What is Self Defense in Texas?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.
What is the Castle Doctrine in Texas?
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. The Castle Doctrine in Texas is a legal principle that allows residents to use force, including deadly force, to defend themselves, their family, and their property from an intruder or attacker. This doctrine is rooted in the idea that an individual’s home (or “castle”) is their sanctuary, and they have the right to protect it and themselves without the duty to retreat. Texas also extends this protection to other places, such as an individual’s vehicle or workplace, where they have a legal right to be. In Texas, the Castle Doctrine is codified under the Texas Penal Code, specifically in sections 9.31, 9.32, and 9.33. These sections outline the circumstances under which an individual can use force or deadly force in self-defense or defense of others, and provide legal protections for those who act within these parameters. Some of the key provisions include:
- The use of force is justifiable if the individual reasonably believes that it is immediately necessary to protect themselves or someone else from the unlawful use of force by an intruder.
- The use of deadly force is justifiable if the individual reasonably believes it is necessary to protect themselves or someone else from imminent death or serious bodily injury, or to prevent the commission of a violent crime such as aggravated kidnapping, murder, sexual assault, or robbery.
- There is no duty to retreat in Texas if the individual has a right to be in the location where the force is used and they are not engaged in criminal activity at the time.
- The Castle Doctrine does not apply if the individual using force is the initial aggressor, provoked the attack, or is engaged in criminal activity at the time.
When is a Person Justified in Using Deadly Force to Protect a Person?
Penal Code 9.32 sets out that person can use deadly force when he reasonably believes it is immediately necessary to:
- protect against another’s use or attempted use of unlawful deadly force, or
- to prevent an aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
When is a Person Justified in Using Deadly Force to Protect Property?
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:
- robbery and aggravated robbery,
- theft at night, or
- criminal mischief during nighttime;
- prevent someone fleeing with property after committing burglary, robbery, aggravated robbery, or theft during the nighttime.
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.
Is There a Duty to Retreat Under the Castle Doctrine?
The Castle Doctrine relieves a person of the duty to retreat when he is justified in using deadly force against another if:
- the actor has a right to be present at the location where the deadly force is used
- the actor has not provoked the person against whom the deadly force is used, and
- the actor is not engaged in criminal activity at the time that the deadly force is used.
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.
What is Reasonable Under the Castle Doctrine?
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:
- unlawfully and with force entering or attempts to enter your habitation, vehicle, or workplace; or
- attempting to remove you, by force, from your habitation, vehicle, or workplace;
- committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
Does the Castle Doctrine Extend to my Work Place or Business?
Yes, the Castle Doctrine extends to your place of employment and your business.
Does the Castle Doctrine Extend to my Vehicle, RV, and Gator?
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.
When is an Owner Not Entitled to a Castle Doctrine Defense?
- Provoking the difficulty
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.
- Otherwise Breaking the Law
A person that is engaged in criminal activity will not be entitled to a castle doctrine defense
Can You Shoot Someone on Your Property Who Makes a Verbal Threat?
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.
Can You Shoot Someone Who Makes a Threat of Future Harm?
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.
Can I Threaten to Shoot Someone When I Am Authorized to Only Use Non-Deadly Force?
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.
Can You Shoot a Trespasser?
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.
Can I Shoot Someone to Protect my Property?
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.
Misconceptions About the Castle Doctrine
- Misconception One: “Standing Your Ground” means you can use deadly force and you don’t have to back down during an argument.
- Misconception Two: You can Shoot Someone for a Getting in Your Face
- Misconception Three: You Can Set Conditions that Allow You to Shoot
Things to Remember about Self-Defense in Texas
- A defendant is entitled to a jury instruction on self-defense if the issue [of self-defense] is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.
- When reviewing a trial court’s decision denying a request for a self-defense instruction, a reviewing court considers the evidence in the light most favorable to the defendant’s requested submission.
- A trial court errs in denying a self-defense instruction if there is some evidence, from any source, when viewed in the light most favorable to the defendant, that will support the elements of self-defense.
- Under Penal Code § 9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. The use of force against another is not justified in response to verbal provocation alone.
- Under Penal Code § 9.32, a person is justified in using deadly force if he would be justified in using force under Tex. Penal Code § 9.31, and he reasonably believes that deadly force is immediately necessary to protect himself against another’s use or attempted use of deadly force.
- Under Penal Code § 9.04, the threat of force is justified when the use of force is justified by chapter 9. A threat to cause death or serious bodily injury by the production of a weapon or otherwise, provided 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.
Review: Experienced Fort Worth Criminal Defense Attorney Rating: ★★★★★ 5 / 5 starsRated By Marcela A.
From the very first call, I could tell Varghese Summersett was a top notch firm. I called many firms before them and they immediately stood out for their professionalism and prompt response time. They were available for a consultation within 24 hours of my initial call. After retaining them, they were not only always available for calls, questions, and/or meetings but they kept our family in the loop about every step along the way. They outlined the process and set clear expectations from day one. We never felt like we were in the dark. Every one we came in contact with from the receptionist to the various attorneys, was friendly and ready to help. The outcome of our loved one’s case was better than we ever expected it to be. Our family feels fortunate to have had Varghese Summersett by our side during this long a difficult legal process. They made a terrible situation as smooth and painless as possible. I would highly recommend this firm to anyone in need of a defense attorney.
Contact UsIf 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:
- Discuss the facts of your case;
- Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
- Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.