Lead Opinion
OPINION
delivered the opinion of the Court in which
Appellant, Jose Guadalupe Rodriguez Elizondo, a U.S. Customs and Border Protection Agent, while off duty, shot and killed Fermín Limón Sr. Elizondo claimed
BACKGROUND — WITNESS TESTIMONY
On August 9, 2010, Appellant Jose Eli-zondo, his wife, Maria, and his brother, Juan, went to the Punto 3 nightclub around 12:45 a.m. Elizondo and his wife became involved in an altercation with the owner of the nightclub, Fermín Limón Sr. (“Limón Sr.”), his son, Fermiri Limón Jr. (“Junior”), and some of the nightclub’s security employees. At some point during the fray, and purportedly to escape his attackers, Elizondo ran to his white Dodge Ram pickup truck, which was parked almost 70 yards away. He was chased by three of the men. Elizondo then became involved in a physical struggle just outside the driver’s side of his truck. At that time he had his gun in his hand. Without warning, Limón Sr. approached Elizondo with a gun in his hand. Each man was pointing his gun at the other. Elizondo claims that he shot Limón Sr. in self-defense. The testimony regarding how these- events unfolded differs from witness to witness. As will become evident in our discussion of the legal issues raised, it is necessary to our analysis to set out the details of each witness’s version of events.
1. Francisco Garcia (Bar Security)
Francisco Garcia worked at Punto 3 as a general employee and security guard. Francisco testified that, at approximately 1:10 a.m., he was summoned by intercom and walkie-talkie to report to the bar section because a fight had broken out between two women. He, along with four other security guards, escorted two men and the two women who had been fighting to the nightclub’s exit. Just after Francisco returned to the stage area in the club, he was summoned outside “because a fight broke, out.” He saw people arguing— '“cussing and stuff.” He did not see anyone being punched. He testified that the “ball of people” kept moving across the parking lot toward two white pickup trucks, a Dodge Ram pickup and a Ford F-150 pickup parked next to it. The female in the group was “pulling a male like let’s go,” Francisco said that he saw a 'male-and female get inside the truck. No other witness testified that they saw Maria actually get into Elizondo’s truck.' Francisco said that'two other bar security guards, Bryan Cruz and Rigo Hernandez Carreon, had approached the vehicle along with Junior. They were “banging on the windows.” That’s when he heard Bryan say, “Run. There’s a gun.” Elizondo then got out of the truck and began striking Junior. The female, who was on the passenger side, also got out of the truck. The
2. Rodrigo Hernandez Carreon (Bar Security)
Rodrigo Hernandez Carreon (“Rigo”) testified with the aid of a court interpreter. Rigo worked at the Punto 3 nightclub as a general employee and security guard; The prosecution first questioned Rigo about his criminal record. Rigo is not a United States citizen. He has been deported several times, has served time in federal prison,, and has served time in state prison for drug offenses, burglary of a vehicle, and evading arrest. Rigo was working on the night of the incident and testified in detail about what he observed. Rigo testified that he grabbed a lady and took her outside “because she was throwing punches” at another woman. ■ When he was outside he saw that Limón Sr. had come outside to handle an.argument. Li-món Sr.,was talking to a man in a hat and a woman. These people turned out to be Elizondo and his wife, Maria. Rigo said that the woman “was being disrespectful to Junior.” She was saying things like, “idiot, stupid, sons of bitches.” Rigo testified that the woman was “kind of hysterical.” He said that “Junior disrespected her because it had already been about three or four times [that Junior had told the woman not to take her drink outside] and he had told her to stop.” When asked at what point did “the man with the cowboy hat get disrespectful” towards Junior, Rigo answered, “When Junior disrespected the woman.” Rigo then heard Elizondo say to Junior, “Well, son of a bitch, are you going to calm down or not,” and “Don’t disrespect my woman, you son of a bitch.” Rigo testified that Elizondo then “hit [Li-món Sr.] like this” (indicating that he hit him or pushed him). Rigo reacted by hitting -Elizondo with his open palm. Eli-zondo then kicked Rigo. Rigo testified that no one else was hitting Elizondo. Rigo said that a woman then grabbed him from behind saying, “Don’t hit him, stupid. Leave him alone.” Rigo clarified that all of this talking and yelling was done in
3. Fermín “Junior” Limón Jr. (Li-món Sr.’s Son)
Junior worked for the family business as a bartender. He testified that, on the night of the incident, his wife, who worked at the front counter, informed him that a woman (Maria) was trying to leave Punto 3 with an alcoholic drink. Junior claimed that he grabbed Maria’s arm in an effort to stop her from leaving the bar with her drink because the bar could get fined by the Texas Alcoholic Beverage Commission for allowing that. Junior said that he escorted Maria to the door and returned to
4. Juan Elizondo (Elizondo’s Brother)
Juan said that he and a friend met Eli-zondo and Maria at Punto 3 nightclub around 12:45 a.m. Juan testified that, while he was at the nightclub, he observed two girls fighting over “some guy,” so the girls were escorted out, and Juan was asked to go talk outside too. Elizondo had been with Juan at that time. After explaining the situation to Limón Sr., whom he thought was the head of security or a manager, Juan was allowed back inside the club, but .Elizondo did not come back inside with him. As soon as he entered, Juan noticed people running out of the club. He heard his sister-in-law, Maria, yelling, and when, he ran outside, he saw her “crying and yelling.” Juan said- Maria told him that Elizondo was.-, getting “beat up,” and he- saw Elizondo running, and there were “some guys after him.” Juan admitted during trial that, although the report he gave to the Sheriffs Office said that there were “at least three guys hitting at him,” he saw only one person take a
