Behave Yourself

[Eric Lamberson]

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 attack 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 of provocation—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 shotgun 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 justifying 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)

[The Annoyed Man]

Welcome to the forum. Not trying to be rude, but what is your point?

[Javier730]

Welcome to the forum. Not trying to be rude, but what is your point?

Wondering the same.

[Taypo]

Welcome to the forum. Not trying to be rude, but what is your point?

Wondering the same.

Personally, I always find a "Hey, how ya doing?" to be more effective than climbing on a pulpit when introducing myself

[R DAVIS]

I think he is making the point that if you flip someone OFF, and it flips them OUT, that might be considered provocation in a court of law. Probably something to remember in these days of anger and road rage. Carrying has made me a more considerate driver, and more polite person all around.

For what it's worth, the middle finger jerk was so popular among the Romans that they even gave a special name to the middle digit, calling it the impudent finger: digitus impudicus.

[Javier730]

I think he is making the point that if you flip someone OFF, and it flips them OUT, that might be considered provocation in a court of law. Probably something to remember in these days of anger and road rage. Carrying has made me a more considerate driver, and more polite person all around.

For what it's worth, the middle finger jerk was so popular among the Romans that they even gave a special name to the middle digit, calling it the impudent finger: digitus impudicus.

I'm sure no one here is going out and flipping the bird at people who upset them. Not saying all people with chls behave themselves but I'm sure if the was a lot of people who had chls and they somehow provoked someone and drew on them, we would hear about it in the media. I've heard more shark attacks on the news this year than possibly provoked shootings from chlers. Actually I haven't heard any possibly provoked chl shootings that happened this year. They are probably more rare than shark attacks, which are supposedly quite rare.

[R DAVIS]

I think he is making the point that if you flip someone OFF, and it flips them OUT, that might be considered provocation in a court of law. Probably something to remember in these days of anger and road rage. Carrying has made me a more considerate driver, and more polite person all around.

For what it's worth, the middle finger jerk was so popular among the Romans that they even gave a special name to the middle digit, calling it the impudent finger: digitus impudicus.

I'm sure no one here is going out and flipping the bird at people who upset them. Not saying all people with chls behave themselves but I'm sure if the was a lot of people who had chls and they somehow provoked someone and drew on them, we would hear about it in the media. I've heard more shark attacks on the news this year than possibly provoked shootings from chlers. Actually I haven't heard any possibly provoked chl shootings that happened this year. They are probably more rare than shark attacks, which are supposedly quite rare.

The OPs post was simply a statement of fact regarding the law, and its potential effect on the self defense claim. My post was simply a statement of my view on his post.

Nobody is accusing you or anyone else on this board of any wrongdoing. I don't understand why you take exception to it.

[The Annoyed Man]

I think he is making the point that if you flip someone OFF, and it flips them OUT, that might be considered provocation in a court of law. Probably something to remember in these days of anger and road rage. Carrying has made me a more considerate driver, and more polite person all around.

For what it's worth, the middle finger jerk was so popular among the Romans that they even gave a special name to the middle digit, calling it the impudent finger: digitus impudicus.

I'm sure no one here is going out and flipping the bird at people who upset them. Not saying all people with chls behave themselves but I'm sure if the was a lot of people who had chls and they somehow provoked someone and drew on them, we would hear about it in the media. I've heard more shark attacks on the news this year than possibly provoked shootings from chlers. Actually I haven't heard any possibly provoked chl shootings that happened this year. They are probably more rare than shark attacks, which are supposedly quite rare.

The OPs post was simply a statement of fact regarding the law, and its potential effect on the self defense claim. My post was simply a statement of my view on his post.

Nobody is accusing you or anyone else on this board of any wrongdoing. I don't understand why you take exception to it.

Don't make me pull this car over!

[MechAg94]

It is a reminder that a person's behavior leading up to a confrontation is important as well as what actually happened. I think most would see that as common sense, but I think a reminder is appropriate. Even little things can be defined as escalation in some cases.

[The Wall]

What's good about these forums is nobody can see you giving them the finger. Maybe a smiley needs to be added.

[Javier730]

My post was simply a statement of my view on his post.

My post was also simply a statement of my view to his and your post.

Nobody is accusing you or anyone else on this board of any wrongdoing.

I never said you were accusing anyone of anything. Again, I was just stating my opinion.

[Abraham]

Who's on first?

[The Annoyed Man]

Who's on first?

That's right.

And What's on second, I Don't Know's on third, Why's in left field, Because is in center field, Tomorrow's pitching, Today's catching. As for short stop, I Don't Give A Darn".

[Charles L. Cotton]

The Matthews case is interesting and somewhat distressing in that the majority of the court did not follow Texas law in affirming the conviction. The dissenting opinion authored by Justice Teague joined by Justice Clinton clearly pointed out the error of the majority's rationale and analysis. This was is a great example of "bad facts make bad law."

Overall, I agree with the analysis of the OP. I also strongly agree with his overall message which I interpret to be "don't let your mouth or your actions deprive you of your right to self-defense." That said, I am not at all sure that minor acts such as "flipping someone off" would deprive one of the right of self-defense. (Remember, as a result of the Heller opinion, self-defense is now a recognized constitutional right, rather than merely a codified justification.)

It's also important to understand that the only provocation that deprives one of the right of self-defense is the provocation, if any, that started the "difficulty" as the courts state. So if the deceased started the "difficulty," provocation by the defendant is not an issue in the case. This is true even if the defendant/shooter did something that would have risen to the level of provocation after the "difficulty" had begun. This is the law, but beware; the Matthews court ignored the law as noted in the dissent.

I can't post a link to my legal research results because it would violate the user agreement, plus you couldn't access it anyway. However, here is a public link to Matthews v. State so you can see what I mean about "bad facts make bad law." The dissent pointed out the result-oriented analysis by the majority.

I smell a seminar coming on.

Chas.

[Eric Lamberson]

Mr Cotton:

I appreciate the thoughtful response. My research leads me to believe the courts can establish the provocation threshold fairly low. One case indicated that insulting or cursing someone was sufficient; another found that calling someone an inappropriate name crossed the line into provocation. My experience leads me to believe this is often not well understood in the CHL community.

I do apologize if I have posted something inappropriate. Unfortunately I do not have time for one-liners and other silliness.

Eric