Updated: September 17, 2021; Original Post: March 28, 2019
Have you been arrested for an assault charge in Texas? Did you feel that you did nothing wrong? Was the so-called victim the true aggressor? Were you doing all that you could to defend yourself?
Every Texan has the right to defend themselves against the use of force or violence. That right not only applies to defending yourself, but also others, and in some cases, your home as well.
However, it’s important to know exactly how Texas laws are laid out when it comes to the level of force you are entitled to use, and the scenarios in which you can use it. Otherwise, you may end up in your attorney’s office discussing defense strategies for assault charges.
In this post, we take a look at when the use of force is justified and when it crosses the line to assault according to Texas Penal Code. If you still have questions by the end, feel free to get in touch with our office.
Scenarios of Self-Defense in Texas
Texas Penal Code states that you are justified in using force against another person when you believe it is necessary to protect yourself. Specifically, you are entitled to use force to the same degree as the other party’s use or attempted use of unlawful force.
Here are the three primary conditions in which Texas allows you to use force against another person:
- Someone was unlawfully and forcefully entering or attempting to enter your home, vehicle, or place of business or employment
- Someone was unlawfully and forcefully removing or attempting to remove you from your home, vehicle, or place of business or employment
- Someone was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery
Keep in mind, an assault is only considered self-defense in these scenarios when the defender has not provoked the person against whom the force was used, and must not have been otherwise engaged in criminal activity beyond a traffic violation at the time.
Under the first scenario listed above, if someone unlawfully and forcefully enters into your residence, you have a right to use deadly force. Some people refer to this as the Castle Rule or Castle Law. Technically, under common law, the most sacred place a man can have is his home. We have the utmost right and expectation of privacy and protection in our homes.
Whenever someone attempts to force their way in or break into your home, you have the right to use deadly force. There is a presumption that the perpetrator entering into the residence will be using deadly force or will pose a harm to you or your family.
Under the second and third scenario listed above, if someone is attempting to remove you from your home or commit an aggravated crime against you, you are permitted to use deadly force in order to protect yourself from the immediate threat of danger posed by someone attempting to enter into your residence with a weapon or attempting to sexually assault you.
Note, too, that Texas law also entitles you to use force to resist arrest or search when a peace officer (or any other person acting under the direction of the peace officer) uses greater force than necessary to make the arrest or perform the search – or when the defender reasonably believes they are using greater force than necessary. This is a touchy situation because the inquiry as to whether the force used in self-defense was necessary will be determine by an analysis of the totality of the circumstances.
One example is the George Floyd murder trial that took place. Hypothetically, Mr. Floyd, under Texas law, would have had the right to defend himself from the police office cutting off his circulation and breathing. The jury in the trial ruled that the officer used greater force than was necessary and did so intentionally resulting in Mr. Floyd’s death. As such, if Mr. Floyd had been able to take action to defend himself, it would have been justified under Texas self-defense law.
Texas Self-Defense Laws: Tricky Situations
Sometimes we get into a situation and want to quickly back-pedal out, but it doesn’t work out the way we hope. Let’s examine some unique situations that provide some grey areas as to the application of Texas self-defense law.
If a person does provoke another party, but abandons the provocation and clearly communicates that intent to the one they’ve provoked, but the other party continues or attempts to continue to use unlawful force against that person, there may be a case for self-defense.
Additionally, under a portion of Texas self-defense law known as “Protection of Life or Health,” a person is justified in a) using force (but not deadly force) to prevent someone from committing suicide or inflicting serious bodily injury to him or herself, and b) using force (including deadly force) against another person when immediately necessary to preserve someone else’s life.
If a person has the right to be at the location where force is used, and has not provoked the person they used force against, and there is no other criminal activity happening at the time, that person is not required to retreat before using force. This will be further discussed below.
For example: what if you are pulling into your apartment complex and as you pull into your parking spot, you are confronted by someone that is aggressively pressing against you and has their hand behind their back making threats. You are a concealed handgun license holder so you immediately pull out your weapon and hold it down to the ground to attempt to stop this person. However, this effort does not work. Instead, this assailant begins to charge at you while making threats and holding his hand behind his back like he is reaching for something. What can you do? Can you pull the gun and point it at the assailant to stop him? Yes! In this situation, there is a reasonable belief that the assailant may have a weapon that he is concealing and he has made it clear his intention to inflict serious bodily injury or death because of the threats. Pointing the weapon at the assailant would be a reasonable effort to protect oneself in this situation.