5. Maria Elizondo (Elizondo’s Wife)
Maria Elizondo testified through an interpreter. Maria testified that after they arrived at Punto 3, she saw her brother-in-law, Juan, go outside. She told Elizondo to go and check on his brother. She also testified that she saw two women fighting, but she stayed inside talking to a friend. When some people started throwing bottles, Maria said that she went to the bar entrance. Maria had a drink in her hand, and when she got close to the door, she heard a woman standing there saying, “This stupid lady doesn’t want to leave her drink behind.” Maria said that she set her drink down, and as she was walking back to the bar entrance, she said that a security guard arrived, grabbed her, and told her, “I know the woman [sic ] of your kind and get out,” and he pushed her outside. She testified that she asked him why he was pushing her and he told her he knew “women like [her]” and pushed her again. She said she got offended and identified Junior to her husband as the one who had pushed her. Maria said that Elizondo then asked Junior, “Why were you pushing my wife?” Maria said that Junior became “angry” and “aggressive.” She then testified that a security guard punched Elizon-do in the face, and Elizondo then “got loose and he ran.” Maria testified that there were “about six” men running after Elizondo “hitting him and hitting his feet from behind” yelling, “Stop asshole. Stop.” Maria said that when she got to the truck she saw five men there, and Elizondo had a pistol. She saw that one of the “five men” also had a pistol, and her husband told him twice to “Lower your weapon.” At that point she heard a shot and then more shots coming back towards her and her husband. She did not hear him identify himself as a U.S. Customs agent.
6. Jose Elizondo (Appellant)
Elizondo testified in his defense. He stated that, he and his wife arrived at Punto 3 nightclub at around 1:00 a.m. in his white Dodge pickup. He stated that, as a-licensed peace officer, he has an assigned pistol from U.S. Customs, which was in the console of his pickup truck along with his credentials identifying him as a federal agent. Elizondo explained that, under federal law, he is authorized to carry a weapon at all times, but that he left the pistol and his credentials in his truck when they entered the nightclub.
In his statement that was read at trial and corroborated by him on the witness stand, Elizondo stated that, after he and
7. Oscar Gonzalez (Investigator with Higalgo County Sheriffs Office)
Oscar Gonzalez, a crime-scene investigator with the Hidalgo County Sheriffs Office, was dispatched to the Punto 3 nightclub at approximately 2:00 a.m. on August 9, 2010. He arrived on the scene around 4:15 a.m. Upon arriving, Gonzalez was “told that there was a shooting out there, that a Customs agent was involved, and the owner of the bar was involved.” The following information can be gleaned from Gonzalez’s testimony and the State’s exhibits admitted into evidence through Gonzalez:
• Elizondo owned a .40 caliber handgun. The magazine to Elizondo’s gun held a maximum of twelve bullets. Eight live bullets were recovered from the gun’s magazine.
• The holster for Elizondo’s .40 caliber handgun was found on the ground next to the open driver’s side door of Elizon-do’s truck, a white Dodge Ram.
• Four" empty .40 caliber shell cásings were discovered on the scene. They were all located in the parking lot area near the driver’s’ side door of Elizon-do’s truck. One casing was found under a white Ford F-150 pickup truck parked fire-engine-style in the parking space next to Elizondo’s truck. Another casing was found under a Ford F-250 pickup truck párked on the other side of the F-150. The other two empty shell casings were found in the parking lot area next to a Tahoe SUV parked nose-to-nose in front of Elizondo’s truck.
• There was a bullet entry hole in the side of Elizondo’s truck on the driver’s side to the left of the gas tank lid. There was another-bullet entry hole on the inside of the truck’s bed above the passenger side rear tire well. The testimony was not clear as to whether there were exit holes.
• There were bullet fragments, a damaged “projectile,” and copper bullet jackets found on the ground near the ' passenger side of Elizondo’s truck.
• A black Dodge Charger was parked next to a chainlink fence in the .same parking lot area. There was blood on the ground near the Dodge Charger. An orange ostrich hat band that had . .belonged to Limón Sr. was found next to the Dodge Charger.
• Limón Sr. owned a 9-millimeter handr gun.
• Five empty 9-millimeter shell’casings ■ were found on the scene. Two were found directly in front of Punto 3’s front door area. A third was found near the Black Dodge Charger along the chainlink fence. The remaining two" 9-millimeter empty shell casings were also fourid in the parking lot in front of the bar near the chainlink fence.
• Elizondo’s pickup truck was parked approximately 67 yards from the front door of the nightclub.
8. Richard Parent (Forensic Scientist, Texas Department of Public Safety)
Dr. Richard Parent, a forensic scientist in the firearms and toolmark section at the McAllen Regional Crime Lab, testified as an expert witness. He identified Elizon-do’s gun as a .40 caliber Smith and Wesson, model P2000 handgun manufactured by Heckler and Koch. He identified Limón Sr.’s gun as a 9-millimeter.Luger, model PT2709 handgun manufactured by Taurus.
