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Self defense is an affirmative defense against criminal prosecution that can be raised as legal justification when a person is accused of using force against another or the property of another. Under Texas law, there are instances when nonlethal force may be used in defense of oneself, another, or property. There are narrower instances when a person may use deadly force to defend themselves, another, or even property. In this article, we will discuss self defense, defense of a third party, defense of property, stand your ground, and the Castle Doctrine in Texas.
A man’s home is his castle, and nowhere is that more true than in Texas. Terms like “Castle Doctrine” and “Stand Your Ground” get tossed around in the media frequently, but what do these terms actually mean in the Lone Star State? Do you have a right to pull a shotgun on someone who gets past your fence? What if you pull into your driveway to see someone running off with a jewelry box? This article covers what is broadly described as the “Castle Doctrine” in Texas, including when you can use force, when you can use deadly force, and whether you have a duty to retreat.
Perhaps the easiest way to understand a key provision of the Castle Doctrine is to remember that a King or Queen has no duty to retreat inside their own castle, and if someone unlawfully forces their way into the castle, the King or Queen can use any force available to resist that attack. Texas Penal Code 9.31 and 9.32 together form what is often called the “Castle Doctrine” in Texas. Penal Code 9.31 discusses the use of non-deadly force and 9.32 discusses the use of deadly force. Penal Code 9.41 and 9.42 are also worth looking at because they describe when force and deadly force can be used to protect property. (All these statutes are provided below.) While Texas gives broad rights to individuals to protect themselves against others, always remember they boil down to a question of what was reasonable. Reasonability and the immediate need to use force are two lynchpins of the Castle Doctrine in Texas.
Under the Castle Doctrine, in certain circumstances, you are presumed to have acted reasonably in defending your “castle.” This could be your home, vehicle, or place of employment.
Penal Code 9.32 sets out that person can use deadly force when he reasonably believes it is immediately necessary to:
Generally, a person may use force, but not deadly force, to protect property. There are, however, some important exceptions. Under Penal Code 9.42, deadly force may be used to protect land or property when a person reasonably believes that deadly force is immediately necessary to:
However, the person must also be able to show that he reasonably believed that the land or property could not be protected or recovered by any other means or that the use of non-deadly force would expose him or another to a substantial risk of death or serious bodily injury.
The Castle Doctrine relieves a person of the duty to retreat when he is justified in using deadly force against another if:
Texas Penal Code 9.32(d) further provides that in determining whether or not the actor’s belief was reasonable, the trier of fact may not consider whether the actor failed to retreat. In other words, a person generally does not have to retreat on their property and their decision not to retreat cannot be used as a fact against them in determining whether their belief that deadly force was needed was a reasonable belief or not.
The question of reasonability will always be one for the fact-finder, whether that is a grand jury, a petit jury, or a judge. However, there are instances where reasonability is presumed. The Castle Doctrine in Texas provides a presumption of using force against another person who is:
Yes, the Castle Doctrine extends to your place of employment and your business.
Yes. The Castle Doctrine extends to any vehicle routinely used for transportation, including planes, trucks, cars, golf carts, and ATVs. Vehicles are considered your property and covered by the law if you face an intruder.
If a property owner provokes an individual and that leads to violence or if the property owner is taking part in any criminal activity, the owner is not protected.
A person that is engaged in criminal activity will not be entitled to a castle doctrine defense
Texas law provides that a verbal threat alone is not sufficient to justify using deadly force. So a person saying, “I will kill you” may not be enough to use deadly force, but a person who says, “I will kill you” while holding a knife goes beyond mere words; they have the ability to carry out their threat.
Notice that the law authorizes the use of deadly force only when it is “immediately necessary.” If someone says, “I will come back and kill you tomorrow,” it will be difficult to show the use of deadly force at the time of the statement was immediately necessary.
Yes. Under Penal Code 9.04, you can draw a weapon and threaten a person if you are justified in using force. Note the requirement is not that you had to be justified in using deadly force. The law also requires that when you pull a weapon and make a threat to protect property or a person, you do so with the limited purpose of causing fear in the intruder that you will use deadly force if necessary.
While trespassing on property other than your home alone will not give rise to the lawful use of deadly force, there is a presumption that deadly force is immediately necessary when someone has unlawfully entered or is attempting to enter by using force. Additionally, deadly force may be used against an intruder at night who you reasonably believe will imminently commit theft or criminal mischief.
Texas Penal Code 9.41 permits the use of force to protect property. It does not permit the use of deadly force to merely protect property under most circumstances. This changes when someone attempts to forcefully enter your house or enters your house by force. Your house includes your porch and attached garages, but does not include detached garages. It also changes when you can meet the elements of Penal Code 9.42.
Texas Penal Code Section 9.42 requires that all three of the following circumstances exist in order for you be justified in employing deadly force to protect property.
1. You must be justified in using force;
2. Must only be to the degree you reasonably believe deadly force is immediately necessary to prevent:
a. the imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; orb. Someone fleeing from those things; or
3. To the degree that you reasonably believe that
a. The land or property cannot be protected or recovered by any other means, orb. Using a lesser force would expose you or someone else to the substantial risk of death or serious bodily injury.
Generally, you can use force “to the degree” a person reasonably believes such force is “immediately necessary” to protect against another person’s use or attempted use of unlawful force. In other words, if someone is about to clock you, you are allowed to defend yourself with your hands…but don’t expect the law to protect you if you bring a gun to that fistfight. Generally speaking, you can defend yourself with the same level of force that is being used against you. Using deadly force, however, has additional requirements. You would have to show that you used to force to protect against the other person’s use of unlawful deadly force or to prevent an aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
A person can only “stand their ground” if they have a right to be present at the location, they did not provoke the person against whom the force is being used, and were not engaged in criminal activity at the time they are using the force. Threatening to kill someone while you display a deadly weapon is generally going to be the second-degree felony offense of Aggravated Assault with a Deadly Weapon.
Verbal provocation alone is never a justification for the use of force. It doesn’t matter what the other person is saying. If you respond with anything from a fist to a firearm, you are going to be charged with a criminal offense. That includes a person getting in your face with their finger waving. That includes an unarmed person saying they are going to kill you.
If a gunman says, “If you come within three-foot of me, I’m going to kill you,” and then the other party violates the condition, it still does not give the gunman the legal authority to shoot.
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If you or a loved one are facing criminal charges after using force to protect yourself, family, home or property, you need an experienced attorney by your side. Call us today at 817-203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:
