Ballester, Israel, II

Ballester got into an argument with and shot three people: Shaw, Eudy, and Carl. Shaw died. Ballester was charged with his murder in addition to aggravated assault against Eudy and Carl. A single trial was held. The jury instructions on self-defense in all three offenses included the applicable statutory language for provocation found in Tex. Penal Code § 9.31(b)(4). Over objection, the trial court refused to include a definition of provocation derived from Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998). Smith says that submission of any provocation instruction requires “sufficient evidence . . . that the [provoking] act was done or the [provoking] words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other.” Id. at 513. Ballester was acquitted of murder but convicted of the aggravated assaults.

Ballester appealed those convictions and the court of appeals reversed. It held that Smith provides a “technical or particular legal definition of ‘provocation’” and found “some harm” from its omission.

The State challenges both the holding and its underlying premise. Smith does not say that the jury must be instructed on the relevant requirement, which has no basis in statute. Even if it operates as a definition of “provocation,” there are multiple examples of definitions used for appellate review that are not proper for the jury to receive. See, e.g., Green v. State, 476 S.W.3d 440, 445-46 (Tex. Crim. App. 2015) (sufficiency definitions of “penetration” and “female sexual organ” not fit for jury instruction); Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012) (same for sufficiency definition of “operates”). Moreover, the court of appeals’s holding presupposes that Smith was correct to add this element to Section 9.31(b)(4). Smith runs contrary to most of its claimed support in common law. And even if its interpretation were correct and that common law persisted into the 1970s, cases like Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998), and Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), militate against judicial modification of statutory defenses to include common-law provisions that were omitted by the Legislature.