OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
ONION, Presiding Judge.
This appeal involves a conviction for murder. After the jury's verdict of guilty, the court assessed punishment at imprisonment for 20 years.
We granted the petition for discretionary review to determine the correctness of that portion of the decision below.
The appellant was indicted for the murder of Rick Owen Jamison on or about December 15, 1981.
The record reveals that the deceased Jamison was living at appellant's house at the time of the killing and had several days earlier been convicted of burglary. His burned body was found near appellant's residence about a week later. There were no eyewitnesses to the shooting. Appellant did not testify at the guilt stage of the trial. The State offered most of appellant's extrajudicial confession. The appellant offered the balance—a few phrases omitted by the State.
The pertinent part of the confession before the jury reflects:
This was the only evidence which bore on the issues of self-defense and provoking the difficulty.
The court charged the jury on the defense of self-defense, but also, over objection that the issue was not raised by the evidence, charged on the issue of provoking the difficulty, which limits the right of self-defense.
A jury instruction on provoking the difficulty should not be submitted to the jury unless self-defense is an issue and there are facts in evidence which show that the deceased made the first assault on the defendant and the defendant, in order to have a pretext for killing or inflicting bodily injury upon the deceased, did some act or used some words intended to and calculated to bring on the difficulty. See Stanley v. State, supra.
The only evidence, appellant's confession, reflects that he (appellant) and the deceased began to argue after appellant told the deceased he was going to have to leave the appellant's house for the reasons stated. If the appellant did and said all the things mentioned in the confession, it does not raise the issue that it was his purpose to provoke an attack from the deceased Jamison in order that he might have a pretext for killing Jamison.
In Jones v. State, 99 Tex.Cr.R. 50, 267 S.W. 985 (1925), the defendant was confronted on his property by constable Butts who ordered the defendant to pay a judgment levied against him. After some discussion, Butts decided that he would attach several bales of the defendant's cotton. Jones (the defendant) was alleged to have stated that he had something in his house that could stop that and he proceeded toward it. Butts fired several rounds at the defendant who went into the house, returned with a shotgun and fired it at Butts. At Jones' trial for assault to murder, the trial court submitted an instruction to the jury on provocation, which could thereby limit the claim of self-defense. This court wrote:
If it can be said that the defendant did not have the intent to provoke in Jones, supra, it is inconceivable that appellant could be deemed to have possessed such an intent from the evidence presented in the case at bar. We cannot agree with the Court of Appeals that the evidence gives rise to a reasonable inference that appellant intended to provoke Jamison into attacking him.
The State argues that even if the trial court did err in submitting the charge on provoking the difficulty, such error was harmless because under the evidence appellant was never entitled to a charge on self-defense. It is axiomatic that when properly requested the trial court must instruct the jury on every defensive theory raised by the evidence, and it makes no difference whether such evidence was produced by the State or the defense, or whether such evidence is strong, weak, unimpeached or contradicted. Warren v. State, 565 S.W.2d 931 (Tex.Cr.App. 1978); Booth v. State, ___ S.W.2d ___ (Nos. 63,872 and 63,873—June 13, 1984); Dyson v. State, 672 S.W.2d 460 (1984).
The confession reflected that the deceased became angry and was reaching for a machete. In Barree v. State, 621 S.W.2d 776 (Tex.Cr.App.1981) (Opinion on appellant's
We conclude that the trial court erred in giving the provoking the difficulty charge over objection under the circumstances presented. The judgments of the trial court and the Court of Appeals are reversed, and the cause is remanded to the trial court.