9. Trooper Christopher Michael Champion
Trooper Christopher Michael Champion, with the Texas Highway Patrol, testified that he was the first officer on the' scene after the shooting. Trooper Champion said that Elizondo was cooperative, and, although he smelled of alcohol, he did not seem tó be intoxicated — he had not “lost his normal physical faculties.” He also testified-that, although Elizondo told him that he had been punched in the mouth, Trooper Champion did not see any type of bruising or cuts to Elizondo’s lip. Elizon-do also told Champion that he had= been kicked in the head by several individuals, but Elizondo still had his cowboy hat on, and Elizondo had no torn clothing or any bruising. Elizondo also told- Trooper Champion that they had him on the ground, they were beating on him, he feared for his life, and so he ran to his truck:
He told me that they were coming after him, he pulled — he went to his vehicle, he got his gun, he grabbed it; he said that he stated that he was U.S. Customs and Border' Protection and that he pointed the gun; and when he pointed the gun he saw the victim reach behind his back, I believe is what he said; He pulled out what he believed was a gun and he shot him; and then he told me— I believe he said three times or I believe he said he shot three times at the subject.
Trooper Champion testified that he did not believe that Elizondo had been assaulted.
ON DIRECT APPEAL
On direct appeal to the Thirteenth Court of Appeals, the first issue raised by Elizon-do was that the evidence was legally insufficient to support the jury’s rejection of self-defense.. In resolving Elizondo’s sufficiency challenge, the court of appeals addressed provocation by. holding that “[a] reasonable jury could have believed that Elizondo provoked the fight, which would have made self-defense unavailable.”
.. Elizondo’s second issue raised on direct appeal was that the jury charge was erroneous and harmful. He complained, as he does before this Court, that the jury charge on self-defense was erroneous because: (1) it included a provocation instruction over Elizondo’s objection; (2) it did not include all of the presumptions of reasonable force as provided by section 9.32 of the penal code; (3) it improperly stated the provocation instruction; (4) it failed to include an instruction on “threats as justifiable force”; and (5) it failed to include any reference to multiple assailants.
ANALYSIS
It is undisputed that an argument broke out just outside the bar between Elizondo and Junior. Other bar security guards, along with Limón Sr., were involved, both as participants in, and witnesses to, the argument. There may have been a’swing by Elizondo, some shoving, and a punch or slap. Elizondo ran away from the group, toward his truck parked nearly 70 yards away. Others involved in the altercation followed Elizondo to his truck and ended up in a struggle near the truck — how many were involved in that struggle varies by witness testimony. Whether Elizondo had run to his truck to get away from his so-called attackers, or to retrieve his gun, was in dispute. What was undisputed was the fact that, just before Elizondo shot and killed Limón Sr., each man was pointing a gun at the other.
A. Provoking the Difficulty — A Limitation On The Right of Self-Defense
Under Section 9.31 of the Texas Penal Code, a person may justifiably use force against another when he reasonably believes that the force is immediately necessary to protect himself from the other person’s use or attempted use of unlawful force.
1. Smith v. State
The portion of the self-defense statute regarding provocation is a limitation on a defendant’s right to self-defense. “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.”
a charge on provocation is required when there is sufficient evidence
(1) that the defendant did some act or used some words that provoked the attack on him,
(2) that such act or words were reasonably calculated to provoke the attack, and
(3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other.15
We concluded in Smith that “[a]n instruction on provocation should only be given when there is evidence from which a rational jury could find every element of provocation beyond a reasonable doubt.”
2. How The Appellate Court Analyzed Provocation
In this case, in determining whether the trial court properly included a provocation instruction in the jury charge, the court of appeals was required to address all three of the Smithelements. “Under such an analysis the appellate court asks if there was sufficient evidence from which a rational jury could have found provocation beyond a reasonable doubt, viewing the evidence in the light most favorable to giving the instruction.”
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*198 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 modem 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.20
In addressing Elizondo’s second issue raised on direct appeal — that the jury charge erroneously included a provocation instruction over his objection — -the court of appeals cited to Matthews v. State,
•In Matthews v. State, the Texas Court of Criminal Appeals held that a provocation charge is proper when: (1) self defense is an issue; (2) there are facts in evidence which show that the deceased made the first attack' on the defendant; and (3) the defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury upon the deceased. The determination to include the instruction “is limited to whether there is any evidence raising the issue.” “Words alone may provoke the difficulty, thereby justifying a provocation charge.”22 ■
Significantly, in' Smith v. State, this Court opined that the above holding in Matthews needed further clarification:
The enumeration- of circumstances in Matthews - did not much clarify the doctrine of provocation. The first circumstance is a threshold question for allowing; the charge, and the second circumstance is a necessary predicate-of the first. Neither is part of the issue of provocation itself. The third circumstance embodies the doctrine of provocation, and we take this opportunity to clarify when the issue properly should be submitted to the jury.
A charge on provocation is required when there is. sufficient evidence (1) that ■ , the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were , reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other.
All of the- elements are questions of fact_ The doctrine of provocation is codified in Section 9.31(b)(4) of the Penal Code, and has its roots in the common law.. It is founded upon the theory of estoppel and based upon the legal maxims that, “A man may not take «advantage of his own wrong to gain favorable interpretation of the law; he seeks the law in vain who offends against it.... [0]ne cannot willingly and knowingly bring upon himself the very necessity .which he, sets up for his own defense.” ... Although. not specifically stated in*199 the current statute, the common law element of intent is still required under the current codification.
An instruction on provocation should only be given when there is evidence from which a'rational jury could find every element of provocation beyond a reasonable doubt23
With regard to the first of the three Smith elements, there must be some evidence from which a rational jury could find beyond a reasonable doubt that some act or words of the defendant actually caused the attack on him.
