Texas-Book-Gun Law Armed And Educated - Flipbook - Page 192
NO JUSTIFICATION FOR PROVOKING ANOTHER PERSON
TEX. PENAL CODE § 9.31(b)(4)
The use of force against another is not justified if the actor
provoked the other’s use or attempted use of unlawful force.
What does it mean to provoke an attack so as to lose your right
to self-defense presumptions? At the time of writing, there are
no appellate cases directly interpreting this issue under Texas
Penal Code Sections 9.31 and 9.32. However, Texas’s highest
criminal court, the Court of Criminal Appeals, generally defined
what it means to provoke an attack. The Court held that a person
who provokes an attack loses the legal right of self-defense (so
certainly any legal presumption would be lost as well) when three
requirements are met:
1) a person must do some act or use some words which provoke
the attack;
2) the act or words from a person must be reasonably calculated to
provoke the attack; and
3) a person’s action or the words used must have been used for
the purpose and with the intent that the defendant would have a
pretext for inflicting harm on the other.
See Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998).
What the Smith Court is saying is that a person cannot effectively
“bait” another person into a violent confrontation and then hide
behind the law by claiming that their (the provocateur’s) conduct
should be presumed reasonable because the other fellow took the
first swing! While the Court is considering protection in a different
context, courts in the future will likely use this opinion with
When Can I Legally Use My Gun: Part II | 181
