Self Defense Law–Texas

Posted on Jul 27, 2012


When a person is charged with a violent crime such as aggravated assault, simple assault or domestic violence (called assault family violence) in Texas, the criminal defense attorney will always assess whether the case was one of self-defense.

Self Defense Scenario

The Law on Self-Defense

In sum, a person can defend herself using force against someone else, only to the extent that this force is necessary for protection.  Physical force is never permissible in law if it is used while the person defending herself is carrying out a crime.  The self defense law will not enable a person to use force as a reaction to someone verbally abusing them.  Self defense law does not enable a person to have provoked the fight in the first place.

Let’s take the example of Jeff and Bob.

 Example 1:  Jeff is walking down the road.  Bob is walking towards Jeff.  Bob takes out a knife and points it at Jeff while he runs at him aggressively.  Jeff did not provoke Bob to do this, but he thinks Bob is going to stab him, or cut him.  Jeff is permitted to take out a knife in his own defense because he is not the aggressor.  It is also possible, depending the specific facts, that Jeff could take out a gun as well since, Bob has displayed a deadly weapon (the knife).

Example 2:  Bob is running toward Jeff.  Jeff does not know Bob.  Jeff takes out a gun, and shoots Bob, killng him.  This scenario would not enable Jeff to successfully use self defense  during his murder trial.  It was not reasonable for Jeff to believe he needed to shoot Bob. The measure of force was not reasonable.  It is not clear given this example whether any force was necessary at all.  A person can only use force against another when there is a clear imminent threat of bodily harm or death.

Example 3:  On July 28th, 2012, Jeff tells Bob he is going to kill Bob.  Bob sees Jeff with a loaded gun on the same day.  Jeff enters the premises, and Bob thinks Jeff still has the loaded gun.  Bob can shoot Jeff and raise Self Defense during his case.

Example 4: Bob is driving Jeff home.  Jeff threatens to kill Bob and tells him that he has a gun under the car floorboard.  Jeff then begins grabbing at Bob.  Bob pulls car over and shoots Jeff.  Self defense can be raised in this situation.

Example 5: Medical examiner testifies that Bob was stabbed 52 times all over his body.  Jeff raises self defense at his trial.  Self defense law will not protect Jeff in this circumstance because 52 stabbings are not “reasonably necessary” to protect oneself.  The only force permitted is the minimum amount of force necessary to prevent the imminent bodily harm or death.

It should be noted that Baker’s Texas Penal Code Handbook from 2008 clearly indicates that more often than not in Texas, a defendant fails to succeed in using the self defense law to get out of the criminal charges.  Self defense it extremely fact dependent.  All of the surrounding circumstances will be assessed by the jury when they are deciding whether the use of force was permissible under the self defense law.  For instance, killing someone and then afterwards acting casually about it, can lead to a jury finding that you were not a victim employing self defense, but rather an aggressor trying to hide behind the self defense law.  How a person acts before, during and after the assaultive event will be looked at with a microscope by an able jury.

Need a Self-Defense Lawyer?  Call us at (210) 271-2800.  See our recent success at getting assault charges dismissed here.

Example of a time, when a kid defended himself, and the Self Defense Law would allow for it

Biggest Self Defense Story in 2012- Trayvon Martin

In 2012, the biggest news regarding self-defense was certainly the Trayvon Martin case.  This case deals with the controversial Stand Your Ground Defense.

The “Stand Your Ground Defense Law” essentially means that when someone is going to attack a person in a deadly manner, the person being attacked has no obligation to retreat, but can intact use lethal force.  Texas does have the Stand Your Ground Defense Law.  This year in Texas, a defense attorney attempted to use it in a murder trial, but lost.

Resources on Self Defense

SHOUSE California Self Defense Lawyer’s video — Here you will find a video with an attorney that does a great job of explaining self defense law.