The second Smith element justifying an instruction on provoking the difficulty is that ■ the defendant’s actions or words were reasonably calculated to provoke the attack. Even if acts or words may cause an attack on the defendant, if such acts or words were not reasonably calculated to do so, the defendant will not lose his right to self-defense.
The appellate court did not expressly address this second element of Smith. However, the appellate court discussed, in great detail, the testimony of the witnesses and the evidence regarding the confrontation between Elizondo and the others. The appellate court concluded that “a reasonable jury could have believed that Elizondo provoked the fight,” and “a reasonable jury could have found” that Elizondo did not abandon the first encounter, but was running to his truck to get a gun in continuation of the, fight that began just outside the bar.
3. The Appellate Court Failed to Properly Analyze the Third Smith Element
The third element supporting a provoking-the-difficulty instruction requires that there be some evidence from which a rational jury could find beyond a reasonable doubt that the act was done, or the words were used, for the purpose and with the intent that the defendant would have a pretext for killing the victim. “Even though a person does an act, even a wrongful act, which does indeed provoke an attack by another, if he had no intent that the act would have such an effect as part of a larger plan of doing the victim harm, he does not lose his right of self-defense.”
This third element of intent has long been a part of the common-law doctrine of provoking the difficulty. In the 1938 decision of Norwood v. State, this Court held that,
If the appellant, by his own act or conduct, did something with the intention of provoking a difficulty and it was reasonably calculated to provoke the deceased to make an attack upon the appellant which he, appellant, might use as a pretext for the killing of the deceased, then he forfeited his right of self-defense. What his intentions were was concealed within his own mind and can only be determined from his words, acts, and conduct. If they were such as would reasonably lead a dispassionate mind to the conclusion that he intended to provoke a difficulty for the purpose of killing the deceased, then the testimony was sufficient to submit the issue to the jury for their determination.33
In Smith, we held that the Legislature’s codification of provocation did not eliminate the common-law element of intent— “[although not specifically stated in the current statute, the common-law element of intent is still required under the current codification.”
(b) The use of force against another is not justified: ... (4) if the actor provoked the other’s use or attempted use of unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor.35
When this offense was committed in August of 2010, the wording of Section 9.31(b)(4) had not changed.
A defendant’s intentions can be determined from his words, acts, and conduct, occurring before, during, or after the provocation.
The court of appeals did' not properly address this third element. The appellate court, as well as both parties, incorrectly focused on the issue of abandonment óf the encounter — specifically, whether there had been an abandonment by Elizondo of the first argument just outside the bar.
However, the focus on whether there was an abandonment of the encounter was misplaced. A jury should be instructed on the issue of abandonment only if provocation applies in the first place. Even if we agree that Elizondo’s, shouting, “Van a ver,” was not an abandonment of the initial confrontation, there must be evidence from which a rational jury could find-that Eli-zondo used self-defense as a pretext for killing Limón Sr. The appellate court’s discussion of whether there was evidence that Elizondo abandoned the initial encounter does not adequately address whether this third element of Smith was met. The record must show' that there was evidence from which a rational jury could find beyond a reasonable doubt that Elizondo intended his acts to have a provocative effect “as part of a larger plan of doing [Limón Sr.] harm.”
Therefore, rather than, focusing on the issue of abandonment, the court of appeals should have addressed whether there was evidence that Elizondo had the intent to provoke Limón Sr. into attacking him, so that Elizondo could claim that he was justified in shooting Limón Sr. in self-defense. Although a finding of insufficient evidence to support a jury’s finding of intent occurs only in a--few “exceptional and extraordinary situations,” there must still be a determination by the reviewing court that the trial court correctly decided that there was evidence raised that supported giving the provoking-the-difficulty instruction.
In resolving the issue of whether the provocation instruction was properly given, the appellate court relied on the following four pieces of evidence: (1) Rigo’s testimony “that Elizondo told Junior, ‘Don’t disre
Although a jury can rely upon wholly circumstantial evidence to find provoking acts or words,
B. Did Elizondo Suffer “Some Harm” As A Result of The Provocation Instruction?
Because we have concluded that the trial court erred by including an instruction in the jury charge on provoking the difficulty, the next step in reviewing a claim of jury charge error involves a harm analysis under Almanza v. State.
Because Elizondo objected to the provocation charge at trial, he is entitled to a reversal of his conviction if the record shows that he suffered “some harm” as a result of the inclusion of the provocation instruction.
1. The Jury Charge as a Whole
The first Almanza factor requires us to consider the entire jury charge. The first part of the charge defines the offense of murder and its terms. The latter part of the charge contains boilerplate instructions. These portions are correctly drafted and do not weigh either in favor of, or against, a finding of some harm.
Paragraph IV, comprising three and a half of the six-and-a-half-page charge, instructs the jury on self-defense. Paragraph IV begins by tracking the language of Texas Penal Code section 9.32. Howev-
er, as the appellate court correctly noted, the instruction fails to include portions of the presumption language that could have benefitted Elizondo:
The jury charge only provided that a presumption of reasonableness would arise if Elizondo “knew or had reason to believe that the person against [whom] deadly force was used was committing or attempting to commit murder.” [Texas Penal Code] § 9.32(b)(1)(C). Eli-zondo argues that two additional scenarios should have been added to the charge. First, where the actor knew or had reason to believe an assailant “unlawfully and with force enterfed, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment.” Id. § 9.32(b)(1)(A). And second, where the actor “(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment.” Id. § 9.32(b)(1)(B).
