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Behave Yourself
If your emotions get the best of you and you do or say something that provokes an attack, you may subsequently find yourself in front of a judge and jury explaining your actions.

I’m certain that many of us have had that unfortunate, involuntary muscle spasm which results in our middle finger being upraised while the other fingers remain folded.  If this unfortunate occurrence results in a confrontation with another and the subsequent course of events results in a criminal charge for assault or worse, we may not have the right to invoke self-defense. Oops!

Texas law has the legal doctrine of provoking the difficulty, a concept in criminal law that acts as a limitation or total bar on your right to self-defense under certain circumstances. The phrase “provoking the difficulty” is a legal term in Texas law that dates back to the 1800’s and in modern use more accurately translates to “provoked the attack.” Texas courts have held that if the defendant provoked an attack in order to have a pretext for killing another under the guise of self-defense, the defendant forfeits his right of self-defense. -1-

Texas courts provide jury instruction on the charge of provoking the difficulty when 3 things are at issue: (1) self-defense, (2) there are facts in evidence which show that the deceased made the first attack on the defendant, and (3) the defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury upon the deceased.

The provocation charge has 3 elements that must be met before a requirement for a jury instruction of provoking the difficulty:  (1) that the defendant did some act or used some words which provoked the attack, (2) the defendant’s act or words were reasonably calculated to provoke the attack, and (3) the defendant’s intent was to create a pretext for inflicting harm upon the other. -2-

Let’s examine each of these elements.

First, you must have done or said something that started the incident. Texas courts hold that the jury may conclude that this element is satisfied if evidence allows an inference beyond a reasonable doubt that the victim attacked you in response to something you did or said.

The second element is that your acts or words must have been reasonably calculated to provoke the attack. An act is reasonably calculated to cause an attack if it is capable of causing an attack or if it has a tendency to cause an attack.  Some provoking acts or words can by their own nature be legally sufficient to support a jury finding—a misbehaving middle finger for example.  This requirement is important because it ensures that you will not lose your right of self-defense over some act or statement that caused an unwarranted attack.  You may inadvertently provoke someone to attack you even though you have no intention of provoking an attack.  Under these circumstances, in Texas you will not lose your right of self-defense. -3-  

The third element requires some evidence that you intended your act or words to create a pretext in order to kill the victim as some larger plan that later included a claim of self-defense. Again, Texas courts hold that even though you do or say something that does indeed provoke an attack, if you did not intend for your act to have such an effect as part of a larger plan of doing another harm, then you do not lose your right of self-defense. Proving intent can be very challenging; however, the jury could conclude that some provoking acts may be of such a character as to carry the inference of intent—such as walking toward someone with a rifle after you have had an argument. -4-

If your emotions get the best of you and you do or say something that provokes an attack even though your behavior was not part of some devious plot, you can still have difficulty claiming self-defense.  The justification for the use of force outlined in Texas Penal Code Sections 9.31 and 9.32 address the issue of provocation.  Specifically, section 9.31.b states that if you provoke someone, your use of force is not justified unless you subsequently abandon the encounter or clearly communicate to the other person(s) your intent to do so reasonably believing you cannot safely abandon the encounter; and the person(s) nevertheless continues or attempts to use unlawful force against you.  Of course, the take away from all of this is to behave yourself. Anytime your emotions take control in a confrontation with another person, you may subsequently find yourself in front of a judge and jury explaining your actions.  

-1- Matthews v. State, 708 S.W.2d 835, 837-38 (Tex.Cr.App.1986);  

-2- Court of Criminal Appeals of Texas, Jerry Lee SMITH, Appellant, v. The STATE of Texas, No. 1556-96.

-3- Mason v. State, 88 Tex.Crim. 642, 228 S.W. 952, 954-55 (1921).

-4- Ralph MUCKLEROY, Jr., v. The STATE of Texas 310 S.W.2d 315 (1957)