Self Defense is a legal defense that justifies conduct that would otherwise be a crime. That underlying crime might be assault or it might be murder. Unlike some other defenses that deny or refute the underlying offense such as when a person denies an offense happened, a claim of self-defense is an affirmative defense. An affirmative defense admits the underlying crime and attempts to justify it legally. A claim of self-defense is both an admission of the crime, and a claim that there was no other choice but to use force, or deadly force—either to prevent a greater crime, or for the person to protect themselves against bodily injury or serious bodily injury or death. Texas is one of several states that have broad self-defense laws, including a Stand Your Ground Law that has been so controversial in years past. Also, in Texas, like several other states, there is no Duty to Retreat. As long as you are not trespassing, and you have lawful right to be where you are, you do not have any obligation to retreat before engaging in self-defense to protect yourself and to protect your family. This page discusses these and other aspects of self-defense in detail. Texas allows its citizens to protect themselves, others, and property both by using force and using deadly force.
Texas Has Strong Self-Defense Laws
The right to self-defense is broad and strong, and it allows a person to employ force or deadly force for protection in a variety of different circumstances. These laws are in place both for protection and prevention—for you to protect yourself and to protect others, and to prevent imminent violent felonies, and in limited circumstances to protect property. However, self-defense is not a license to inflict bodily injury or to kill someone any time you feel like you are being threatened, and any time you are afraid. To lawfully defend yourself, it must be reasonable to use force, and the danger must also be imminent and real. These rights are codified in the Texas Penal Code Section 9.31, 9.32, 9.33, and 9.41, which this article will discuss in detail.
When Raising Self-Defense, Reasonableness Is Everything
The touchstone for using deadly force is necessity and reasonableness. Force and deadly force must be reasonable under the circumstances. If the case goes all the way to trial, jurors must believe that whatever degree of force used corresponds to the threat and danger of the situation, as seen from the point of view of the person facing the danger. This is one of the most important facets of self-defense—that reasonableness is not determined in an objective way—reasonableness is determined from the perspective of the person who used force or deadly force. That means what that person felt, what they thought, based on reality as they knew it to be, are crucially important factors that need to be presented powerfully to the jury. Closely tied to reasonableness is the concept of immediately necessary. Situations arise in which a jury may believe that deadly force is reasonable, but it doesn’t believe that it’s immediately necessary, and this could defeat a self-defense claim. Even if protecting yourself is reasonable, you can’t leave the scene and go sleep on it and then come back and use deadly force.
If Your Home or Vehicle Is Entered Unlawfully, Reasonableness Is Presumed
Texas gives very strong rights to a person to protect their property. This is especially true of the home. Under Texas law, there is the Castle Doctrine—the home is sacred. However, the law allows you to use force to protect you in your vehicle. If the person using force knew that the other person unlawfully entered or attempted to enter their home, car or business, it will be presumed that the person’s belief that using force was immediately necessary was reasonable. If these facts can be shown, the jury is instructed that there is a presumption of reasonableness. And the prosecutors must prove beyond a reasonable doubt that it was not reasonable. This is very important. It is a huge protection under the law for people claiming self-defense.
What Is the Difference Between Force And Deadly Force?
There are two kinds of force described in the Texas Penal Code, force and deadly force. Force varies in intensity and doesn’t mean one thing. This is because there are different degrees of force that can be used in response to any situation. Force has different degrees. It can be a light shove on the shoulder, or it could be a savage beating that leaves someone bruised and bloodied, and it could fall anywhere in between. Force is not defined by the Texas Penal Code, although deadly force is. Deadly force means that the force is meant to result in someone’s death or in serious bodily injury, based on the way the force is used or in the way the force is intended to be used. Generally, a claim of justifiable deadly force will arise in a murder trial or an aggravated assault trial. There are many ways to murder someone, of course. Many times, a claim of deadly force will be raised in a trial involving a gun death in a murder trial.
