TX CPJC 31-17 Instruction—Nondeadly Force and Provocation Issue
Criminal Pattern Jury Charges (Criminal Defenses) (2015)
Chapter 31.Self-Defense—Nondeadly Force
CPJC 31-17 Instruction—Nondeadly Force and Provocation Issue
[Insert instructions for underlying offense.]
If you all agree the state has proved, beyond a reasonable doubt, each of the [number] elements listed above, you must next consider whether the defendant’s use of force was made in self-defense.
Self-Defense
You have heard evidence that, when the defendant [insert specific conduct constituting offense], he believed his use of force was necessary to defend himself against [name]’s use [or attempted use] of unlawful force.
Relevant Statutes
A person’s use of force against another that would otherwise constitute the crime of [offense] is not a criminal offense if the person reasonably believed the force used was immediately necessary to protect the person against the other’s use [or attempted use] of unlawful force.
Provoking the Use or Attempted Use of Force
To prove that the defendant provoked the other, the state must show that—
1. the defendant did some acts or used some words that caused the other person to attack the defendant; and
2. the acts or words by the defendant were reasonably calculated to provoke the attack; and
3. the defendant did the acts or used the words for the purpose and with the intent that the defendant would have a pretext for inflicting harm on the other person.
[Substitute the following for element 3 above if the prosecution is for an offense involving deadly force.]
3. the defendant did the acts or used the words for the purpose and with the intent that the defendant would have a pretext for killing the other person or inflicting serious bodily injury on him.
[Include the following if the facts present a question about whether the defendant made an approach to seek an explanation and neither establish that the defendant was illegally armed nor raise a jury issue on that matter. Do not use if the jury could only conclude that the defendant was illegally armed.]
A person has a right to approach another person for the purpose of seeking an explanation from or a discussion with that other person concerning their differences. If the person fears an unlawful attack from the other, the person has a right to arm himself for purposes of protecting himself from the other person. Such action in seeking out the other, even while armed, does not constitute provocation as would deprive the person of the right to defend himself. It does not in any other way affect the person’s right to use force in self-defense.
[Include the following if the facts raise a jury issue about whether the defendant approached the complainant to seek a discussion of differences while armed in violation of the Penal Code.]
However, a person who seeks an explanation from or a discussion with another person concerning differences between them cannot use force in self-defense while either—
1. the person is carrying a weapon in violation of section 46.02 of the Texas Penal Code; or
2. the person is possessing or transporting a weapon in violation of section 46.05 of the Texas Penal Code.
Section 46.02 of the Texas Penal Code prohibits a person from intentionally, knowingly, or recklessly carrying on or about the person a handgun, illegal knife, or club if the person is neither—
1. on the person’s own premises or premises under the person’s control; or
2. inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.
Section 46.02 of the Texas Penal Code prohibits a person from intentionally, knowingly, or recklessly carrying on or about the person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control if the handgun is in plain view.
Section 46.05 of the Texas Penal Code prohibits a person from possessing or transporting a [specify weapon].
You must consider whether the state has proved, beyond a reasonable doubt, that the defendant approached another person for the purpose of seeking an explanation from or a discussion with that other person concerning their differences while in violation of the Penal Code. If the state has proved this, you should not apply a general rule that approaching another person, even while armed, for the purpose of seeking an explanation from or a discussion with that other person concerning their differences does not constitute provocation as would deprive the person of the right to defend himself.
You must still determine whether the state has proved, beyond a reasonable doubt, that the defendant provoked the other person. In making this determination, however, you are not to assume that the defendant’s approach to the other person is necessarily not provocation.
Burden of Proof
The defendant is not required to prove self-defense. Rather, the state must prove, beyond a reasonable doubt, that self-defense does not apply to the defendant’s conduct.
Definition
Reasonable Belief
“Reasonable belief” means a belief that an ordinary and prudent person would have held in the same circumstances as the defendant.
Application of Law to Facts
If you have found that the state has proved the offense beyond a reasonable doubt, you must next decide whether the state has proved that the defendant’s conduct was not justified by self-defense.
To decide the issue of self-defense, you must determine whether the state has proved, beyond a reasonable doubt, one of the following elements. The elements are that—
1. the defendant did not believe his conduct was immediately necessary to protect himself against [name]’s use [or attempted use] of unlawful force; or
2. the defendant’s belief was not reasonable; or
3. the defendant provoked [name]’s use [or attempted use] of unlawful force.
[Substitute the following for element 3 above if the evidence raises abandonment or communication of a desire to abandon the attack.]
3. the defendant—
a. provoked [name]’s use [or attempted use] of unlawful force; and
b. did not—
i. abandon the encounter with [name]; or
ii. reasonably believe he could not safely abandon the encounter and communicate his desire to abandon the encounter with [name].
[Substitute the following for element 3 above if the evidence raises abandonment or communication of a desire to abandon the attack and a continuing response attack.]
3. both—
a. the defendant provoked [name]’s use [or attempted use] of unlawful force; and
b. either—
i. the defendant did not abandon the encounter or reasonably believe he could not safely abandon the encounter and communicate his desire to abandon the encounter; or
ii. [although the defendant may have abandoned the encounter or communicated his desire to do so,] the other person did not continue or attempt to continue to use unlawful force against the defendant after the defendant’s abandonment or communication of the desire to abandon the encounter.
You must all agree that the state has proved, beyond a reasonable doubt, either element 1, 2, or 3 listed above. You need not agree on which of these elements the state has proved.
If you find that the state has failed to prove, beyond a reasonable doubt, either element 1, 2, or 3 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of [insert specific offense], and you all agree the state has proved, beyond a reasonable doubt, either element 1, 2, or 3 listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge, in Texas Criminal Pattern Jury Charges—General, Evidentiary & Ancillary Instructions.]