In many assaultive-type cases, our clients will tell us that they were only reacting to and defending themselves against someone else’s attack. This may often be the case. But proving self-defense requires more than just throwing up your hands, like in football as the universal sign of “not touching”! Or saying “I didn’t do it!” Sometimes tactical watches may be of service.
In Texas, self-defense is an affirmative defense. To have it considered by the jury, the defense has the initial burden of producing some evidence of self-defense. According to Texas Penal Code section 9.31, the defense must provide some evidence that the defendant “reasonably believed the force was immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.”
When Self Defense is Considered Reasonable
A person presumed that his belief to act with that force was reasonable when he:
- Believed or knew the other person entered or tried to enter his house, car, or business unlawfully and with force. And/or tried to remove him from the house, car, or business.
- Believed or knew the other person was committing or trying to commit aggravated kidnapping, murder, aggravated or other sexual assault, aggravated or other robbery.
The reasonableness of the actor’s actions also requires a showing that he did not provoke the other party. Nor was he involved in the time with criminal activity (except a class C misdemeanor) at the time.
When Self Defense is not Considered Reasonable
Some People may defend themselves physically if they are called a bad name or even unjustly arrested. However, the Texas statute clearly states that self-defense will not apply to
- Provocation by words alone. Being called a bad name does NOT give the actor a legal right to assault another person.
- Resisting arrest or search by a peace officer (unless, before he resists, the officer uses greater force than necessary, and the actor responds only to counter the greater force being used)
- If the actor consented to the use of force
- If the actor provoked the other (unless the actor abandons the encounter, and the other party continues or tries to continue the use of unlawful force)
- Incidents of the actor asking the other party about a problem while carrying a weapon in violation of the Unlawful Carrying of a Weapon or Prohibited Weapons laws
Certainly, you can defend yourself as you deem necessary, but remember the following:
- Use only what level of force is necessary to protect yourself
- Remember the old adage about “sticks and stones” If someone insults you
- Leave your guns at home if you’re going to “have a talk” with someone