Can You Claim Self-Defense in Texas If You Were Committing a Crime?

In Texas, being engaged in criminal activity does not automatically eliminate your right to claim self-defense. It costs you a legal presumption, not the defense itself. A landmark 2026 decision from the Texas Court of Criminal Appeals, Cuevas v. State, made this distinction clear — and reversed a murder conviction because prosecutors spent an entire trial telling the jury something that was not the law.

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What Did the Texas Court of Criminal Appeals Decide in Cuevas v. State?

On April 2, 2026, the Texas Court of Criminal Appeals issued its opinion in Cuevas v. State, No. PD-0144-25. The court reversed Victor Hugo Cuevas’s murder conviction and ordered a new trial. The reason? Prosecutors repeatedly told the jury — from voir dire through closing argument — that a person cannot claim self-defense if they were committing a crime at the time. The trial judge approved that position at every turn. The Court of Criminal Appeals said that was wrong, and that it caused real harm.

The facts were dramatic. Cuevas went to a parking lot in Fort Bend County to sell marijuana. According to his testimony and that of a witness, the buyer — Ose — pressed a gun to Cuevas’s head, robbed him of his marijuana and phone, and then threatened to kill him as he cocked his weapon. Cuevas fired seven shots into the car. Ose died. Cuevas was charged with murder and claimed self-defense. The jury convicted him anyway.

At sentencing, however, the same jury found that Cuevas acted under sudden passion — a finding that requires believing the defendant’s version of events. The court saw this for what it was: a jury that believed Cuevas’s story but thought the law did not allow them to acquit him because he was dealing drugs. That misunderstanding cost Cuevas his self-defense claim.

What Is the Actual Law on Self-Defense in Texas?

Texas self-defense law under Tex. Penal Code § 9.32 has two distinct layers. Confusing them is a serious — and surprisingly common — mistake.

Layer One: The Right to Claim Self-Defense

Under § 9.32(a), a person is justified in using deadly force when they reasonably believe it is immediately necessary to protect themselves against another person’s use or attempted use of unlawful deadly force. The statute does not say anything about criminal activity stripping away this right. If you are facing a genuine threat of death or serious bodily injury, you may use deadly force to defend yourself — even if you were doing something illegal at the time.

Layer Two: The Presumption of Reasonableness

Under § 9.32(b), there is a separate, additional benefit available to defendants in certain situations: a presumption that their belief in the necessity of deadly force was reasonable. To get this presumption, the defendant must not have been engaged in criminal activity at the time (other than a Class C misdemeanor traffic violation). They also must not have provoked the confrontation, and the threat must involve specific qualifying conduct by the other person.

This is where the prosecutor in Cuevas got it wrong — repeatedly and prejudicially. Being involved in criminal activity does not eliminate the underlying self-defense right. It only removes the presumption. The defendant still gets to argue self-defense. They just have to prove it the hard way, without the legal head start that the presumption provides.

What Is the “Presumption of Reasonableness” and Why Does It Matter?

Think of the presumption as a head start in a race. Without it, both sides start at the same line and the jury weighs the evidence with no thumb on the scale. With the presumption, the defendant starts ahead — the jury is instructed to assume the belief in deadly force was reasonable unless the State proves otherwise.

Losing the presumption does not mean losing the defense. It means the defendant has to convince the jury of reasonableness through evidence and argument rather than through a legal instruction that tells the jury to presume it. That is a harder path. But it is still a path.

The Court of Criminal Appeals emphasized this point in its analysis. An inapplicable but legally correct instruction that purports to benefit a defendant would generally not harm a defendant. The danger arises when prosecutors take that instruction and invert it — telling the jury it means the defendant has no defense at all. That is exactly what happened in Cuevas.

When Should the Presumption Instruction Go to the Jury?

This is the procedural crux of the case. Texas law requires a trial court to instruct the jury on “the law applicable to the case.” A presumption instruction only qualifies as applicable law if the presumed fact is actually in dispute. Under Tex. Penal Code § 2.05(b)(1), the existence of a presumed fact must be submitted to the jury “unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.”

In Cuevas, it was undisputed — admitted by the defendant himself on the stand — that he was involved in criminal activity when the shooting occurred. The presumption was never triggered. Putting it in the jury charge anyway was error because it gave the prosecutor a loaded weapon: a legitimate-looking instruction that she spent the entire trial misrepresenting to the jury.