A seasoned criminal defense attorney will be able to evaluate your case and help navigate a defense in any of these more unique situations.
Stand Your Ground Law in Texas
You’ve heard the analogy that your home is your castle, and in many states, as king or queen of your castle, the law does not require a person to retreat from anyone who has no right to be in your home. In Texas, there is no duty to retreat, either. However, the legal term here is “stand your ground.”
Essentially, Texas Penal Code describes the use of equal (up to and including deadly) force as legal when you reasonably believe someone is attempting to use force in order to unlawfully enter your “habitation.”
However, there is a highly limited definition of what qualifies as a person’s habitation. It is the “structure or vehicle adapted for the overnight accommodation of persons; and includes each separately secured or occupied portion of the structure or vehicle; and each structure appurtenant to or connected with the structure or vehicle.”
For example, Texas would not consider a detached garage a part of your “castle,” but if someone unlawfully and forcefully enters your attached front porch, you are well within your rights to “stand your ground.”
What Force Is Legal To Protect My Property?
What can you do if someone tries to destroy your property? What if someone is trying to steal your property? Maybe you yell at them but it doesn’t work? Maybe you threaten them but they continue to destroy your property. What legal actions can you take to protect and defend your property?
Under Texas self-defense law, you are not permitted to use deadly force to protect your property. In other words, you can not shoot someone for protection of property. However, you can use reasonable force necessary to prevent harm to your property. You may not be able to kill someone for property theft or damage but you can use non-deadly force to subdue or stop the assailant from continuing the crime.
For example: what if you are at home minding your own business and your outside security cameras alert that someone is snooping around your driveway. You look at the cameras and see someone trying to break into your car. What can you do? First thing you should do is call the police. Let the police know that an attempted theft is in progress and you need someone immediately. What if the perpetrator has now broken into your vehicle and attempting to steal your car.
Can you go outside with your gun and confront the perpetrator? Yes! Can you shoot him if he doesn’t stop what he is doing? NO! Here is the distinction. You may approach the perpetrator and use the threat of force to attempt to convince him to discontinue the crime but you are not permitted to fire into the car only to protect your property. What if your child is in the car with him? That could pose a different scenario. If you reasonably believed that the perpetrator was attempting to kidnap your child or assault your child, you may now use more aggressive force to protect the life of another person.
When Texas Says It’s Not Self-Defense
There are some situations in which the use of force is never justified in a court of law. When someone is only verbally provoked – no sign of a weapon, no physical contact or threat of physical contact – the use of force is always considered assault.
Also, when the actor brandishes (or even simply possesses) any kind of weapon while discussing differences between him- or herself and the other party, it is never justified as self-defense.
Ultimately, no matter your circumstances, the law here says you have a right to claim self-defense when charged with a violent crime. The question of whether your actions constitute assault or self-defense is for the courts to decide.
What Should You Do If Facing A Criminal Charge?
If you have been wrongfully charged with assault or a weapons charge and you believe you acted in self-defense, it is critical to hire an experienced criminal defense attorney that has experience in preparing a self-defense strategy.
If your pending criminal charge is a felony assault or felony gun charge, your criminal attorney can provide contextual evidence that can be used for a grand jury presentation. The grand jury is a panel of citizens that can filter out bad cases and stop a case from proceeding forward to a jury trial.
An aggressive criminal defense law firm can make sure the grand jury sees what really happened and that you were merely acting in self-defense. At the grand jury presentation, they may keep the charge as a felony, lower it to a lesser misdemeanor offense or no bill the case. The obvious goal would be for your criminal lawyer to obtain a no bill from the grand jury. A No Bill is the equivalent of a dismissal of your charges. This will clear your name!
No longer will you have to worry about missed employment opportunities or the stigma associated with having an assault offense on your record. After the passage of the statute of limitations, your criminal defense attorney can file a petition for expunction to have your criminal case destroyed from your criminal record. After a brief hearing in front of a felony judge, your expunction can be approved and sent off to every agency that will have a record of your arrest: publicdata.com, Texas Department of Public Safety, FBI, local police departments, etc.
If you would like a free consultation to discuss your rights and options under Texas law, don’t hesitate to contact the Hampton Criminal Defense Attorneys, PLLC at 817-877-5200.
About the Author:
After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.