By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Anyone who has Facebook probably has one or two friends who have anointed themselves lead counsel for prosecution or defense of George Zimmerman. The proliferation of second, third and fourth-hand knowledge with accompanying conclusions has been rampant. Hot-button criminal issues like the Trayvon Martin case emphasize a particularly important concern for a criminal defense attorney, which is the level of comfort people have in debating a criminal problem without a whole lot of reference to what the law says.

I am far from an authority on Florida criminal laws or how they should apply in the Trayvon Martin situation and nowhere in this article will you find my Trayvon Martin opinion. However, as a criminal defense attorney, I can’t help but wonder whether our criminal statutes would afford any more or less protection to hypothetical person in a similar situation in Texas. After reviewing the relevant laws in Texas, they appear to be fairly similar to the Florida “stand your ground” law.

Chapter 9 of the Texas Penal Code provides a laundry list “justification” defenses including justifiable use of force and deadly force. A justification is simply an argument presented to the jury that, despite the conduct in question amounting to a criminal offense, the conduct was permissible based on the circumstances. In Texas, the circumstances which allow a person to use deadly force are the following.

Self-Defense
In Texas, an actor may use deadly force in self-defense when the actor reasonably believes it is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force, or to prevent the other’s imminent commission of any of the following offenses: (1) aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

In Texas, a person loses the right to use self-defense and deadly self-defense in any of the following situations: (1) in response to a verbal provocation alone, (2) to resist arrest, (3) if the actor consented to the exact force used or attempted by the other, (4) if the actor provoked the other’s use or attempted use of unlawful force (unless the actor abandons the encounter or clearly communicates his intent to abandon the encounter and the other continues to use unlawful force), or (5) if, while carrying a weapon, the actor seeks an explanation or discussion regarding the actor’s differences with the other person.

Texas does not have a duty to retreat, even when an actor is using deadly force in self-defense. So long as: (1) the actor claiming self-defense has a right to be present at the location where the deadly force is used, (2) has not provoked the person against whom the deadly force is used, and (3) the actor claiming self-defense is not, himself, engaged in criminal activity at the time of deadly force.

Defense of Property
In Texas, an actor may also use deadly force to protect land or tangible, movable property. To claim the privilege of use of deadly force in protecting property, the actor must be in lawful possession of the property and the following conditions must be met:

• Deadly force is immediately necessary to either: (1) prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime or criminal mischief during the nighttime, or (2) prevent the other person from fleeing with property immediately after committing a burglary, robbery, aggravated robber, or theft during the nighttime.
• The actor reasonably believes that either: (1) land or property cannot be protected or recovered by any other means, or (2) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.