§ CPJC 9.14 When Instruction on “Provoking the Difficulty” Is Proper
If the facts raise a jury issue about whether provocation precludes application of self-defense, the issue should be submitted to the jury.
In 1979, the court of criminal appeals commented, “[E]very trial judge of any experience knows that submitting [an instruction on provoking the difficulty] to a jury is fraught with difficulty and the chance of error is great.” Dirck v. State, 579 S.W.2d 198, 203 n.5 (Tex. Crim. App. 1978) (opinion on rehearing).
Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998), however, gave trial judges much more guidance as to when this instruction is required. In Smith, the court of criminal appeals explained generally:
A charge on provocation is required when there is sufficient evidence (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. . . .
. . . .
An instruction on provocation should only be given when there is evidence from which a rational jury could find every element of provocation beyond a reasonable doubt.
The words or actions may be ones directed at a third party, that is, someone other than the person who in fact was provoked. Smith, 965 S.W.2d at 514-15.
This standard does not require the judge to encroach on the jury’s role as factfinder. It does not require the judge to assess the credibility or strength of the evidence. It simply requires the judge to decide whether evidence has been presented that could support a jury’s finding of all three elements of provocation beyond a reasonable doubt. Elizondo v. State, 487 S.W.3d 185, 197 (Tex. Crim. App. 2016).
Raising Whether Provocation Occurred. A traditional problem for trial judges is avoiding error by instructing on “provoking the difficulty” when the facts raise only whether the defendant or the complainant made the “first attack.” This was the reversible error in Dirck, 579 S.W.2d at 203, as well as in numerous earlier cases.
Smith, 965 S.W.2d 509, reaffirmed this rule but made clear that the rule is in essence the question of whether the evidence generates a jury issue regarding the first of the three requirements for a “provoking the difficulty” instruction: “[evidence] that the defendant did some act or used some words which provoked the attack on him.” An instruction on “provoking the difficulty” is proper if that version of the facts showing the complainant made the first attack also would permit the jury to conclude that the defendant provoked this attack. Smith, 965 S.W.2d at 514 (“Absent any evidence that an act or words of the defendant caused the attack on him, the case merely involves the question of which of the two parties used unlawful force.”) (citing Dirck, 579 S.W.2d 198).
More significantly, Smith relaxed application of the traditional rule by rejecting the suggestions of some prior decisions that “where there is no evidence of what specific act or words were used to provoke the difficulty, the State necessarily is unable to prove [the defendant did some act or used some words that provoked the attack on him].” Smith, 965 S.W.2d at 515. Instead, it observed:
The better reasoned opinions did not find it to be essential that there be conclusive evidence as to what the act or words which caused the provocation actually were; the jury did not need to be able to put its hands on the particular act or words which resulted in the attack. Rather, the jury must merely be able to find that there was some provoking act or words.
Smith, 965 S.W.2d at 515. The evidence may be circumstantial. Therefore–
[i]f the evidence allows an inference beyond a reasonable doubt that the victim attacked the defendant in response to something the defendant did or said, this will be sufficient to allow the jury to find [the defendant did some act or used some words that provoked the attack on him].
Smith, then, suggests that trial judges should be more willing than has traditionally been the case to submit “provoking the difficulty” instructions despite the rule that such instructions are improper if the only factual issue is who made the “first attack.” Circumstantial evidence of “provoking the difficulty,” even if it is not specific as to the provoking words or acts, is enough for juries to find a complainant’s “first attack” was provoked and thus the defendant had no right of self-defense.
Raising Whether Defendant’s Provocation Was Reasonably Calculated to Provoke Attack. As to when a jury issue is raised concerning the second requirement–reasonableness– Smith explained:
An act is reasonably calculated to cause an attack if it is reasonably capable of causing an attack, or if it has a reasonable tendency to cause an attack. Some provoking acts or words can by their own nature be legally sufficient to support a jury finding. See, e.g., Bateson v. State, 46 Tex. Crim. 34, 80 S.W. 88, 93 (1904) (“if the jury believed that appellant called deceased a son of a bitch, this would certainly be sufficient to provoke an assault by deceased.”). Alternatively, the act or words taken in conjunction with the relations of the parties and other circumstances surrounding the difficulty can provide the basis for such a finding. Tate v. State, 35 Tex. Crim. 231, 33 S.W. 121, 123 (1895) (“we can appeal to the antecedent acts and conduct of the parties”). The question of whether an act or words were reasonably calculated to cause an attack is a question of fact for the jury to resolve. As above, whether an act is reasonably calculated to cause an attack can be determined from circumstantial evidence.
Smith, 965 S.W.2d at 518 (some citations omitted).
Raising Whether Defendant’s Provocation Was “Intentional.” In Elizondo, the court of criminal appeals held that this third element was carried forward into the current “provoking the difficulty” instruction from the common law. Elizondo, 487 S.W.3d at 200-201. In order to support the giving of a “provoking the difficulty” instruction in the jury charge, there has to be evidence raised from which a rational jury could find, beyond a reasonable doubt, that the defendant possessed an intent to provoke so he would have a pretext to harm the victim under a guise of self-defense. Elizondo, 487 S.W.3d at 201. Ordinarily, as explained in Smith, whether the defendant’s provocation was made with the required intent is a jury question. Only in “exceptional and extraordinary situations” is evidence of intent so lacking that “the jury is prevented from considering the question of what the defendant’s intent was in provoking an attack from the deceased.” Smith, 965 S.W.2d at 519.
Nevertheless, in Elizondo, even after acknowledging this language from Smith, the court of criminal appeals refused to allow just any evidence to show that the third element had been established. The court stated, “Although a jury can rely upon wholly circumstantial evidence to find provoking acts or words, such evidence must create more than a suspicion because juries are not permitted to reach speculative conclusions.” Elizondo, 487 S.W.3d at 203. See Engel v. State, 630 S.W.3d 192, 201 (Tex. App.–Eastland 2020, no pet.) (a rational jury could have inferred from the context of the relationship between the defendant and the victim, combined with their recent physical altercation and the defendant’s statements referencing future physical harm to the victim, that the defendant was aware that the victim would react in a way that would require the defendant to use the weapon that he had brought to the confrontation).