LEGAL NEWS: A Pending Case Could Change Texas Self-Defense Forever

Texas Supreme Court Building/Photo by Noah Dawson

By Nick Self

A case now pending before the Texas Court of Criminal Appeals has the potential to reshape how self-defense claims are evaluated across the state, particularly in situations where prosecutors argue that a defendant “provoked the difficulty.”

The dispute centers on Israel Ballester II, who was tried in Milam County’s 20th District Court on two counts of aggravated assault with a deadly weapon and one count of murder. The charges arose from a long-running neighbor feud over a poorly maintained fence that repeatedly allowed livestock to cross onto Ballester’s property. After an angry encounter near the fence, verbal threats were exchanged.

That exchange set off an escalating series of events that ended with Ballester shooting the neighbor and two invited guests. Ballester claimed self-defense, testifying that he fired into the group at the moment one of the men retrieved a rifle from a truck and chambered a round. The jury acquitted him of the murder charge involving the man with the rifle but convicted him of the two aggravated assault counts. The trial court sentenced him to 15 years in the Texas Department of Criminal Justice.

At trial, the jury was instructed on self-defense and received the statutory language of Texas Penal Code § 9.31(b)(4), which states that the use of force is not justified if the defendant provoked the other’s use of force. Over Ballester’s objection, however, the trial court refused to include the additional definitional elements required by the Court of Criminal Appeals’ 1998 decision in Smith v. State. Under Smith, a provocation instruction is proper only when there is evidence that the defendant did some act or used some words that provoked the attack, that those acts or words were reasonably calculated to provoke the attack, and that they were done or spoken for the purpose and with the intent of creating a pretext for inflicting harm under the guise of self-defense.

The Third Court of Appeals in Austin later reversed the convictions. The intermediate court held that the evidence raised the issue and that the omission of the full Smith definition caused some harm to the defense. The State of Texas then sought discretionary review from the Court of Criminal Appeals. In a notable procedural twist, it is the State—not the defendant—that is asking the state’s highest criminal court to revisit or limit the long-standing Smith standard.

The Court of Criminal Appeals granted review and has set oral argument for September 2, 2026, at 9 a.m. Notice of the setting was delivered to the attorneys on July 29.

Ballester is represented by Houston attorneys Emily W. Taylor and T. Edwin Walker of the firm Walker & Taylor, PLLC. The State is represented by John R. Messinger, an assistant state prosecuting attorney. Messinger is also the Republican nominee for Place 9 on the Court of Criminal Appeals in the November 2026 general election.

The questions formally presented to the Court are whether submission of an instruction on provoking the difficulty under § 9.31(b)(4) requires evidence that the difficulty was a scheme to manufacture a claim of self-defense, and if so, whether the jury must be given non-statutory instructions explaining the pretextual nature of that provocation.

Legal observers note that the outcome could affect how Texas juries are instructed in a wide range of self-defense cases involving prior words or actions by the defendant. A decision that narrows or discards the Smith requirements would make it easier for prosecutors to bar self-defense claims based on any provocative conduct, while a decision affirming Smith would reinforce the higher evidentiary threshold that has governed these cases for nearly three decades.