When Is Using Force Allowed? Texas Penal Code Section 9.31
As noted above, the use of force is justified if the person using force believes that it is immediately necessary to defend themselves against someone else’s unlawful force. Self-defense that justifies the use of force—but not deadly force—comes up usually in assault or aggravated assault cases, in which there are some injuries, possibly serious ones even though the person survived. The important factor here is that it must match the force used. So even if a person unlawfully uses force against you, you cannot use more force than is necessary to defend yourself. Force must be used to the degree necessary to defend yourself.
When Is Using Deadly Force Allowed? Texas Penal Code Section 9.32
To begin, it is important to note that if force is not justified, deadly force is out as well. For deadly force to be justified, force must first be justified. If force is justified, then it must also be tailored to the situation. It must be timely and it must be only to the necessary degree to either protect yourself against unlawful deadly force or attempted use of deadly force, or to prevent the imminent commission of a serious felony. The serious felonies listed in Section 9.32 are murder, aggravated robbery, kidnapping, aggravated kidnapping, sexual assault, or aggravated sexual assault. Imminent is a key indicator that timeliness is very important to a self-defense claim. The commission of the felony must be about to occur.
When Is Using Force or Deadly Force Immediately Necessary?
Although this has been discussed above, a very important element to any lawful self-defense claim is that the use of force be time specific. It must be immediately necessary. The threat must be about to happen. What immediately necessary means will shift depending on the given case. Each case is different and what is immediately necessary in one case might not be in another case.
Deadly Force to Protect Yourself
The primary purpose of the self-defense law is to allow you to protect yourself. There are several criteria that must be met for a person to have a lawful claim of self-defense. First, a person must be justified in using force that is outlined in section 9.31. Then, whether deadly force was lawful will be measured by whether it was immediately necessary. And the person using deadly force must believe it was immediately necessary, and this belief must be reasonable. Self-defense is always evaluated from the perspective of the person using deadly force. Reasonableness is evaluated from that perspective, and immediately necessary is also evaluated from that perspective. As mentioned above, deadly force is allowable for protection and prevention. Deadly force is permitted to protect yourself against someone else’s unlawful deadly force or attempted use of unlawful deadly force. Deadly force is also permitted to prevent the imminent commission of sexual assault, aggravated sexual assault, murder, aggravated kidnapping, robbery, or aggravated robbery.
Deadly Force to Protect Other People—Texas Penal Code Section 9.33
Texas law allows a person to protect other people as well. How does this work? The analysis is very similar to that above for using deadly force used in self-defense to protect yourself. First, a person must be justified in using deadly force under Texas Penal Code section 9.32. The person using deadly force to protect a third person must reasonably believe that the person he or she is protecting needs protection against the unlawful use of deadly force, or the unlawful attempted use of deadly force. Again, the justification is according to the circumstances as the person using deadly force reasonably believes them to be.
Force and Deadly Force to Protect Property
Self-defense isn’t only about protecting people. In certain circumstances, there is also a legal justification for defending property. You can also use force to protect property. You can even use deadly force to protect property. A person can use force or deadly force to protect land, and also to protect other kinds of personal property. The statutes about defending property are located in the Texas Penal Code in Sections9.41 and 9.42. You can use force to the degree reasonably necessary to stop a trespass on your land, or to stop or prevent an unlawful interference with some other property. If you have been removed or dispossessed from land or other property, you can also use force to recover property or reenter land to the degree necessary. Once again, there are time limits—like all claims of self-defense, it must be immediately necessary. Deadly force can be deployed to prevent the imminent commission of arson, robbery, aggravated robbery, burglary, or theft during the nighttime. Deadly force can also be used to protect property to prevent a person from fleeing with the property immediately after committing those same felonies. However, you must reasonably believe that there is no other way to recover the property, and that using force less than deadly force would make you vulnerable to a serious risk of either serious bodily injury or death.
When Is Deadly Force Not Allowed?
