Tave v. State

620 S.W.2d 604, 1981 Tex. Crim. App. LEXIS 1116

• Court: Court of Criminal Appeals of Texas
• Decided: July 22, 1981
• Docket: 60697
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for murder. V.T.C.A., Penal Code Sec. 19.-02(a)(1). Punishment was assessed at life imprisonment.

Appellant contends that the evidence is generally insufficient to support the conviction; however, he does not grace us with references to the record or citations to authority in support of this ground of error. See Phillips v. State, 511 S.W.2d 22, 26 (Tex.Cr.App.). Our review of the record satisfies us that sufficient evidence was presented to support the conviction.

Appellant has, however, preserved reversible trial error in this cause.¹ He contends that the trial court erred in limiting his self-defense charge with an instruction on “provoking the difficulty.” The State’s theory of this case was that appellant shot the deceased without any provocation whatsoever. The appellant testified that he shot the victim after the victim assaulted him. He testified that this transaction with the deceased arose after he was involved in an argument with a third person.

If not called for by the facts, a charge on provoking the difficulty constitutes an unwarranted limitation on the right of self-defense. Dirck v. State, 579 S.W.2d 198, 203 (Tex.Cr.App.); Garcia v. State, 522 S.W.2d 203, 206 (Tex.Cr.App.). This charge is applicable in those cases in which the first attack is made by the deceased, but is induced by words and conduct of the accused reasonably calculated and intended to provoke an attack which may be used by his as an occasion for doing harm to his adversary. Dugan v. State, 86 Tex.Cr.R. 130, 216 S.W. 161, 164; see also Howle v. State, 119 Tex.Cr.R. 17, 43 S.W.2d 594, 595.

From our review of the entire record we find no evidence establishing words or conduct of appellant reasonably calculated and intended to provoke an attack which may be used by the appellant as an occasion to kill his adversary. Rather, even accepting the State’s theory completely, we find that the instruction was completely unwarranted since the State’s case established that the killing of the deceased was completely unprovoked.

The judgment is reversed and the cause remanded.

1 . Although the State contends that appellant presented no objection to the charge, a review of the record reveals such an objection sufficient to preserve error under Dirck v. State, 579 S.W.2d 198, 202-03.