San Antonio VIOLENT CRIMES AttorneY

Raising Self-Defense in a Prosecution for a Violent Crime

One of the most common defenses raised during the prosecution of a violent crime is self-defense. As a general rule, a person is justified in using force against another when and to the degree, the defendant reasonably believes the force is immediately necessary to protect the defendant against the other’s use or attempted use of unlawful force.

Section 9.02 of the Texas Penal Code refers to self-defense as a ”justification” that is a ”defense to prosecution.” In some circumstances, the defendant’s belief that the force was immediately necessary is presumed to be reasonable. Those circumstances include the following:

• The defendant knew or had reason to believe that the person against whom the force was used:
  • 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;
  • 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
  • Was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
• Did not provoke the person against whom the force was used; and
• 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.

When the Use of Force Is Not Justified in Texas

Texas law provides that the use of force against another is not justified under the following circumstances:

• In response to verbal provocation alone;
• To resist an arrest or search that the defendant 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);
• If the defendant consented to the exact force used or attempted by the other;
• If the defendant provoked the other’s use or attempted use of unlawful force, unless:
  • The defendant abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
  • The other nevertheless continues or attempts to use unlawful force against the defendant; or

The use of force against another is also not justified if the defendant sought an explanation from or discussion with the other person concerning the defendant’s differences with the other person while the defendant was:

• Carrying a weapon in violation of Section 46.02; or
• Possessing or transporting a weapon in violation of Section 46.05.

Circumstances That Justify the Use of Force in Texas

The use of force to resist an arrest or search is justified under the following circumstances:

• If, before the defendant offers any resistance, the law enforcement officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
• When and to the degree the defendant reasonably believes the force is immediately necessary to protect himself against the law enforcement officer’s (or other person’s) use or attempted use of greater force than necessary;
• The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34;
• 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.
• For purposes of Subsection (a), in determining whether a defendant described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the defendant failed to retreat.

Asserting a self-defense claim is difficult. If you believe your case involves a self-defense claim, then contact an experienced criminal defense attorney who can explain this important defense that can be raised in cases involving the use of force.