July-August 2016

Provoking the difficulty: a limitation on the right to self-defense

Jessica Akins

Assistant District Attorney in Harris County

In a recent murder case, Elizondo v. State, the Court of Criminal Appeals addressed jury charge error in the context of self-defense and provocation. Upon the State’s request, the trial court limited the defendant’s assertion of self-defense, but the Court of Criminal Appeals held this to be harmful error. Consequently, the defendant is getting a new trial.  
    In the summer of 2010, defendant Jose Elizondo, accompanied by his wife and brother, went to the Punto 3 nightclub in Mission. Elizondo, a U.S. Customs and Border Protection agent, got into an altercation with the owner of the nightclub, Fermin Limon, and some of the security personnel. During the quarrel, Elizondo was able to escape outside to his truck, where he was followed by three men. He got into a physical fight with them and at some point retrieved his handgun. Limon approached Elizondo during this time, also armed with a handgun. Elizondo shot Limon and claimed self-defense. The jury found Elizondo guilty of murder and sentenced him to 25 years’ imprisonment.
Self-defense and deadly force
Under §9.31 of the Texas Penal Code, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect him against the other person’s use or attempted use of unlawful force. With regard to deadly force, §9.32 provides that a person is justified in using deadly force against another if he would be justified in using force under §9.31, and when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force.   
    A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. But a defendant may forfeit his right to self-defense.

Provoking the difficulty
Provoking the difficulty, as the doctrine of provocation is commonly referred to, 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 legalese that simply translates to “provoked the attack.” The concept has its roots in common law, founded upon the theory of estoppel and based on the legal tenet that a man may not take advantage of his own wrong to gain favorable interpretation of the law.  
    The State is not entitled to a jury charge on provocation precluding the assertion of self-defense unless there is sufficient evidence that:
1) the defendant did some act or used some words that provoked the attack on him;
2) such act or words were reasonably calculated to provoke the attack; and
3) the act was done or words were used for the purpose of and with the intent that the defendant would have a pretext for inflicting harm upon the other.  
    An instruction on provocation should be given only when there is evidence from which a rational jury could find all three of the provocation elements beyond a reasonable doubt. If the facts do not support including an instruction on provoking the difficulty, a trial court errs by submitting it to the jury, because it has limited the defendant’s right of self-defense.
    The Court in Elizondo cautions trial courts that they are not to make assessments regarding witnesses’ credibility or strength of the evidence, nor encroach on the jury’s role as factfinder. The standard for provoking the difficulty simply requires the trial judge to determine whether evidence has been presented that could support a jury’s finding of all three elements of provocation beyond a reasonable doubt.    

