On television, the hero can commit all kinds of assault or even murder and be back to their normal lives next week just because they say they were acting in self-defense. Real life is quite a bit more complicated.
That’s not to say that self-defense can’t be used as a criminal defense in a Texas case. Quite the opposite. You may have seen a few local headlines yourself, such as this story: Gun-wielding Texas man who shot his partner’s ex=husband during furious child custody row will not be charged after shooting is ruled to be in self -defense.
It just doesn’t work as neatly or as cleanly as it might in fiction, and you might still get arrested for assault or murder before the defense may be successfully used.
According to Texas Penal Code 9.31, a person is justified in using force against another “when and to the degree the actor reasonably believes the force is necessary to protect the actor against the other’s use or attempted use of unlawful force.”
This means in order to use this defense successfully, a defense attorney must prove:
- You had reason to believe that the person you assaulted was going to harm you or someone else.
- You only used the minimum amount of force it took to keep them from doing so.
- You did not provoke or invite the attack.
- You were not committing any crime at the time.
Texas also has a “castle doctrine” statute, which means the law will presume the force was necessary if you are defending your own home or vehicle against an intruder, so long as you didn’t provoke the victim or were not committing a crime yourself. You also would need to have a reasonable belief that the victim was breaking and entering or trying to unlawfully remove you from your home or car.
You may sometimes use force in the defense of your own property, but it has to be proportional to the conduct. If you catch someone trying to burn your house down an assault or even deadly force may be justified. If you catch them spray painting on your property you probably would not be justified in doing more than grabbing them.
Can You “Stand Your Ground” in Texas?
You have no duty to retreat only if:
- You had the right to be where you were when you used force.
- You did not provoke the victim.
- You were not engaged in criminal activity.
In all other cases you have the duty to retreat if you can reasonably do so without endangering your life, or another person’s life.
You can still be arrested after a justified use of force. You should be careful what you say before the police arrive and you should not try to talk them out of arresting you or into letting you go. Once the police are on the scene, you’re better off remaining silent and asking for a lawyer.
Your attorney can use the justified force defense on your behalf later. Early in the process the focus will need to be on getting you out on bail and on preparing your defense. The more you talk, the more likely it is you will make the prosecution’s case for them. For example, you might hand the prosecution evidence that you provoked the attack, which would mean that the justified use of force defense will not apply.
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