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Self-Defense And The Use Of Deadly Force Under Texas Law

  • By: Ryan Hardy of Hardy Law Group, PLLC
  • Published: August 1, 2019
  • Category: Criminal Defense
Self-Defense And The Use Of Deadly Force Under Texas Law

In the past few years, there’s been significant news coverage and public outrage over the shooting deaths of civilians by law enforcement. These events have caused a shift in opinion for a large portion of the public, inspiring an entire social movement against unjustified police brutality. Although the Texas Penal Code treats law enforcement differently with regard to the use of deadly force, these events have brought to mind the use of self-defense and deadly force in the civilian context.

In order to understand self-defense and the use of deadly force in Texas, we must start at an obvious place: the law. Below are the relevant statutes:

Texas Penal Code § 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.

Self-DefenseTexas Penal Code § 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.

Tex. Pen. Code 1.07(42) “Reasonable belief” means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.

Tex. Pen. Code 1.07(48) “Unlawful” means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.

A person also has the right to defend against apparent danger to the same extent as if the danger was real. HN4 Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996).

As you can see from the statutes, there is a significant subjective component to the law when it comes to justified self-defense. In the context of racial tension and alleged police brutality, self-defense laws, including “Stand your ground” and “Castle doctrine” concepts, have come under increasing scrutiny in the past years.

The bottom line

Under the law, a person’s use of deadly force will be presumed reasonable if someone enters or attempts to enter, that person’s occupied home, vehicle or workplace “unlawfully and with force.” There is no duty to retreat, as there once was, even if it was possible to retreat. The use of deadly force must have been immediately necessary to protect the person or the person’s property. However, it is important to note that the stand your ground law applies only if the person claiming self-defense had the right to be in the place where the deadly force was applied, was not engaged in illegal activity, and was not responsible for causing the situation which necessitated the use of deadly force.

Ryan Hardy of Hardy Law Group, PLLC

About the Author Attorney Ryan Hardy graduated from the University of Texas at Austin with a BS in
Government/Political Science and a minor in Business Administration...Read More