Elizondo complains that he knew or had reason to believe that Junior unlawfully and with force pulled him out of his pickup truck, or was attempting to do so. He stated that Junior’s banging on Elizondo’s driver’s side window yelling
*206 “Get off asshole” meant that ■ he was entitled to those instructions.
We agree that the evidence in the record warranted the inclusion of these instructions. Accordingly, we hold that the trial court erred by omitting them. Having found error, though,, we do not find any egregious harm .... Because we previously concluded that a reasonable jury could have found that Elizondo was not entitled to a self-defense argu.ment because he provoked the initial difficulty and did not abandon the encounter, ... these. extra instructions would not have affected the outcome.59
Contrary to the conclusion reached by the appellate court, we have concluded that the self-defense charge should "not have included an instruction on provoking the difficulty. Consequently, it can no longer be said with such certainty "that “these extra instructions would not have affected the outcome.”
Moreover, the provocation instruction that was given to the jury changed the State’s burden of proof by instructing the jury to find Elizondo guilty of murder if he provoked the difficulty. The proyoking-the-difficülty instruction' included in- the jury charge was worded as follows:
You are further instructed as part of the law of this case, and as a qualification of the law on self-defense, that the use of force by a defendant against another is not justified if the defendant provoked the other’s use or attempted use of unlawful deadly force, unless (a) the defendant abandons the encounter, or clearly communicates to the other his intent to do so, reasonably believing he cannot safely abandon the encounter, and (b) the other person, nevertheless, continues or attempts to use unlawful force against the defendant.
So, in this case, if, you find and believe from the evidence beyond a reasonable doubt that the defendant, Jose Guadalupe Rodriguez Elizondo, immediately before the difficulty, then arid there did some act, or used some language, or did both, as the casé may be, with the intent on his, the defendant’s, part to produce the occasion for killing the deceased, Fermín Limón, [Sr,], and to bring on the difficulty with the said deceased,- and that such words and conduct on defendant’s part, if there were such, were reasonably calculated to, and did, provoke the difficulty, and that on such account the deceased attacked defendant with deadly force, or reasonably appeared to defendant to so attack him or • to be. attempting to attack him, and that the defendant then killed the said Fer-min Limón [Sr.], by use of deadly force, to wit, by shooting him with a firearm, in pursuance of his original design, if . you find there was such design, then you will find the defendant guilty of murder.
*207 On the other hand, if you find from the evidence that the acts done or language used by the defendant, if any, were not, under the circumstances, reasonably calculated or intended to provoke a difficulty or an attack by deceased upon- the defendant, or if you have a reasonable doubt thereof, then, in such event, defendant’s right of self defense would in no way be abridged, impaired, or lessened, and, if you so find, or if you have a reasonable doubt thereof, you will decide the issue of self-defense in accordance with the law on that subject given in other portions of this charge, wholly disregarding and without reference to the law' on the subject of provoking the difficulty.
(Emphasis added).
The appellate court limited its finding of error to only a small portion of this instruction — the part of the sentence (emphasized above) that said, if you find provocation, “then you will find the. defendant guilty of murder.” The appellate court agreed with Elizondo that the jury should have instead been instructed that, if they find provocation, then they should reject self-defense. However, the appellate court found that this error was harmless. In doing so, the appellate court focused only on that one erroneously worded sentence’s effect on the State’s burden to prove the elements of murder. The appellate court held that its “thorough review of the trial record and jury charge” revealed no harm — “From voir diré to closing arguments, the jury was repeatedly instructed that it was the State’s' burden to prove that Elizondo committed murder. The jury charge reinforced this tenet.”
While it is true that this one-sentence of the provocation instruction is indeed erroneously worded, the problems with this provocation instruction, aside from the fact that it should not have been given in the first place, run much deeper than that one sentence. In Reeves v. State, this Court, in a unanimous opinion, denounced a similarly worded provocation instruction in- its entirety, finding it to be “[inlcomprehensible.”
Also, as in Reeves, we note that the physical location of the provocation charge likely magnified its harm. The instruction on provoking the difficulty “immediately followed the self-defense instruction, ‘which makes it more likely that the jury’s attention was drawn to the State’s provocation theory for avoiding appellant’s claim of self-defense.’”
2. The Arguments of Counsel
The State argued in closing (1) that Elizondo “esealat[ed] the situation by using abusive language towards another person;” (2) that Elizondo was the “first person to pull out a weapon;” (3) that when Elizondo got to his truck the “first thing he does is pull a weapon;” and (4) that “[f]rom the moment that [Elizondo] left— ran from that club, he knew where that gun was, and that’s the reason why he was running there, to grab that weapon, to show them his authority, to show them who he really is, and he killed.” Although the prosecutor who first argued for the State did not expressly tie these actions to the provoking-the-difficulty language in the jury charge, the concept that Elizondo started and escalated the fight was key to the State’s theory of prosecution.
On the other hand, when the second prosecutor delivered her closing argument, she focused on the evidence tending to show that Elizondo was not in fear of his life. She did not argue that he provoked the fight or that he had the intent to kill Limón, Sr. under the pretext of self defense:
And this is why you can infer from the evidence that this trajectory is what happened. A little scuffle happens here, he takes off, Bryan and Rigo; two short, skinny guys take chase after him. He’s able to clearly — he’s tall, fit, athletic, came from a training of being a U.S. Customs — makes it to his truck. What does [sic ] Bryan and Rigo have in common? They’re both street smart. They*209 said, “Oh, God. He got into his truck. He must be armed.” They’re not going to get close to a vehicle where there’s a weapon. That gave ample opportunity for the wife to clearly get on the passenger side, but the reason she couldn’t go in is because it was locked. When does he decide to come out of that door? When his brother comes and gets Junior on a chokehold, that’s when he decides to come out.
