Smith v. State

• Decision Date: 18 March 1998
• Docket Number: No. 1556-96,1556-96
• Citation: 965 S.W.2d 509
• Parties: Jerry Lee SMITH, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 509

965 S.W.2d 509

Jerry Lee SMITH, Appellant, v. The STATE of Texas.

No. 1556-96.

Court of Criminal Appeals of Texas En Banc.

March 18, 1998.

Brian W. Rice, Houston, for appellant.

Keli Jane Roper, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

WOMACK, Judge, delivered the opinion of the court in which McCORMICK, Presiding Judge, and MEYERS, MANSFIELD, KELLER, PRICE and HOLLAND, Judges, join.

We granted review in this case to resolve some conflicts in our opinions on that aspect of the law of self-defense known as the doctrine of provocation or provoking the difficulty.

On an indictment for murder, a jury convicted the appellant of voluntary manslaughter and sentenced him to eighteen years imprisonment. At trial, the evidence raised the issue of self-defense, and the jury was charged accordingly. Over the appellant's objection, the trial court's charge on self-defense included the law on the issue of provocation. The Fourteenth Court of Appeals affirmed the appellant's conviction. Smith v. State, 932 S.W.2d 304 (Tex.App.--Houston [14th Dist.] 1996). The appellant argues that, in holding that there was evidence of provocation, the Court of Appeals failed to follow some of our opinions. We shall affirm.

The appellant met the victim, Charlie Taylor, at the Character Club on April 1, 1994. The victim had gone there with Susan Phillips and her boyfriend John Prader. Phillips lived in the victim's apartment when he worked offshore. The appellant was there with his girlfriend, Marcia Montgomery, who knew Phillips. The appellant and the victim played pool, and everyone drank beer. After Phillips and Prader left, the victim got a ride home. The appellant and Montgomery testified that the victim rode with them. Sadie Fuselier testified that she gave the victim a ride home. (The Court of Appeals called Fuselier the victim's "girl friend." Smith v. State, 932 S.W.2d at 305. Our reading of the record is that Fuselier acknowledged acquaintance with the victim, but denied a romantic relationship with him.) All the witnesses agreed that all six people ended up at the victim's apartment. They did not agree on the relevant events thereafter.

Sadie Fuselier testified that she and the victim were in the living room, and the appellant and Montgomery were in the kitchen smoking crack cocaine, when the appellant and the victim started arguing. Fuselier stated that she did not have an argument or exchange words with the appellant. She could not say what the argument between the appellant and the victim was about, but she recalled the appellant's asking the victim why he had left him at the club. During the argument Fuselier saw the victim approach the kitchen, take a knife from his pocket, put it on a counter which separated the living room from the kitchen, and return to his previous position of standing in front of the living room sofa. The victim never raised his voice or got upset, and had not threatened the appellant in any way. Fuselier testified that the appellant picked up the knife and walked over to the victim saying, "I'll stab you, I'll kill you." The appellant stabbed the victim, who bent over. The appellant then stabbed him at least once more. The victim fell to the floor and said, "Man, why did you do this?" The appellant replied, "I'll stab you again."

Susan Phillips testified that she was upstairs in the bathroom when she heard raised voices. She came down and saw the appellant come out of the kitchen and lunge toward the victim saying, "Take this."

John Prader testified that he was "pretty drunk" and watching television in the living room without really listening to what was taking place. When asked at trial if there was any argument, Prader answered, "I only heard something, something about a pipe," although he did not see anyone smoking crack cocaine. The first unusual thing he remembered was someone close, probably the appellant, saying, "What do you think of this?" Then Prader heard the sound of the stabbing, which he said he recognized because he used to help butcher hogs. The victim then said, "You made me bleed." After the stabbing the victim went to the front door and fell. Prader went out and saw the appellant at the gate. The appellant asked him if he had a pipe. Prader said he would get one, and then he ran around to the back of the house and hid.

