dissenting.
In affirming the judgment of the trial court, the Court of Appeals relied on Matthews v. State, 708 S.W.2d 835, 838 (Tex.Cr.App.1986), as providing the circumstances under which an instruction on provoking the difficulty is proper. Smith v. State, 932 S.W.2d 304, 306 (Tex.App.—Houston [14th Dist.] 1996). Interestingly, even though the majority ultimately affirms the Court of Appeals, they hold: “The enumeration of circumstances in Matthews did not much clarify the doctrine of provocation ... and we take this opportunity to clarify when the issue properly should be submitted to the jury.” Ante at 513. Essentially, the majority affirms the judgment of the Court of Appeals but has decided to re-write the law on provoking the difficulty.1 To this, I dissent.
I.
Provocation is a fact issue, and is included in the court’s charge on self-defense as a limitation on that defense. Dyson v. State, 672 S.W.2d 460, 463 (Tex.Cr.App.1984). However, in Stanley v. State, 625 S.W.2d 320, 321 (Tex.Cr.App.1981) this Court held “[i]t is error to charge on the issue of provoking the difficulty when the testimony does not raise that issue because it puts the defendant in the wrong ...” Consequently, a jury instruction on provoking the difficulty is proper only when: (1) self-defense is an issue; (2) there are facts in evidence which show that the deceased made the first assault 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 bodily injury upon the deceased. Matthews v. State, 708 S.W.2d 835, 838 (Tex.Cr.App.1986).
I agree with the Court of Appeals that the first two elements were raised by the testimony at trial; appellant and Montgomery testified the deceased pulled a knife and lunged at appellant. However, I disagree that the third element was raised by the evidence such that an instruction on provoking the difficulty was proper.
II.
The Court of Appeals stated the third element “was raised by the evidence concerning the argument between [Fuselier] and appellant that caused the deceased to start an argument with appellant that led to the fight and the killing of deceased.” However, the Court failed to cite any evidence or testimony which would establish that appellant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting bodily injury upon the deceased. Although both appellant and Montgomery testified that Fuselier and appellant exchanged words, neither witness could testify as to what was said or even the nature of the exchange.
To satisfy the third element, there must not only be evidence that the deceased initiated the difficulty, but evidence of any act, word or conduct reflecting or indicating an intent to provoke the difficulty and a reasonable calculation to do so. Compare, Williamson v. State, 672 S.W.2d 484, 486 (Tex.Cr.App.1984) (recognizing evidence showing defendant and victim argued was insufficient, absent more, to suggest appellant intended to provoke the difficulty), with Matthews v. *521State, 708 S.W.2d 835 (Tex.Cr.App.1986) (finding argument and additional supporting evidence sufficient to suggest appellant may have intended to provoke the difficulty). Absent evidence of intent and reasonable calculation to provoke the difficulty, there can be no impairment placed on the defendant’s right of self-defense. Stanley, 625 S.W.2d at 323. This Court has recognized evidence of intent and reasonable calculation to provoke the difficulty is essential “because it would be a bad rule to deprive a defendant of the right of self-defense if he unknowingly and innocently provoked a person into using force against him or if the act or words he used were innocuous and not reasonably calculated to produce a difficulty.” Williamson, 672 S.W.2d at 487 (citing MeClung’s “Jury Charges for Texas Criminal Practice” at 332 ). However, if there is evidence the defendant did, in fact, reasonably calculate and intend to bring on the difficulty, the issue becomes a question for the jury and an instruction is proper.
The record is devoid of any evidence that appellant’s argument with Fuselier, assuming there even was one, was intended to provoke the deceased to act in such a way as to provide a pretext for appellant to kill him, and no evidence that appellant had any desire to kill the deceased. Trevino v. State, 83 Tex.Crim. 562, 204 S.W. 996, 997-998 (1918) (prerequisite to limitation of self-defense is evidence that accused produced occasion for killing as excuse for homicide). Precedent of this Court dictates we cannot speculate that appellant’s words or conduct toward Fuselier were intended to and calculated to provoke the difficulty in order to have a pretext for inflicting injury upon the deceased.
Even if appellant did and said all of the things that the witnesses testified to, there is simply no evidence that appellant made any motion, spoke any words or performed any act intended to provoke an attack from the deceased. Thus, an instruction on provoking the difficulty was error. Williamson, 672 S.W.2d at 486 (finding evidence did not raise issue that it was defendant’s purpose to provoke attack from deceased); Jones v. State, 99 Tex.Crim. 50, 267 S.W. 985, 986 (1925) (“Assuming ... [the defendant] used the language and pursued the course of conduct attributed to him by the State’s witness, to our minds it does not support that it was his purpose to provoke an attack from Butts in order that it might be made a pretext for killing him.”).
Accordingly, the judgment of the Court of Appeals should be reversed. Because it is not, I dissent.
OVERSTREET, J. joins.
. In the same vein, the majority overrules another leading case from this Court on the issue of provoking the difficulty when it says, “...we think Stanley [v. State, 625 S.W.2d 320 (Tex.Cr.App.1982)] was wrongly decided, and correcting our error would provide an alternate basis for the jury’s finding of an act of provocation in the case at hand.” Ante at 515. Holding to my firm respect for the doctrine of stare decisis, I believe that law should not be overruled simply to provide "alternate” justifications to accommodate trial error.