Unlike the prosecutor in Reeves, the jurors were not referred directly to the provocation instruction and told to “pay close attention to it.”
3. The Entirety of the Evidence
The issue of self-defense was hotly contested. Elizondo’s entire defense rested on the theory of self-defense. Other witnesses testified to another set of facts that, if believed, supported Elizondo’s conviction for murder. As an appellate court, we will not weigh in on this fact-specific determination, as that is a function reserved for a properly instructed jury.
4. Other Relevant Evidence Contained in the Record
It is relevant to the harm analysis that the provocation instruction undermined El-izondo’s sole defense. As the fact-finder, the jury was free to reject some or all of Elizondo’s version of the events, and having done so, the jury could rationally have found all of the essential elements of murder beyond a reasonable doubt. Nevertheless, we cannot determine if the jury actually rejected Elizondo’s self-defense claim because they disbelieved his testimony, or if the jury was prevented from reaching his self-defense claim due to the erroneous submission of the provocation instruction. “Although an erroneous provocation instruction will not necessarily be harmful when self-defense is the sole defensive theory, that factor goes on the ‘some harm’ side of the scale rather than the ‘no harm’ side.”
After considering all four of the Alman-za factors, we hold that Elizondo suffered some harm when the jury was erroneously instructed on provoking the difficulty absent the proper evidentiary support under Smith v. State.
CONCLUSION
For the reasons discussed herein, we hold that the Thirteenth Court of Appeals erred by affirming Elizondo’s conviction. The instruction regarding provoking the difficulty was erroneously worded, and it should not have been included in the court’s charge to the jury in the first place. We hold that the inclusion of the provocation instruction in the jury charge caused some harm. We need not address Elizon-do’s remaining grounds for review. The
. Specifically, this Court granted review on two grounds: (1) the Court of Appeals should have analyzed all the elements of Smith v. State before determining that Elizondo provoked the second altercation; and (2) the Court of Appeals affirmed on- a jury charge that was grossly incorrect by ignoring and . then misapplying this Court's precedent.
. Almanza v. State, 686 S,W.2d 157, 171 (Tex. Crim.App.1985) (op. on reh'g).
. During testimony, both "van a ver” and "vas a ver” were used to describe what Junior heard Elizondo say.
. The appellate court supplied its own translation in its opinion, stating that "van a ver” • means "you all will see.” Elizondo v. State, 2014 WL 222834, > at *4,-n. 1 (Tex.App.-Corpus Christi 2014),
. This testimony differs from the statement he gave to the Hidalgo County Sheriff’s office. In' his statement, Elizondo said that he did not get into his truck, but instead was simply reaching into it from the driver's side open door.
. Elizondo v. State, 2014 WL 222834, at *6 (Tex.App.-Corpus Christi 2014).
. Id. at *7.
. Id. at *8,
. Texas Penal Code § 9.31(a).
. Texas Penal Code §§ 9.32(a)(1) and (a)(2)(A).
. Ferrel v. State. 55 S.W.3d 586, 591 (Tex. Crim. App. 2001) (citing to Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999); Hamel v. State, 916 S.W.2d 491, 493 '(Tex.Crim.App. 1996)).
. Texas Penal Code § 9.31(b)(4).
. 965 S.W.2d 509 (Tex.Crim.App.1998).
. Id. at 512.
. Id. at 513.
. Id. at 514 (emphasis added). In Smith v. State, on an indictment for murder, a jury convicted Smith of manslaughter. At trial, the evidence raised the issue of self-defense, and, over Smith’s objection, the jury, charge on self-defense included provoking the difficulty. The appellate court upheld his conviction. Smith argued before this Court that the court of appeals erred by holding that the provocation instruction was properly given, because there was insufficient evidence to raise the issue of provocation. This Court disagreed, affirmed the decision of the court of appeals, and held that, because "a rational jury could have found every element of provocation beyond a reasonable doubt, ... the trial court properly submitted the [provocation] issue to the jury_” Id. at 520.
. Matthews v. State, 708 S.W.2d 835, 837 (Tex.Crim.App. 1986).
. See Smith, 965 S.W.2d at 513 ("[E]veiy 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.”) (citing to Dirck v. State, 579 S.W.2d 198, 203 n. 5 (Tex.Crim.App. 1979)).
. Smith, 965 S.W.2d at 514.
.2014 WL 222834, at*6 (citing to Smith, 965 S.W.2d at 512, and to Tex. Penal Code § 9.31(b)(4), which provides as follows: "(b) The use of force against another is not justified: ... (4) if the actor provoked the other's use .or attempted use of unlawful force,, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; ,and (B) the other nevertheless continues or attempts to use unlawful force against the actor.”)
. 708 S.W.2d 835 (Tex.Crim.App.1986).
. ’2014 WL'222834, at *7 (citing to Mat'thews, at 837-38,-which cited to Morrison v. State, 158 Tex.'Crim. 424, 256 S.W.2d 410 (1953)). ■
. Smith, 965 S.W.2d at 513-14 (emphasis added; citations omitted).
. Id. at 514 (citing to Matthews, at 838).
