By Texas Criminal Defense Lawyer Jeremy Rosenthal
Texas law allows you to use “deadly force” in certain circumstances to defend yourself. One of those circumstances is when an intruder has forcefully and unlawfully entered your home.
Will you be arrested? Perhaps, but the law may let you out of it if you qualify.
What is Deadly Force?
“Deadly force” means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. Tex.Pen.C. 9.01(3).
When Can I Use Deadly Force to Protect My Home?
Tex.Pen.C. 9.32 discusses the defense of use of deadly force and in relevant part says this:
(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
….(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) 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;
(B) 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
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
The Statute Translated and Broken Down
In English – if you are in your habitation, vehicle, or place of business AND someone has not only unlawfully entered but did so by using force AND you have done nothing to provoke the person AND you yourself are not committing a crime – then if you shoot the person, you have self defense available to you. Additionally, you do not have the duty to retreat.
What Does it Mean My Actions are “Presumed to be Reasonable”
Remember – the law could very well go to a jury in any legal case. The jury decides whether what a person did to defend their home was reasonable. This law assists them and ‘nudges’ them to tell them it was reasonable. It also encourages police and prosecutors not to arrest or go forward where cases where this applies.
Why Does the Intruder Have to Use Force to Break In for Me to Be Able to Shoot Him?
This prohibits situations where someone is invited over, an argument ensues, and then the person doesn’t leave despite being told to do so. In that instance, the person’s entry into the home would be unlawful yet not forceful.
What Does it Mean I Can’t Be Committing a Crime?
This is a confusing part of the statute. Remember, this law is designed to protect the homeowner who wakes up at 3 in the morning to find a burglar in their home or who comes home for lunch to find their door kicked in and someone rummaging through their possessions.
The law isn’t designed to protect someone running a drug house or prostitution ring. Also, the law had to have a touch of flex too because it covers car-jacking situations – and not bar fights which turn into fights in a car.
But if you Recklessly Shoot a Third Person…
If you use deadly force and in doing so harm or kill a different – innocent – person, then the self defense protections are unavailable to you.
*Jeremy Rosenthal is Board Certified in Criminal Law. He has been designated as a Texas Super Lawyer by Thomson Reuters.