There are several circumstances in which deadly force is expressly not allowed by statute as listed in Texas Penal Code Section 9.32. A person cannot claim self-defense if the danger is not imminent, or it is unreasonable to use deadly force. Of course, what is reasonable and what is not differs from case to case. There is no one answer. Even in the context of one case, the prosecutors and the defense attorneys might craft entire case on either side of whether it was reasonable to use deadly force. There are several situations that defeat the presumption of reasonable deadly force. For one thing, neither force nor deadly force is allowed in response to words alone. There must be something else, other than words that reasonably cause a person to employ deadly force. The presumption of reasonableness is defeated if the person claiming self-defense and using deadly force provoked the other person. This is because self-defense is reactionary in nature. It is a response of protection and prevention that justifies deadly force. The presumption is also defeated if the person claiming self-defense and using deadly force is committing a crime. This doesn’t have to be a felony, either. It might be something like unlawfully carrying a weapon, which is a class A misdemeanor.
Is Self Defense Allowed in Response to Words?
No, self defense is not allowable as a defense as a response to words and words alone. There must be something else in addition to verbal provocation. There must be either a show of force or a show or deadly force. The justified use of force as a defense to assault or to aggravated assault or to homicide is a reaction to a someone else’s unlawful force, or someone else’s unlawful deadly force. How much force the law will tolerate as a justification depends on how much force the other person uses or attempts to use. Words alone, verbal provocation, including present or future threats are specifically excluded from the self defense statute. Determining what verbal provocation, by itself, means in the real world will often be messy. The defense and the prosecution can argue heatedly over this. For instance, what if someone were to say “I will kill you?” This is not enough to raise self-defense. But, what if while these words, he is aggressively walking toward you? What if he is reaching into a bag or a jacket pocket and you think that he has a weapon? Those situations are more than verbal provocation alone. The possible fact scenarios are countless, and each one requires its own detailed legal analysis.
Does a Person Have the Duty to Retreat?
No, a person does not have a duty to retreat in Texas. A person does not have the duty to retreat in their home, and a person does not have the duty to retreat outside their home. The Texas legislature has acknowledged that there is no duty to retreat for people that are attacked in their homes for over two decades. However, in 2007, the Texas Legislature amended the self defense statutes to abolish the requirement that a person has a duty to retreat outside their homes. People have the right to stand their ground and use either force or deadly force to defend themselves, depending on what level of force is appropriate. The right to stand your ground is not unlimited, and there are several restrictions on it. You cannot have provoked the person who is using unlawful force or attempting to use unlawful force. Also, you cannot be committing any other crimes when the force is used. Finally, you must have the right to be present at the place you are, meaning you cannot be trespassing.
Does Texas Have Stand Your Ground Laws?
Yes, Texas has a robust stand your ground law. This is another way of saying that you do not have to be able to flee or leave, as discussed directly above. In Texas, and in many other states, you do not have a duty to retreat. These laws have been very controversial across the nation, and have been hot topics in murder cases. You do not have a duty to retreat in your home, and you do not have a duty to retreat anywhere else you are legally allowed to be. You can stand your ground as long as three criteria are satisfied. One, you cannot be committing any other crimes when using force or deadly force. Two, you must have a right to be where you are when using force or deadly force—you cannot be trespassing. Three, you cannot provoke someone and then use force or deadly force as a justification.
How Does Carrying a Handgun Impact a Self Defense Claim? Texas Penal Code 46.02
Carrying a handgun unlawfully is one of the most common ways to defeat the presumption that deadly force was reasonable. What does unlawful carry entail? The law that outlines carrying a gun in Texas is in Section 46.02. In Texas you are allowed to have a gun in your home, and you are allowed to have a gun in your car as long as it is not in plain view. And you are allowed to carry a gun directly in route to and from your car. What about concealed carry? If you have a license to carry a handgun, then you are allowed to carry it on your person. There are a number of places into which you cannot bring a handgun in Texas, such as a school, or other places or businesses that have a prominently displayed sign prohibiting concealed carry. If you have any questions or concerns please feel free to contact our Fort Worth criminal defense attorney today.