. Id. (citing to Bennett v. State, 726 S.W.2d 32, 36 n. 3 (Tex.Crim.App.1986) (holding that an accused could "be found to have provoked the difficulty with the intent to kill his adversary by words or acts, or both, directed at a third party, so long as they were calculated to provoke and did provoke his adversary, just as the accused intended”)).
. 2014 WL 222834, at *6.
. Smith, 965 S.W.2d at 517.
. Id.
. Id. (citing to Morrison v. State, 158 Tex. Crim." 424, 256 S.W.2d. 410, 411 (1953)).
. Id.
. Elizondo, 2014 WL 222834 at *6.
. Smith, 965 S.W.2d at 518.
. 120 S.W,2d 806, 809 (Tex.Crim.App.1938).
. Smith, 965 S.W.2d at 514 (citations omitted). The version of Section 9.31(b)(4) in effect at the time of this offense is worded identically to the version of Section 9.31(b)(4) that was cited in the Smith opinion. See supra note 20.
. Acts of May 23, 1995, 74th Leg., R.S., ch. 190, § 1, 1995 Tex. Gen. Laws Í919, 1919 (codified at Tex Penal Code § 9.31(b)(4)).
. Acts of Mar. 27, 2007, 80th Leg., R.S., ch. 1, § 2, 2007 Tex. Gen. Laws 1, 1 (codified at Tex. Penal Code § 9.31(b)(4)).
. Tex. Pen.Code § 9.31(b)(4) (West 2011).
. Awadelkariem v. State, 974 S.W.2d 721, 725-26 (Tex.Crim.App.1998), overruled in part by Kirk v. State, 454 S.W.3d 511, 515 (Tex. Crim. App. 2015).
. Because Smith answered the question whether the common-law element of intent survived the codification of the provocation doctrine, we do not find it necessary to re-explore that issue. However, even if we did, we would analyze this issue consistently with our reasoning in Garcia v. State, 387 S.W.3d 20 (Tex. Crim. App. 2012), but would reach a different result. In Garcia, we determined that the common-law requirement that the State exercise due diligence in prosecuting a motion to revoke community supervision did not survive codification of that matter because the common-law requirement of due diligence was expressly replaced by Texas Code of Criminal Procedure article 42.12, section 24, which we refer to as the "due diligence” statute. In 2003, article 42.12 was amended to extend the trial court’s jurisdiction over revocation proceedings beyond the expiration of a defendant’s community supervision so long as, before that time, the State has filed a motion to revoke, continue, or modify community supervision and a capias has issued. We held that section 21(e) effectively codified the corresponding common-law requirement, but it did not codify the common-law due-diligence defense. However, at the same time, the Legislature also added section 24 to article 42.12, which expressly created a due-diligence affirmative defense to revocation. Even then, we still decided that it was unclear whether the Legislature intended to eliminate the common-law due-diligence defense entirely. Therefore, we turned to extra-textual factors to determine the Legislature’s intent. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). In light of the legislative history, and the interpretations given to those amendments by the courts of appeals that have analyzed the issue, we concluded that the 2003 addition of section 24 was intended to completely replace the common-law due-diligence defense.
In this case, even if we were to revisit the issue which we had already decided in Smith — that the common-law element of intent is still required under the doctrine of provocation — we find no indicators that there was any legislative intent to eliminate that element. We continue to follow the well-established rule that "a statute must not be interpreted as abrogating a principle of the common law unless such overruling is clearly indicated, either by the express terms of the statute or by necessary implication from the language used.” Enos v. State, 889 S.W.2d 303, 305 (Tex.Crim.App.1994); Manning v. State, 730 S.W.2d 744, 747-48 (Tex.Crim.App. 1987) (recognizing that even when common law rules regarding competency and sanity are codified, if the rules concerning burden shifting have not been incorporated into the statute, then those common law rules remain the same).
Moreover, for the past 18 years appellate courts have been following our holding in Smith, requiring all three elements before a provocation instruction could be included in the jury charge. See, Mayes v. State, 2014 WL 5760688, *3 (Tex.App.-Amarillo 2014, pet. ref’d) (quoting Smith, "the common law element of intent is still required under the current codification”); Mendoza v. State, 349 S.W.3d 273, 279-80 (Tex.App.-Dallas 2011, pet. ref'd); Staley v. State, 2010 WL 2680000, *5 (Tex.App.-San Antonio 2010, pet. ref’d); Dorsey v. State, 2009 WL 3491013, *5 (Tex. App.-Houston [1st Dist.] 2009, pet. ref’d).
.Smith, 965 S,W.2d at 514.
. See Tex. Penal Code § 9.31(b)(4)(A) and (B).
. Smith, 965 S.W.2d at 518.
. id.
. Elizondo, 2014 WL 222834 at *6-8 (emphasis in original). : ⅛ , .
. Smith, 965 S,W.2d"at 515-16.
