Banks v. State

656 S.W.2d 446, 1983 Tex. Crim. App. LEXIS 1068

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

After finding appellant guilty of the offense of murder, the jury assessed punishment at fifteen years. The conviction was affirmed by the Court of Appeals. Banks v. State, 624 S.W.2d 762 (Tex.App. 14th Ct. of App.1981). We granted appellant’s petition for discretionary review in order to review the Court of Appeals’ holdings: (1) that appellant could not complain of the trial court’s refusal to give his requested charge on his right to arm himself and seek an explanation since appellant invited any error in such refusal by requesting the charge given on provoking the difficulty and (2) that there was no evidence to support a charge on appellant’s right to arm himself and seek an explanation.

The Court of Appeals’ opinion recognized that we have held that once a charge of self-defense is limited by a provoking the difficulty instruction the trial court is obligated to also charge on a defendant’s right to carry arms to the scene of the difficulty and to seek an explanation where supported by the evidence. Gassett v. State, 587 S.W.2d 695 (Tex.Cr.App.1979). The Court of Appeals reasoned that since appellant asked for the charge on provoking the difficulty, normally “thought of as a prosecution charge,” he could not complain of the court’s failure to include the requested charge.

We find that the concurring opinion in the court of appeals correctly reasoned that any error in failing to give the requested instruction was not invited by appellant’s request of a charge on provoking the difficulty. As noted in the concurring opinion the cases relied on in the opinion, Stiles v. State, 520 S.W.2d 894; Cadd v. State, 587 S.W.2d 736 (Tex.Cr.App.1979) and Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977) were all instances where the defendant was complaining of a charge which had been given at the defendant’s behest as contrasted to a court’s refusal to give a particular charge or a portion thereof. The fact that appellant may have requested a provoking the difficulty charge in no way prevented him from complaining of the trial court’s failure to give his requested instruction on his right to arm himself.

Appellant testified in his own behalf, admitting that he shot the deceased, but claiming that he acted in self-defense when the deceased turned toward him. Appellant related that he and the deceased had been engaged in a feud for some time, and the deceased had constantly “bullied” and “picked on” him. He further testified that he was afraid that deceased “would have jumped on me and beat me up” if he had not taken a pistol with him when he went to ask the deceased to return his money. According to appellant, his sole reason for seeking out the deceased was to get his money back, and that he had no intention of killing him nor did he approach the deceased with the thought of provoking him so that he could kill the deceased.

In Gassett v. State, supra, complaint was made of the trial court’s refusal to grant the defendant’s requested charge on the right to carry arms to the scene of the difficulty where the court’s charge on self-defense had been qualified by a charge on provoking the difficulty. We found our opinion in Young v. State, 530 S.W.2d 120 (Tex.Cr.App.1975) to be dispositive. In Young it was stated:

. it is equally well settled that if the court’s instruction limits the accused’s right of self-defense by a charge on provoking the difficulty, then the jury should be advised in a proper instruction under the facts that the accused’s right of self-defense would not necessarily be abridged by the fact that he carried arms to the scene of the difficulty if such instruction is supported by the evidence.”

As in Gassett, we do not hold that appellant’s testimony required the jury to accept his version of the facts. We merely hold that the evidence introduced was sufficient to require the requested additional instruction to ameliorate the limitation imposed upon his right of self-defense by the charge on provoking the difficulty, without regard to who requested the charge on provoking the difficulty.

The judgment of the Court of Appeals is reversed. The cause is remanded to the trial court for a new trial.