According to Marcia Montgomery's version of the events, she and the appellant were in the kitchen when the trouble started. She and the appellant were not using crack cocaine, but the victim was smoking some in the kitchen. Fuselier, who was in the living room with some cocaine, "said something smart" and "egged on" the appellant until he "said something smart" in return, and "they just kept kind of mouthing off. And [the victim] got in it, and he started getting real loud and verbally abusive." Montgomery repeatedly urged the appellant to leave. As they started to leave Fuselier said, "You m_____-f______ bitch," and the appellant called her a bitch in return. The victim started cursing and shouting at the appellant. Fuselier and the appellant exchanged more words. The victim came up, pushed the appellant, and "went crazy. He just started screaming and hollering and talking about [Fuselier]. And that's when I saw him pull the knife out of his back pocket." The victim lunged at the appellant, and they struggled. Then the appellant and Montgomery left, with the victim bleeding and "still cussing and screaming and hollering" at them.

The appellant testified at trial on his own behalf. According to his testimony he and Fuselier got into a "confrontation." He did not remember who started it. "[W]e was talking about each other. We was using abusive language," and being loud. The victim "got to talking about don't be talking like that to her ." At that point the victim "was trying to go to just quiet down the noise. Then he, he said that I started it, and he got to talking to me. And then it just, it just escalated from there." The victim pushed the appellant, who pushed back. The victim then pulled his knife out of his back pocket. The appellant tried to take the knife, they "tussled," the victim was "cut," and the appellant got the knife. The victim started to approach the appellant again. The appellant testified, "I didn't know what [the victim] was going to do. So, I cut him again . All I was trying to do was keep him off me." The appellant agreed with the prosecutor that what started the "whole thing" was his and Fuselier's "talking trash" to each other.

It is undisputed that the appellant inflicted two stab wounds which penetrated the victim's heart and liver, and caused the victim's death. The appellant's theory was that he acted in self-defense.

The trial court charged the jury on the law of murder, on the lesser included offenses of voluntary manslaughter and involuntary manslaughter, and on the law of self-defense, including provocation. The appellant argues that the Court of Appeals was in error to hold that the provocation instruction was properly given, because there was insufficient evidence to raise the issue.

Provoking the difficulty, as the doctrine of provocation is commonly referred to in our jurisprudence, is a concept in criminal law which acts as a limitation or total bar on a defendant's right to self-defense. The phrase "provoking the difficulty" is a legal term of art, and more accurately translates in modern usage to "provoked the attack." The rule of law is that if the defendant provoked another to make an attack on him, so that the defendant would have a pretext for killing the other under the guise of self-defense, the defendant forfeits his right of self-defense. E.g., Matthews v. State, 708 S.W.2d 835, 837-38 (Tex.Cr.App.1986); Mason v. State, 88 Tex.Crim. 642, 228 S.W. 952, 954-55 (1921). Although we address the issue in terms of intent to kill the victim, the law equally applies to a forfeiture of right to self-defense of any degree of harm the defendant intends to inflict upon the victim. For instance, if the defendant employs provocation with intent to assault the victim, and provokes an attack and makes an assault, then self-defense is lost as to the assault. The common law was that if the defendant merely intended an assault, and ultimately must have killed the victim in self-defense, then the killing was "manslaughter" or "murder without malice." E.g., Jones v. State, 149 Tex.Crim. 119, 192 S.W.2d 155, 157 (1945). We do not today address this doctrine, also known as "imperfect self-defense."

Although it has been over a decade since we last wrote on the matter, this court has addressed the issue of provocation hundreds of times. Unfortunately, what was true in 1908 is still true today: "[T]here is some uncertainty, if not confusion, in the books in respect to the doctrine of provoking a difficulty." Young v. State, 53 Tex.Crim. 416, 110 S.W. 445, 447 (1908). "[T]here is often great difficulty in determining just when a combination of facts justifies a charge on the law of provoking a difficulty." Flewellen v. State, 83 Tex.Crim. 568, 204 S.W. 657, 664 (1918) (Morrow, J., dissenting). "[E]very trial judge of any experience knows that submitting such a charge to a jury is fraught with difficulty and the chance of error is great." Dirck v. State, 579 S.W.2d 198, 203 n. 5 (Tex.Cr.App.1979). "[T]he Court of Criminal Appeals, in scrutinizing jury charges on the doctrine, has sometimes lost sight of its underlying rationale." State Bar Comm. on Revision of the Penal Code, Texas Penal Code: A Proposed Revision -Final Draft, 91 (1970) (Committee Comment to Sec. 9.32).

The Court of Appeals relied on our opinion in Matthews v. State, 708 S.W.2d 835, 837-38 (Tex.Cr.App.1986), for the circumstances under which a charge on provoking the difficulty should be given. Smith v. State, 932 S.W.2d 304, 306...