|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, 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, or an "I get to skip the entire legal process" card. In fact, always remember, there is a high possibility that you will go to jail and have to post bond to get out long before the issue of justification is considered by the government. We see cases like this commonly under the firearms program, not to mention seeing cases of this nature unfold in other states everyday. 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. You just dont know.
Does Texas Have a Stand Your Ground Law?
The term "stand your ground" law, again, is not a legal phrase but a phrase the media frequently uses in its reporting. Texas law tells us that there is no duty to retreat if 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 §9.32(c) states 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 deadly force is used,
(2) you did not provoke the person against whom deadly force was used,
(3) and you were not engaged in criminal activity at the time deadly force was used.
The statute is better classified as a "no duty to retreat" law. Under these very limited circumstances, a prosecutor or law enforcement can no longer argue that you had a reasonable "escape route" or that you should have had to "fall back" before justifiably using 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 from the law, first, you must have been justified under the Texas Penal Code in using force or deadly force.
As we discussed above, Texas Penal Code §9.32 states that you will be presumed to be legally justified in using deadly force if someone is entering, attempting to enter, removing you or attempting to remove you from your occupied habitation, vehicle, or workplace. Texas Penal Code §9.32 also states that you will be presumed to be justified in using deadly force if someone commits or attempts to commit: aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. 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 anywhere you have a right to be, only then does the use of deadly force with no duty to retreat apply under the statute. To paraphrase a very effective jury argument, the statute is 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 §9.32(c)'s "no duty to retreat" protection, you must be justified in using force under Texas Penal Code §9.31. Second, the no retreat statute itself has three more qualifications that must be met before you gain the statute's 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 in the legal system:
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 arrest or search being made by a police officer. 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. 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. a non-CHL holder carrying in places other than their premises, vehicle or watercraft;
b. having a handgun in plain view;
c. engaging in criminal activity while carrying a weapon; or,
d. carrying a weapon by a person who is a member of a criminal street gang.