How Did the Court Analyze the Harm?

Because the error was objected to at trial, the Court of Criminal Appeals applied the Almanza standard: the conviction is reversed if the defendant suffered “some harm” — meaning actual harm, not merely theoretical harm. The court evaluated four factors.

 

The Jury Charge

The abstract portion of the charge correctly stated the presumption language. The application paragraph did not explicitly reference it. Normally that would weigh against harm, since the application paragraph is the “heart and soul” of the jury charge. But the application paragraph used the phrase “reasonably believing,” which the court found logically linked to the abstract presumption instruction — incorporating it by reference. This factor weighed only slightly in the State’s favor.

Other Relevant Record Information

The State previewed its misstatement of the law during voir dire with slide presentations telling the jury that deadly force is reasonable only if the defendant “was NOT engaged in criminal activity.” The trial judge overruled every defense objection and sustained the State’s objection when defense counsel tried to correct the record in his opening statement. The court noted that the trial judge “consistently put the stamp of judicial approval on the State’s misstatements of law.” This factor weighed heavily in favor of harm.

The Evidence

The court of appeals had found the evidence of guilt “overwhelming.” The Court of Criminal Appeals disagreed. The drug deal happened in a public parking lot in front of a restaurant, with witnesses all around. Cuevas left his cell phone and marijuana in Ose’s car — evidence that the robbery was a surprise. A third-party witness, Jesse Richey, testified that two weeks before the shooting, Ose had told him he planned to rob someone named Victor and called him “an easy lick.” That testimony came from outside Cuevas’s circle entirely. This factor weighed at least moderately in favor of harm.

Arguments of Counsel

The State’s rebuttal argument doubled down on the misstatement: “He cannot use deadly force to protect against the imminent commission of aggravated robbery if he’s also committing another crime. You can’t do it.” Defense counsel objected. The judge overruled it. The rebuttal came last — after the defense had already closed — giving Cuevas no opportunity to respond. This factor weighed at least moderately in favor of harm.

Weighing all four factors together, the court found that Cuevas suffered at least some harm. The conviction was reversed and remanded for a new trial.

What Was the Role of the Sudden Passion Finding?

Perhaps the most revealing aspect of the opinion involves what happened at the punishment phase. After convicting Cuevas of murder, the same jury found that he acted under the influence of sudden passion arising from an adequate cause — a finding under Tex. Penal Code § 19.02(d) that reduced the offense from a first-degree to a second-degree felony.

Both sides told the jury during punishment arguments that a sudden passion finding required believing Cuevas’s version of events. The State said so explicitly. The Court of Criminal Appeals drew a stark inference from this: the jury believed that Cuevas had been threatened with deadly force and reacted in the heat of the moment, but thought the law barred a self-defense acquittal because he was dealing drugs. The jury’s finding of sudden passion combined with its rejection of self-defense suggests it believed the defendant’s story but also believed the State’s interpretation of the presumption issue, and therefore thought its hands were tied.

That is not how self-defense law works in Texas. And that mistaken belief, reinforced by the prosecutor and endorsed by the trial court, is precisely what the Court of Criminal Appeals corrected.

What Does This Mean for Your Self-Defense Case?

If you or someone you love is facing an assault or murder charge and the facts involve an element of self-defense, the legal nuances matter enormously. A few key takeaways from Cuevas:

Being engaged in illegal activity does not eliminate a self-defense claim. You lose the presumption of reasonableness, but you retain the right to argue that your belief in the need for deadly force was objectively reasonable under the circumstances. That argument can still win — it is just harder to make without the legal presumption.

Prosecutors sometimes misstate this law. The misstatement in Cuevas was not subtle. It was repeated from voir dire through closing arguments, in slide presentations, in hypotheticals, and in rebuttal — all while the trial judge approved it. Defense counsel must be vigilant about objecting to these misstatements and protecting the record.

The jury charge matters. Improper instructions — even those that look facially correct — can be weaponized by prosecutors to mislead juries. Experienced criminal defense lawyers fight hard during the charge conference, precisely because what goes into the charge shapes what arguments can be made to the jury.

If you are facing a serious violent crime charge in Texas where self-defense is at issue, do not try to navigate this alone. Speak with a Texas homicide defense attorney who understands how courts analyze self-defense claims — and how to protect your rights at every stage of trial. Schedule a free consultation with Varghese Summersett today.

