By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Self defense is a common affirmative defense in family violence/ domestic assault cases.
The defense is governed by Texas Penal Code Section 9.31. That provision says (in relevant part), “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.”
Self defense is an affirmative defense which means it needs to be raised by the accused (and not merely dis-proven by the prosecution as part of their case-in-chief).
Once the defense is properly raised in trial by the defendant, then the judge can instruct the jury that unless the prosecution dis-proves defendant’s self-defense theory beyond all reasonable doubt — the defendant is entitled to acquittal.
Self defense is raised in many assault cases involving family members — usually spouses. The law makes no distinction as between male and female and either party may be entitled to rely on the self-defense defense depending on the facts.
Though case law isn’t 100% — most criminal defendants take the witness stand and admit to the underlying assault in order to rely on the self-defense statute. Courts generally feel it is inconsistent for an accused to claim (1) it never happened; and (2) if it did happen — It was self defense.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice, you should consult an attorney directly.
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