Murder or self-defense?
Like any good whodunit, there are six versions of what happened at the Punto 3 nightclub. Don’t worry—they will be summarized for our purpose here: to critically look at the evidence and see where the State and the trial judge made the wrong call on provoking the difficulty.   
     Two men who worked bar security at the nightclub testified at trial. They recalled that Elizondo’s wife was causing a scene with another woman inside the bar and then tried to take her drink outside. The owner’s son, Junior, tried to facilitate her leaving the bar, but she was belligerent and disrespectful to him. This prompted Elizondo, as well as the security officers, to get involved.
    According to the security officers, there was a physical scuffle between them and Elizondo, and then he ran to his truck. The security guards claimed that once they figured Elizondo was going for a gun, they backed away and only Junior approached his truck, banging on the window and demanding that Elizondo exit the vehicle. They testified that they saw Elizondo get out of the truck and hit Junior in the head with a handgun. They tried to get the gun away from Elizondo but were unsuccessful. This is where the victim, Fermin Limon, enters the story.
    Limon, concerned about Elizondo’s treatment of his son, ap-proached Elizondo carrying a handgun. The security guards characterize his approach as peaceful, with a goal of conflict resolution. They attribute these statements to the parties:
Limon: “Hey, calm down. Let’s settle this problem.”
Elizondo: “Get to the ground, son of a bitch. Get to the ground … you dog.”
    Before Limon could respond, Elizondo shot him. Both security guards saw Limon carrying a gun and gesturing with his other hand, but only one of them testified Limon pointed his gun at Elizondo.
    Junior testified he had gotten into a verbal altercation with Elizondo and his wife and that afterward, he saw Elizondo run toward his car and heard him yell, “Vas a ver” in Spanish, which translates to, “You will see.” Junior followed Elizondo to his vehicle and testified that he merely tapped on the vehicle to get the defendant’s attention. The next thing Junior knew, he was being beaten, but he wasn’t sure by whom. Junior initially told police he saw his father approach Elizondo and pull out a gun, but he conceded at trial he did not see this—he only heard gunshots.        
      Elizondo, his brother, and his wife testified at trial as well. In their version of the initial altercation, Junior pushed Elizondo’s wife and was aggressive with her for no reason, prompting Elizondo to get involved. The security guards intervened, forcing Elizondo to flee to his truck—this fact is consistent among all the parties. Elizondo tried to escape the men by getting into his truck, but Junior opened the door and forced him back out. When he saw Limon approaching with the gun, he claimed that he twice yelled out to Limon, “U.S. Customs—drop your weapon.” This was corroborated by both Elizondo’s wife and brother. Limon did not lower his weapon. Elizondo testified he was convinced Limon was about to shoot him, so he fired two shots at him in self-defense.     
    There was more shooting going on than any of the witnesses admitted. Four shell casings were recovered from Elizondo’s .40 caliber handgun, and five shell casings were recovered from Limon’s 9-millimeter handgun. The officer initially at the scene noted that he did not find Elizondo’s self-defense story very credible in that he did not look physically roughed-up.     
The jury instruction
The Court of Criminal Appeals held that based upon the facts of this case, the trial court erred by including the “provoking the difficulty” jury instruction limiting the defendant’s assertion of self-defense because he provoked the attack. The Court recognized there was sufficient evidence of the first two elements; a reasonable jury could have believed Elizondo’s acts or words (intervening in the altercation with his wife, scuffling with security, yelling out about future violence while running to his car to retrieve his weapon, and hitting Junior with his handgun) did in fact provoke or were reasonably likely to provoke the attack.
    However, the Court drew the line on the third element: evidence that Elizondo’s acts or words were executed for the purpose and with the intent that Elizondo would have a pretext for inflicting harm upon Limon. The Court acknowledged that intent may be inferred from words, acts, and conduct occurring before, during, and after the provocation, but Elizondo did not know Limon and did not seek him out. There was no evidence that Elizondo initiated the argument as a ruse to get Limon to attack him so he would have reason to kill Limon in self-defense. And similarly, there was no evidence that by running to his truck, Elizondo was goading Limon into following him and attacking him. Simply put: There was no evidence that Elizondo orchestrated a set of events as a ploy to kill Limon, a man he did not know. Thus, there was no evidence of the third element of provocation.        

Every trial judge of any experience knows that submitting a charge to a jury on provocation is fraught with difficulty and that the chance of error is great. The Court of Criminal Appeals has wrestled with the notion of provoking the difficulty since 1908. It’s not a simple concept. The next time you have a murder case where provocation may apply, reviewing cases where an instruction on provoking the difficulty was properly included, in addition to Elizondo, will guide you to a correct charge.


[1] Tex. Penal Code §9.31(a).

[2] Tex. Penal Code §9.32(a)(1); Tex. Penal Code §9.32(a)(2)(A).

[3] Elizondo v. State, No. PD-1039-14, 2016 WL 1359341 *6 (Tex. Crim. App. April 6, 2016).

[4] Tex. Penal Code §9.31(b)(4) (the use of force against another person is not justified if the person provoked the other person’s use or attempted use of unlawful force).

[5] Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998).

[6] Elizondo, 2016 WL 1359341 at 8.

[7] Smith, 965 S.W.2d at 513; Elizondo, 2016 WL 1359341 at 8 (all of these elements are questions of fact).

[8] Id.

[9] Id.

[10] Elizondo, 2016 WL 1359341 at 6.

[11] Id.

[12] There is a good discussion about the lower court’s mistaken reliance on the issue of abandonment in the context of the provocation elements. Elizondo, 2016 WL 1359341 at 8-11.  

[13] Dirck v. State, 579 S.W.2d 198, 203 n. 5 (Tex. Crim. App. 1979).

[14] Young v. State, 110 S.W. 445, 447 (Tex. Crim. App. 1908) (there is some uncertainty, if not confusion, in the books in respect to the doctrine of provoking a difficulty); Flewellen v. State, 204 S.W. 657, 664 (Tex. Crim. App. 1918) (Morrow, J., dissenting) (there is often great difficulty in determining just when a combination of facts justifies a charge on the law of provoking a difficulty). 

[15] Smith, 965 S.W.2d at 520 (trial court properly submitted the issue of provoking the difficulty); Matthews v. State, 708 S.W.2d 835 (Tex. Crim. App. 1986) (evidence was sufficient to raise the issue of provoking the difficulty as a limitation to the defendant’s right of self-defense); Juarez v. State, 961 S.W.2d 378 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (charge on provoking the difficulty as limitation on self-defense was properly given).