The Castle Doctrine - Standing your ground in Texas
(1) force is necessary to prevent or terminate another's trespass on land or unlawful interference with the property, or
(2) deadly force is reasonably necessary to prevent another who is committing arson, burglary, robbery, aggravated robbery, theft or criminal mischief at night, or immediately fleeing with property after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property, and
(3) the person reasonably believes that the property cannot be protected or recovered by any other method, or that the use of non-deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury, then you will be legally justified in using deadly force to protect and/or recover your stolen property.While you may be legally allowed to use force under these conditions, we want to stress that using deadly force is most likely a very bad idea!
The crime of criminal trespass is not one of those listed in Texas Penal Code §9.42 or even under the "Castle Doctrine" statutes §9.31 and §9.32. A mere criminal trespass may, however, evolve into one of the above crimes where you may be justified in using deadly force to protect your property. For example, suppose that someone decides to sit on your lawn, and you yell at them to get them off your property. If the trespasser refuses to leave, you are almost certainly not justified in using deadly force to remove him. But if that same person sitting on your lawn gets up and charges towards your bedroom window with a firearm and a crow bar, you will very likely be legally justified in using deadly force to protect yourself and your home. His actions of charging you with a weapon make him more than just a trespasser under Texas law.
Criminal Prosecution Even If You Were Justified.
Just because Texas law affords you a legal justification for using deadly force when someone attacks you, or enters or removes you from your occupied habitation, vehicle, or workplace, this does not mean you are immune from being arrested or criminally prosecuted, even if you are completely in-the-right as far as the law is concerned. Your right to assert legal justifications is just that: a legal justification. It is not a “Get Out of Jail Free” card. In fact, always remember that there is a high possibility that you will have to go to jail and post bond long before the issue of justification is considered by the prosecutor. We see cases like this unfolding in Texas and other states on a regular basis. You may ultimately have to go to court and assert your justification defense before a judge or jury. This process may take months or even years to get resolved!
Does Texas Have a Stand Your Ground Law?
The phrase "Stand Your Ground,” despite its common use in the media, is not found in Texas statutory law. Under certain circumstances, Texas law tells us that there is no duty to retreat if you are faced with a situation where you have to use force or deadly force to protect yourself or another. Even if by retreating you could avoid the entire confrontation, you do not legally have to. Texas Penal Code §9.31(e) and §9.32(c) state that in defending yourself or another person, you have no duty to retreat if: (1) you have a legal right to be at the location where force or deadly force is used, (2) you do not provoke the person against whom force or deadly force was used, (3) and you are not engaged in criminal activity at the time force or deadly force was used. These statutes are better considered "No Duty to Retreat" laws. Under these very limited circumstances, a prosecutor or law enforcement officer cannot argue that you had a reasonable "escape route," or that you should have had to "fall back" before justifiably using force or deadly force. If you are facing a criminal charge, qualifying under this statute could mean the difference between a conviction or not!
In order to receive the "No Duty to Retreat" protection under the statutes, first, you must be justified under the Texas Penal Code in using force or deadly force. As we discussed above, Texas Penal Code §9.31 and §9.32 state that you will be presumed to be legally justified in using force or deadly force if someone is entering, attempting to enter, removing you or attempting to remove you from your occupied habitation, vehicle, or workplace. You will also be presumed to be justified in using force or deadly force if someone commits or attempts to commit: aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Force or deadly force can be used to stop any of these crimes, as well as when it may be immediately necessary to protect yourself or another person from the attacker's use of deadly force. If you are at a place you have a legal right to be, only then does the use of force or deadly force with no duty to retreat apply under the statute. To paraphrase a very effective jury argument, the statutes are designed to protect you when "trouble finds you, but not when you go looking for trouble."
Disqualifications for No Retreat Protection
There are multiple situations where your conduct may potentially disqualify you from the Texas "No Duty to Retreat" provision. In order to receive Texas Penal Code §9.31(e) and §9.32(c) "No Duty to Retreat" protection, you must first be justified in using force under Texas Penal Code §9.31. Second, the No Retreat statute themselves have three more qualifications that must be met before you gain the statutes’ protection.
Disqualifying Under Texas Penal Code §9.31
If you want to protect yourself or another person, there are multiple situations under Texas Penal Code §9.31 where you will not be justified in using force or deadly force. If you fall under one of the following situations, you will not be given the "No Duty to Retreat" protection:
The use of force is not justified in response to verbal provocation alone. (If someone is only yelling at you, you are not justified in using force against them).
You will not be justified in using force to resist an arrest or search being made by a police officer (unless the officer uses greater than reasonable force), even if the arrest or search is ultimately proven to be unlawful.
The use of force against another is not justified if you consent to the force. (No dueling or consenting to gun fights).
You provoked the use of force, unless you have clearly abandoned the encounter.
If you seek a discussion with another person regarding your differences while unlawfully carrying a weapon, you will not be given the “No Duty to Retreat” protection. Unlawful carry of a weapon includes:
a non-CHL holder carrying in places other than their premises, place of business, vehicle or watercraft;
having a handgun in plain view;
engaging in criminal activity while carrying a weapon,
carrying a weapon by a person who is a member of a criminal street gang; or,
Carrying a prohibited weapon.
Qualifying Under the No Duty to Retreat Statute
As we discussed earlier, the first thing that must be satisfied to receive the “No Duty to Retreat” Protection is that the person must have had a legal right to be in the location where deadly force was used. What does the law mean when it says that you must “be in a location where you have a legal right to be?” The best way to clarify this is to discuss places where you do not have a legal right to be. Any location where you would be considered a trespasser is, by definition, a place where you do not have a legal right to be. Under Texas Penal Code §30.05, a person becomes a criminal trespasser if they enter or remain on property without effective consent, or the person had notice that entry was forbidden or received notice to depart but failed to do so. Notice of trespassing includes: oral or written communication, fencing, signs posted on the property indicating that entry is forbidden, purple paint marks on trees or posts on the property, or crops for human consumption growing on the property. As long as you are in a place where you are not considered a trespasser by the law, you most likely have a legal right to be there under the “No Duty to Retreat” statutes.
In addition to the location test, you cannot have provoked the other's use or attempted use of force. You cannot start a fight and then claim justification for your use of force or deadly force. There is, however, an exception to this rule. If you abandon the encounter or clearly communicate your intent to abandon, and you cannot do so safely, and the other continues to use unlawful force against you, you do not have a duty to retreat.
A very similar scenario played out in a district court in Harris County. An individual was convicted of murdering his neighbor during a conflict that started as a result of a noise complaint. The accused individual videotaped the entire confrontation. The last few minutes of the video seem to show that the man was justified in discharging his firearm after three men charged him. However, prior to the last few minutes, approximately twenty minutes of the video showed the accused leaving his property with his handgun, trespassing on his neighbor's property, and taunting the neighbors by flashing his pistol. As a result of these actions the man did not qualify under the "No Duty to Retreat" statutes. In fact, the prosecutor in the case told the jury that "self-defense was never meant to protect the one that started the fight." The jury only deliberated for 90 minutes before returning a verdict of guilty on a murder charge and ultimately sentenced him to 40 years in prison.
Finally, you cannot be engaged in any criminal activity, other than a Class C misdemeanor traffic offense at the time deadly force was used and claim self-defense.
As you can see, the Texas versions of the Castle Doctrine and Stand Your Ground laws are extremely complex and cannot be summarized with a simple catch phrase. These topics consume thousands of pages of legal treatises, so this article is only a brief overview of the intricacies that are involved with these topics.