Self-defense is referred to as a justification defense, such that although the defendant has committed a criminal act prescribed by statute, he or she should not be punished because the circumstances justify the defendant’s actions. Typically, one can use force that they reasonably believe is necessary to protect themselves from imminent unlawful force upon themselves. Texas has a broad self-defense law.
Under Texas Penal Code, self-defense is a justification excluding criminal responsibility. The self-defense statute states that “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.” This defense can be used no matter the alleged criminal statute violation. Other words, it makes no difference if it’s a murder, an aggravated assault with a deadly weapon or a simple bar room fight, the self-defense is always available.
The belief that a force was immediately necessary for self-defense is presumed reasonable where the actor knew or had reason to believe that the person against whom the force was used:
- Unlawfully and with force entered or attempted to enter the actor’s home, vehicle or place of employment;
- Unlawfully and with force removed or was attempting to remove the actor from the actor’s home, vehicle or place of employment; or
- Was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery.
The actor cannot be the one who provoked the person against whom force was used and cannot be otherwise engaged in criminal activity. The use of force is not justified where it is in response to a verbal provocation alone, or to resist arrest or search being made by a police officer.
In Texas, there is no duty to retreat. The Texas Penal Code Section 9.31 (e) states:
“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.”
In determining whether an actor reasonably believed the use of force was necessary, the judge or jury may not consider whether the actor failed to retreat.
The “no duty to retreat” used to be applicable only in one’s home. In 2007, Texas passed a law, much like Florida, which removed the duty to retreat for people who are attacked, so long as they have the right to be present at the location where the force is used. A person’s use of deadly force will be presumed reasonable if someone enters or attempts to enter that person’s home, vehicle or workplace unlawfully and with force.
The duty to retreat has been a major topic in the news the last few years with many cases around the nation that involved deaths that could have been avoidable. The Trayvon Martin case is a prime example of the debate about retreat statutes.
The use of deadly force is not justified unless for defense of self, defense of others, or for the protection of life or health. The actor must reasonably believe the use of deadly force is immediately necessary to protect himself against another’s use or attempted use of deadly force or to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery.
If you have been criminally charged and believe you acted in self-defense, you need to speak with an attorney about your case. We have used the self-defense to when several trials over the years, including a gang murder and an aggravated assault with a deadly weapon where are client used a knife the defend himself and the victim suffered over 300 stitches and staples. The attorneys at The Law Offices of Tad Nelson & Associates can talk to you about your case and assist in your defense. Call our offices today.