. Cf, Vise v. State, 2015 WL 575160, *4 (Tex. App.-San Antonio 2015, no pet.) (Defendant and victim lived together as boyfriend and girlfriend. They fought. The victim testified that the defendant told her that if she hit him like a man, then he would hit her back like one. The court found that this satisfied the third element of Smith.);, Cherry v. State, 2014 WL 265844, *6 (Tex.App.-Houston 1st Dist 2014, no pet.) ( Cherry was drunk, manhandled Schall, and hit her arm with the door. Despite repeated requests to leave, Cherry remained at the trailer. Cherry’s refusal to leave and pushing Couchman support the jury’s conclusion that Cherry intended to harm Couchman.); Yougas v. State, 2008 WL 2791517, *3 (Tex.App.-Dallas 2008, pet. ref’d) (Given appellant's words and conduct, including trading insults with the victim, asking him to “come outside,” his decision to arm himself before confronting th.e victim, and the history of-animosity between them, the jury could have reasonably inferred that he had the necessary intent); Tran v. State, 2014 WL 859674, *7 (Tex.App.-Texarkana 2014, pet. ref’d) (Defendant and victim were seated next to each other at a nightclub. Defendant said something insulting to victim. Victim punched, Defendant. Defendant had a gun. “Given that Tran shot Nguyen less than one minute after these words were spoken, the jury could easily infer that Tran's words were spoken with the intent to create a pretext for inflicting harm on Nguyen.”); Oakes v. State, 2010 WL 668541, *4 (Tex.App.-Amarillo 2010, no pet'.) (Appellant and his brother engaged in a fist fight after drinking at a bar. There was a history of animosity between the brothers. Appellant went to his truck and got a gun and shot it in the air, at which time the brother came over to him and they continued to fight verbally. The fight ended when ap
. 726 S.W.2d 32, 36 (Tex.Crim.App.1986) (holding that the evidence was insufficient to show Bennett provoked a man he did not know into attacking him so that Bennett could kill this man).
. Smith, 965 S.W.2d at 519 (citing to Vamell v. State, 26 Tex.App. 56, 9 S.W. 65 (1888)).
. This is why it was necessary for us to set out the facts of the case in tedious detail, and to recount the variations — some extreme, some minuscule — among the witnesses’s versions of the events. A conclusion that there was enough evidence may not have required such an in-depth examination of the evidence, but our conclusion that there was no evidence to support a finding of the third element of Smith required us to examine all of the evidence.
. 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh’g).
. See Van Hoang v. State, 939 S.W.2d 593 (Tex.Crim.App.1996).
. Miller v. State, 815 S.W.2d 582, 586 n. 2 (Tex.Crim.App.1991).
. See, Saenz v. State, 843 S.W.2d 24, 30 (Tex.Crim.App.1992) (Baird, J. concurring in part and dissenting in part),
. Almanza, 686 S.W.2d at 171. See Garza v. State, 126 S.W,3d 79, 82 (Tex. Crim. App.
. Tex.Code Crim. Proc. Ann. art. 36.19; Wooten v. State, 400 S.W.3d 601, 606 (Tex.Crim.App.2013); Almanza, 686 S.W.2d at 171.
. See Trevino v. State, 100 S.W.3d 232, 241 (Tex.Crim.App.2003) (citing to Ovdlle v. State, 13 S.W.3d 774, 787 (Tex.Crim.App.2000)).
. Almanza, 686 S.W.2d at 171.
. Reeves, 420 S.W.3d at 816 (citing to Warner v. State, 245 S.W,3d 458, 462 (Tex.Crim.App.2008)).
. Elizondo, 2014 WL 222834 at *8 (emphasis added).
. Id.
. 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005).
. Elizondo, 2014 WL 222834 at *9.
. Reeves v. State, 420 S.W.3d 812, 818 (Tex. Crim. App. 2013) ("That first application paragraph contains 156 words in one sentence. The second paragraph contains 125 words in , one sentence. Neither is comprehensible.”).
. In our opinion in Reeves, we refer to pages 216-219 of Volume Two of the Texas Criminal Pattern Jury Charges concerning instructions on provocation, noting:
The model instructions subdivide the various issues into short lists that jurors may read and understand without undue difficulty. Perhaps most important, the pattern jury charge ensures that the jury understands that it is the State’s burden to prove provocation beyond a reasonable doubt.... The instruction used in this case does not make that burden clear.
Id. at 818 n. 30 (citing to Smith, 965 S.W.2d at 514).
.Reeves, 420 S.W.3d at 819. See Tave v. State, 620 S.W.2d 604, 605-06 (Tex.Crim.App.1981) (concluding that there was no evidence to support the "completely unwarranted” provocation); McCandless v. State, 42 Tex. Crim. 58, 57 S.W. 672, 675 (1900) (holding that giving of provocation charge without sufficient evidence was harmful error because it was "calculated to make the jury believe that, in the opinion of the judge, there was evidence tending to show that appellant brought on the difficulty for the purpose of> slaying his adversary.”)
. Reeves, 420 S.W.3d at 819 (citing to Miles v. State, 204 S.W.3d 822, 827-28 (Tex. Crim. App. 2006)).
. Id. at 818.
. Id. at 818-819 (quoting Gelinas v. State, 398 S.W.3d 703, 711 (Tex. Crim. App. 2013) (Cochran, J., concurring)).
. Id. at 818 (citing to Williams v. State, 547 S.W.2d 18, 20 (Tex.Crim.App. 1977)).
. . Id.
. Id. at 819 (citing to Mendoza v. State, 349 S.W.3d 273, 283 (Tex.App.-Dallas 2011, pet. ref'd).
. Id.
. Id at 820.
. Id.
.See Reeves, 420 S.W.3d at 819 (citing to Brooks v. State, 323 S.W,3d 893, 899 (Tex. Crim. App. 2010).
.Reeves, 420 S.W.3d at 821.
Dissenting Opinion
dissented.
YEARY, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.
I agree with most of what is in the majority opinion and would join it but for its ultimate disposition of thé case. I would remand the case for the court of appeals to conduct the harm analysis.