Thug 1 hits victim with his fist, all testimony is that hit is unprovoked. Thug 2 then hits victim in the head with a weapon. Some testimony that when Thug 1 hits victim, others (not victim) jump on Thug 1. Thug 2s "defense" seems to be that he was defending Thug 1 when he hit victim with said weapon. I've found In Re D.O. and Hughes, but surely there has got to be a case out there that says you don't get a defense of third party when the third party provoked the initial assault !! Any help greatly appreciated. I argue the charge tomorrow mid-morning.

[This message was edited by Stacey L. Brownlee on 03-25-08 at .]

First off I'm not a lawyer so you probably don't want my opinion except perhaps as a window into the mind of a potential juror... That said:

9.33 allows you to defend a third person under circumstances that you would be able defend yourself under 9.31.

But 9.31 excludes provocation from self defense

9.31.  SELF-DEFENSE.  
(a)  Except as provided in Subsection (b), a 
  person is justified in using force against 
  another when and to the degree the actor 
  reasonably believes the force is immediately 
  necessary to protect the actor against the 
  other's use or attempted use of unlawful force.  
  The actor's belief that the force was immediately 
  necessary as described by this subsection is 
  presumed to be reasonable if the actor:
  (1)  knew or had reason to believe [... snip ...]
  (2)  did not provoke the person against whom 
       the force was used; and        
  (3)  was not otherwise engaged in criminal 
       activity, other than a Class C misdemeanor 
       that is a violation of a law or ordinance 
       regulating traffic at the time the force 
       was used.

I'd say Thug2 steps into Thug1's shoes to defend but he fails in 931(a)(2) because of the provocation and also fails 931(a)(3) because the first attack is a criminal activity other than a traffic offense.

You can only use force against another's unlawful use of force. If the victim lawfully tried to defend himself, that would not let another "defend" against the victim. It's in the text of the statute. Thug 2 does not get self-defense because victim's use of force against Thug 1 is not unlawful. Section 9.33, defense of third parties, incorporates the same "unlawful" requirement in 9.31.

Alex, you've given the portion of the law as regards the presumption, and provocation can limit the presumption. You have to go further down for the provocation limits on self-defense generally, which are at 9.31(b)(4). The CCA explained provocation as a limit on self-defense in Smith, 969 S.W.2d 509, 513.

[This message was edited by JohnR on 03-25-08 at .]

"Courts have also applied the limitation of provoking the difficulty on the defense of third persons. In other words, a defendant is not entitled to use force to protect a third person if he believes that that third person provoked the difficulty with the intent of using deadly force to kill the complainant." 6 TEXAS PRACTICE § 7.6 (citing Hanley v. State, 921 S.W.2d 904 (Tex.App.--Waco 1996, pdr ref'd)).

Jimenez v. State, No. 14-96-01066-CR, 1998 WL 651610 at *3 (Tex.App. -- Houston [14th Dist.] September 24, 1998, pet. ref'd) ("A person does not have a defense of a third party theory available where the third party provoked the incident and the person knows of the provocation.")

Just what I was looking for!
THANK YOU !