Banks v. State

• Decision Date: 15 June 1983
• Docket Number: No. 066-82,066-82
• Citation: 656 S.W.2d 446
• Parties: Michael Joseph BANKS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 446

656 S.W.2d 446

Michael Joseph BANKS, Appellant, v. The STATE of Texas, Appellee.

No. 066-82.

Court of Criminal Appeals of Texas,

En Banc.

June 15, 1983.

Rehearing Denied Sept. 14, 1983.

Dick DeGuerin, Lewis Dickson, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Joan Fisher and R.P. Cornelius, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

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.

McCORMICK, Judge, dissenting.

Because the majority fails to address the overriding issue in this cause, I must dissent. The majority, despite the clear legislative expression to the contrary, continues to follow the Code of the West and proliferate the romantic notion that everyone in Texas can tote his .45 and settle his differences at high noon on main street.

Though I run the risk of being forever ostracized by the purveyors of Texana, I must advocate the abolition of the charge on a defendant's right to carry arms to the scene of the difficulty and to seek an explanation of differences. We should wait no longer to be dragged, kicking and screaming, into the twentieth century; we should make the expedition voluntarily. The Legislature recognized this with the passage of the new Penal Code in 1973. After ten years, this Court should now give proper meaning to those intendments.

The right of a defendant to arm himself and seek an explanation or discussion concerning his differences with the deceased has its genesis in Texas jurisprudence in the case of Cartwright v. State, 14 Tex.App. 486 (1883). This "right" was first fully stated eleven years later in Shannon v. State, 35 Tex.Cr.R. 2, 28 S.W. 687 (Tex.Cr.App.1894). The right has not been provided for by either the Constitution or statutes of the State. It has survived continually as part of the court made law for one hundred years, despite its apparent legislative interment in 1973.

The passage of the new Penal Code in 1973 brought with it many changes in the substantive criminal law of this State. But none were more drastic than the changes made in the law of justification. ¹ For the first time, the defense of necessity was firmly established in the criminal law of Texas. For the first time, the law restricted the right of a person to resist an unlawful arrest by the use of force. The restriction on the right of self-defense known as provoking the difficulty was codified for the first time. Mutual combat was likewise statutorily recognized for the first time. And perhaps even more directly affronting the western heritage, a man was required to retreat for the first time.

The commentators all recognized that these changes were designed to remove the street as the forum for determining the differences of parties, and place disputes where they belonged: in the courthouses of the State. The Legislature having codified the law of self-defense, the conclusion is inescapable that their failure to include the right to arm oneself was a refutation of a rule they found repugnant to the times. ² This philosophy is not new:

"It will doubtless work a great improvement on the moral and social condition of men, when every man shall come fully to understand that, in the great social compact under and by which states and communities are bound and held together, each individual has compromised the right to avenge his own wrongs, and must look to the state for redress. We must not go back to that state of barbarism in which each claims the right to administer the law in his own case; that law being simply the domination of the strong and the violent over the weak and submissive.

"It is useless to talk about personal liberty being infringed by laws such as that under consideration. The world has seen too much licentiousness cloaked under the name of natural or personal liberty; natural and personal liberty are exchanged, under the social compact of states, for civil liberty." ³

Such was the description given by Justice Walker in discussing the effect of the act of April 12, 1871, regulating, and in certain cases, prohibiting, the carrying of deadly weapons. In upholding these statutes against a charge that they infringed upon the constitutional right of the people to keep and bear arms, Justice Walker pointed out that the other states of the Union had such laws and that Texas was just coming of age and was at the point where its enactment was justified:

"This law is not peculiar to our own state, nor is the necessity which justified the enactment (whatever may be said of us to the contrary) peculiar to Texas. It is safe to say that almost, if not every one of the states of this Union have a similar law upon their statute books, and indeed, so far as we have been able to examine them, they are more rigorous than the act under consideration. Other older states have been better able to carry out these laws than we have yet been, and the laws perhaps themselves have been less repugnant to the people of those states, than our law has been to a class of our own people." English, supra, at 479.

Justice Walker concluded:

We do not think the people of Texas are so bad as this, and we do think that the latter half of the nineteenth century is not too soon for Christian and civilized states to legislate against any and every species of crime.... We will not say to what extent the early customs and habits of the people of this state should be respected and accommodated, where they may come in conflict with the ideas of intelligent and well-meaning legislators." English, supra, at 479-480.

I believe the Legislature intended in 1973 to abolish that portion of the law which allowed a person to arm himself and seek...