise his adversary that his danger had passed and make the conduct of the decedent thereafter the pursuit of vengeance rather than measures to repel the original assault. Ervin v. State, 367 S.W.2d 680 (Tex.Crim.App. 1963). See also, Juarez v. State, 961 S.W.2d 378 (Tex.App.-Houston [1st Dist.] 1997, pet. ref’d).