Texas Law Shield
August 15, 2014
Texas Law Shield
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Your Legal Segment

The Castle Doctrine and Standing Your Ground in Texas

If you have watched the news on TV or read a newspaper, you may have heard the phrases “Castle Doctrine” and “Stand Your Ground” in reference to self-defense laws. There has been considerable debate about just what these laws are and how far they allow someone to go in protecting themselves, their homes, and their family. Unfortunately, not every news outlet or blog writer is as informed about these legal concepts as they could be. The purpose of this article is to introduce these important legal concepts to you, and explain them clearly enough that you will be better prepared in case you ever need to protect your family, home, or self from danger.

Does Texas Have a Castle Doctrine?

The concept of the Castle Doctrine comes from the philosophy that every person is the King or Queen of their home, and as such, is entitled to certain privileges. In the context of firearms self-defense law, it generally means that a person is not legally required to run away from their home before using force or deadly force against an unlawful intruder. Texas Penal Code �9.31 (governing the justified use of non-deadly force) and �9.32 (governing the justified use of deadly force) are Texas’ version of the Castle Doctrine.

Inside your "castle," under certain circumstances, Texas law presumes you acted reasonably and justifiably if you use force or deadly force to defend yourself against an intruder who enters your occupied habitation, vehicle, or place of business or employment. Specifically, when an individual unlawfully and with force, enters or attempts to enter your occupied habitation, vehicle or place of business or employment, or if an individual unlawfully and with force, removes or attempts to remove you from your occupied habitation, vehicle, or place of business or employment, Texas law will provide the presumption that you acted reasonably and were justified in using force or deadly force. In order for you to be convicted of a crime related to your use of force or deadly force, a prosecutor would have to overcome this presumption in order to prove that you did not act reasonably. Overcoming this presumption can be very difficult in a court of law depending on the circumstances.

With regard to using force or deadly force to defend your "castle," the Texas Penal Code specifically uses the word "habitation," not the words "building" or "property." Texas has a very limited definition of what qualifies as a habitation. The "Castle Doctrine" does not cover your entire piece of property. The legal term "habitation" is defined by Texas Penal Code �30.01 as "a 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." This means that structures which are detached from the building where you sleep at night are not considered to be your habitation. For example, Texas law does not consider your detached garage, shed, and/or barn part of your habitation. However, if your garage, front or back porch is connected to the structure containing your sleeping quarters (as exists in many suburban communities), it is considered part of your habitation as defined by the Texas Penal Code.

As far as vehicles go, Texas Penal Code �30.01 defines a vehicle "as any device, in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation." This is a very broad definition and appears to include anything that carries people or property from one place to another, including cars, trucks, boats, airplanes, golf carts, etc. One important point to take note of is that you or someone else must be occupying the vehicle to be given the presumption of reasonableness under Texas Penal Code �9.31 and �9.32.

What About People Who are Only Trespassers?

Make sure that you do not fall victim to the common misconception that the Castle Doctrine gives you carte blanche to use deadly force merely because someone is on your property. It does not! In fact, Texas law says the exact opposite. Texas Penal Code �9.41 allows you to use force, but not deadly force that is reasonably necessary to prevent or terminate another's trespass on your land.

Your use of force can have many different manifestations, ranging from initiating a physical confrontation to displaying a weapon. Texas Penal Code �9.04 states that the display of a weapon in order to create apprehension in another person is considered a use of force, not deadly force. That means if someone trespasses on your property, you may display your firearm to create apprehension that you will use deadly force if necessary. You will not be legally justified in discharging the firearm, but you will be legally justified in displaying it to "create apprehension" under the law. Only if the trespasser is committing other acts where the law states that you are justified in using deadly force would you be legally allowed to discharge your firearm.

For example, if you are sitting in your living room and see an individual peering in your window, you will probably not be justified under Texas law in using deadly force against the suspicious person. However, if the same trespasser breaks a window and climbs through, you will be legally justified in using deadly force under Texas Penal Code �9.32. If you see the same individual rummaging around in your detached barn, you will not fall under Texas Penal Code �9.32, because it is not considered an occupied habitation. Note under our examples you may very well be justified under another section of the law in the use of deadly force, but not under Texas Penal Code �9.32.

What if a Trespasser Starts Committing Other Property Crimes?

Can you use force or deadly force to protect your property? The use of deadly force to protect property is contained in Texas Penal Code �9.42. This statute provides that if someone is committing trespass or interference with your property, you may be justified in using deadly force to prevent arson, burglary, robbery, aggravated robbery, theft during the nighttime or criminal mischief during the nighttime.

Texas has a 3-prong test that, if met, gives legal justification in using deadly force to protect or recover stolen property. If:
  1. (1) force is necessary to prevent or terminate another's trespass on land or unlawful interference with the property, or

  2. (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. (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:
  1. 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).

  2. 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.

  3. The use of force against another is not justified if you consent to the force. (No dueling or consenting to gun fights).

  4. You provoked the use of force, unless you have clearly abandoned the encounter.

  5. 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. We hope, however, that this newsletter provides you with a better understanding of both of these legal topics, and if you have any questions about Texas firearms laws, do not hesitate to contact us.

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