Recently, Ed McClees visited with Houston television station Channel 2 about how self defense laws are applied in Texas. Self defense is a concept that is often misunderstood by both prosecutors and the public. Below is an general overview of how those laws work in Texas. It is important to remember that applying self defense under Texas law is very fact specific, and what courts and juries view as a lawful use of force in one case may not be viewed that way in a similar case.

Self Defense Generally 

The written instructions that a judge ultimately gives to a jury in a case involving self defense will say that a person is justified in using force against another when and to the degree that he reasonably believes the force is immediately necessary to protect himself, or a third person, against the other person's use or attempted use of unlawful force.  The instructions also say that deadly force against another is justified if the accused citizen would be justified in using force against the other in the first place, and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force.  Texas law defines “deadly force” as force that is capable of causing death or serious bodily injury.  Once the issue is raised, the defendant is not required to prove self-defense. Rather, the State must prove, beyond a reasonable doubt, that self-defense does not apply to the defendant's conduct.

Apparent Danger

Under Texas law, it is not necessary that there be an actual attack or attempted attack, as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force was immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force.  In determining the existence of real or apparent danger, the court will direct the jury to consider all relevant facts and circumstances surrounding the offense, together with all relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the offense, and, in considering such circumstances, the court will tell the jury that they should place themselves in the defendant's position at that time and view those facts and circumstances  from his standpoint alone.

“Stand Your Ground” Law

The Texas “stand your ground” law says that 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. Juries are not to consider whether the defendant failed to retreat. 

“Castle Doctrine”

 Under the “castle doctrine,” the defendant's belief that force was immediately necessary is presumed if the complainant “unlawfully and with force entered, or was attempting to enter unlawfully and with force, the [defendant's] occupied habitation.”  Tex. Pen. Code § 9.31, 9.32.  This presumption means that the State must prove beyond a reasonable doubt that that the facts creating the presumption do not exist.  Tex. Pen. Code § 2.05(b).

When Self Defense Does Not Apply

The use of force agasit another person is not allowed under Texas law in the following circumstances:

• in response to verbal provocation alone;
• to resist an arrest or search that the person knows if being made by a peace officer;
• if the person consented to teh exact force used by the other person;
• if the person provoked the other person's use or attempted use of unlawful force (unless that person abanoned or clearly communicated his intent to abandon that encounter);
• if the person sought an explanation or discussion with the other person concerning the actor's differences with the other person while the actor was unlawfully carrying a weapon.