We regularly recommend Attorneys aside from ourselves on our criminal defense website.  Please note that we are not in anyway affiliated with our recommendations.  If we are affiliated with any recommendation, we will tell you.  (No trickery here!) A great self defense lawyer based in San Antonio, Texas is Mark Stevens. He is an excellent trial Attorney, with unprecedented preparedness for his cases.

Related Topic to “Self” Defense: Hacking Defense?

Will we someday have a hacking defense? Tech Blog wrote an article on Hacking Defense , which essentially asked the question, is it okay to hack someone’s computer if they hacked yours?  As computers continue to be a place that people spend a majority of there time on, increased crime in the cyber world is inevitable.  Just like more crime occurs in higher populations.  Where there are people, a certain percentage of them will be criminals.  As identity theft, trade secret stealing and just the everyday traditional hacking of computers continues to grow, we can expect increased instances of cyber crime.  Will cyber law criminal defense attorneys someday have a “hacking defense” to turn to?  Just like with self defense law, our justice system has a deeply embedded principle that when someone is attacking us, we as Texans and Americans do not have to roll over and take it.  Fight back.  Why shouldn’t this principle be embedded into our cyber law?

The Texas Penal Code on Self Defense:

Section 9.02 JUSTIFICATION AS A DEFENSE

It is a defense to prosecution that the conduct in question is justified under this chapter.

Section 9.03 CONFINEMENT AS JUSTIFIABLE FORCE

Confinement is justified when force is justified by this chapter if the actor takes reasonable measures to terminate the confinement as soon as he knows he safely can unless the person confined has been arrested for an offense.

Section 9.04 THREATS AS JUSTIFIABLE FORCE

The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Section 9.05 RECKLESS INJURY OF INNOCENT THIRD PERSON

Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

Section 9.21 PUBLIC DUTY

(a) Except as qualified by Subsections (b) and (c), conduct is justified if the actor reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process.

(b) The other sections of this chapter control when force is used against a person to protect persons (Subchapter C), to protect property (Subchapter D), for law enforcement (Subchapter E), or by virtue of a special relationship (Subchapter F).

(c) The use of deadly force is not justified under this section unless the actor reasonably believes the deadly force is specifically required by statute or unless it occurs in the lawful conduct of war. If deadly force is so justified, there is no duty to retreat before using it.

(d) The justification afforded by this section is available if the actor reasonably believes:

(1) the court or governmental tribunal has jurisdiction or the process is lawful, even though the court or governmental tribunal lacks jurisdiction or the process is unlawful; or

(2) his conduct is required or authorized to assist a public servant in the performance of his official duty, even though the servant exceeds his lawful authority.

Section 9.22 NECESSITY

Conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

Section 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 that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(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.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other’s use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or

(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Section 9.32 DEADLY FORCE IN DEFENSE OF PERSON

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or

(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(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.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Section 9.33 DEFENSE OF THIRD PERSON

A person is justified in using force or deadly force against another to protect a third person if:

(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and

(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

Section 9.34 PROTECTION OF LIFE OR HEALTH

(a) A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself.

(b) A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other’s life in an emergency.

Section 9.41 PROTECTION OF ONE’S OWN PROPERTY

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Section 9.42 DEADLY FORCE TO PROTECT PROPERTY

A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Section 9.43 PROTECTION OF THIRD PERSON’S PROPERTY

A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:

(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person’s land or property; or

(C) the third person whose land or property he uses force or deadly force to protect is the actor’s spouse, parent, or child, resides with the actor, or is under the actor’s care.

Section 9.44 USE OF DEVICE TO PROTECT PROPERTY

The justification afforded by Sections 9.41 and 9.43 applies to the use of a device to protect land or tangible, movable property if:

(1) the device is not designed to cause, or known by the actor to create a substantial risk of causing, death or serious bodily injury; and

(2) use of the device is reasonable under all the circumstances as the actor reasonably believes them to be when he installs the device.

Need a Self-Defense Lawyer?  Call us at (210) 271-2800.  See our recent success at getting assault charges dismissed here.

A related fact about us! Justin and Megan Cook take classes in the self defense martial art called Brazilian JuJitsu

 

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