A Real Example: Varghese Summersett’s Track Record in Serious Violent Cases

The legal principles in Cuevas are not abstract. They play out in courtrooms across Texas every week. Varghese Summersett has secured Not Guilty verdicts at jury trial in murder cases — including a 2016 acquittal in a case tried to verdict. Results like these require more than knowing the law. They require attorneys who can identify the theory, construct the argument, protect the charge, and deliver it in front of a jury under pressure. Past results do not guarantee future outcomes.

What to Expect From Varghese Summersett

When your life and freedom are on the line, you deserve attorneys who have been here before. At Varghese Summersett, we handle serious violent crime charges — including murder, manslaughter, and aggravated assault — across Texas. Here is what you can expect from our team:

Experienced trial attorneys. Our lawyers have tried serious felonies to verdict, including murder cases. We know how to build and preserve a self-defense record from day one — including voir dire, the charge conference, and closing arguments.

Board-certified criminal defense. The firm has three attorneys board-certified in Criminal Law by the Texas Board of Legal Specialization — a distinction held by fewer than one percent of Texas lawyers. Board certification means demonstrated expertise, peer review, and ongoing testing in your specific area of law.

A team approach. With 70+ legal professionals across Fort Worth, Dallas, Southlake, and Houston, we have the depth to handle complex, high-stakes cases without cutting corners.

Relentless advocacy. From the moment you call, our attorneys are working on your case. We fight pretrial motions, charge conferences, and — when necessary — trial. Over 1,100 five-star reviews reflect a commitment to standing beside clients at every step.

Award-Winning Legal Excellence

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Watch: Self-Defense and Deadly Force in Texas

Frequently Asked Questions: Self-Defense and Criminal Activity in Texas

Can you claim self-defense in Texas if you were committing a crime?

Yes. Texas law does not bar a self-defense claim simply because the defendant was engaged in criminal activity at the time. What criminal activity does is eliminate the presumption of reasonableness under Tex. Penal Code § 9.32(b). The defendant must still prove reasonable belief in the necessity of deadly force through evidence and argument — but the right to raise self-defense remains intact. The Texas Court of Criminal Appeals confirmed this in Cuevas v. State (2026).

What is the “presumption of reasonableness” in Texas self-defense law?

Under § 9.32(b) of the Texas Penal Code, a defendant’s belief that deadly force was immediately necessary is presumed to be reasonable if they were not engaged in criminal activity (other than a Class C traffic violation), did not provoke the confrontation, and the other person was committing certain qualifying acts. The presumption functions like a legal head start — the jury is instructed to assume reasonableness unless the State disproves it. Defendants who were committing crimes at the time lose this presumption but do not lose the underlying defense.

What happened in Cuevas v. State?

In Cuevas v. State, No. PD-0144-25 (Tex. Crim. App. April 2, 2026), the Texas Court of Criminal Appeals reversed a Fort Bend County murder conviction because prosecutors repeatedly told the jury that the defendant could not claim self-defense since he was involved in a drug deal. That was a misstatement of the law. The actual law only cost him the presumption of reasonableness — not the self-defense claim itself. The court found the error caused actual harm and ordered a new trial.

What is “sudden passion” in a Texas murder case?

Under Tex. Penal Code § 19.02(d), a defendant charged with murder may argue during the punishment phase that they acted under the influence of sudden passion arising from adequate cause. If the jury finds this by a preponderance of the evidence, the offense is reduced from a first-degree felony to a second-degree felony — carrying 2 to 20 years instead of 5 to 99 years. In Cuevas, the jury’s sudden passion finding at punishment — after convicting at guilt-innocence — strongly suggested the jury believed the defendant’s account of events but felt barred from acquitting due to his criminal activity.

What is the Almanza harm standard in Texas criminal appeals?

Under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985), the standard for reversible jury charge error depends on whether the error was objected to at trial. If the error was objected to, the conviction is reversed if the defendant suffered “some harm.” If the error was not objected to, the higher standard of “egregious harm” applies. Courts evaluating harm look at the jury charge as a whole, arguments of counsel, the evidence, and any other relevant record information.

If self-defense is part of your case, every decision matters — from the first phone call to the last word of closing argument. Contact Varghese Summersett for a free consultation with a Texas criminal defense attorney who knows how to fight for you.