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Self-Defense in Texas Criminal Cases

Houston Attorney for Self-Defense

The “castle doctrine” in Texas is based on the belief that a person’s home is his or her castle. Under the castle doctrine, Texas law provides for a defense making a person immune from prosecution when deadly force was used to protect the person’s abode from an intruder.

The castle doctrine in Texas was enacted largely as an exception to the “duty to retreat” that had once been required in self-defense cases before resorting to deadly force.

Many other states across the country have enacted similar “Stand Your Ground” laws that justify the use of deadly force when a person fears for his life. If you have been arrested for any type of violent crime in Texas when you were only defending yourself or another, you should immediately seek the help of Horak Law.

Houston Lawyer for Self-Defense Claims

Matt Horak is an experienced criminal defense lawyer in Houston, TX, who aggressively defends clients all over Harris County and surrounding areas. As a former prosecutor, Matt Horak understands what is required to successfully invoke self-defense claims as an absolute defense or as a mitigating factor in criminal cases.

Horak Law serves several communities in the greater Houston area, including Conroe, Missouri City, Pearland, Richmond-Rosenberg, Spring, The Woodlands, Pasadena, Sugar Land, Galveston, and League City. You can receive an honest and thorough evaluation of your case during a free, confidential consultation when you call our firm at (713) 225-8000 or toll-free at (800) 225-8009.


Harris County Self-Defense Information Center


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United States Supreme Court Cases Dealing with Self-Defense Issues

In earlier years, a person had a duty to retreat before he or she could justify deadly force. This typically required that a person had to not only retreat, but be threatened with death or serious bodily injury before using deadly force.

The first United States Supreme Court ruling to address self-defense was Beard v. United States, 158 U.S. 550 (1895). Babe Beard was involved in a dispute with three brothers—Will, John, and Edward Jones—over the ownership of a cow. The oldest brother, Will, publicly threatened to take the cow or kill Beard, and made repeated visits to the farm to take the animal.

During one confrontation, Will moved toward Beard with an apparent motion to remove a handgun from his pocket, leading to Beard striking him in the head with the butt of his shotgun. Will later died from these injuries.

When Beard was ultimately charged with murder, a trial court judge told the jury that the alleged offender could not claim self-defense if he had the ability to safely retreat from the situation.

However, the United States Supreme Court upheld Beard’s appeal, with Justice John M. Harlan writing that the majority could not agree “that the accused was under any greater obligation, when on his own premises, near his dwelling-house, to retreat or run away from his assailant, than he would have been if attacked within his dwelling house.”

In reversing the judgment of the trial court, Harlan concluded:

In our opinion, the court below erred in holding that the accused, while on his premises, outside of his dwelling house, was under a legal duty to get out of the way, if he could, of [158 U.S. 550, 564]   his assailant, who, according to one view of the evidence, had threatened to kill the defendant, in execution of that purpose had armed himself with a deadly weapon, with that weapon concealed upon his person went to the defendant's premises, despite the warning of the latter to keep away, and by word and act indicated his purpose to attack the accused.

The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

A little over a year after the Court issued its decision in Beard, the issue of duty to retreat arose again when a trial judge instructed the jury that Alexander Allen could only justify his use of deadly force in the killing of Phillip Henson if he used “all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can, or disabling him without killing him, if it is in his power.”

The Court noted in Allen v. United States, 164 U.S. 492 (1896), that the “general duty to retreat, instead of killing, when attacked” that was abolished in Beard applied in cases involving alleged offenders on their own property, but did not apply in cases of the property of others.

Roughly a quarter-century later, the Court delivered perhaps its most famous opinion concerning self-defense in deciding Brown v. United States, 256 U.S. 335 (1921). In this case, Robert Brown was convicted of second-degree murder after shooting and killing a co-worker who had assaulted him with a knife on two previous occasions. The Texas trial judge instructed the jury that, when considering self-defense, the alleged offender being assaulted has a duty to retreat as long as retreat is possible and does not present a danger.

The Supreme Court, however, reversed the conviction. Justice Oliver Wendell Holmes wrote:

Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant, rather than to kill him.


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When You Can Use Deadly Force in Texas in Self-Defense

In 1973, the Texas Legislature established a duty to retreat in the Texas Penal Code such that the use of deadly force was justifiable only in a situation in which a reasonable person would not have retreated. The Legislature later passed the castle doctrine in 1995 that stated the duty to retreat did not apply to alleged offenders who use force “against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation” of the alleged offender.

In 2007, the Legislature further expanded protections of self-defense claims to apply to situations that were not habitations. The 2007 amendments not only provided further defense against criminal charges for people who use deadly force but also granted civil immunity to those whose use of force was justified.


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Texas Penal Code Self Defense

Under Texas Penal Code § 9.31, a person is justified in using force against another person when and to the degree, he or she reasonably believes the force is immediately necessary to protect him or herself against the other's use or attempted use of unlawful force. This belief that force was immediately necessary is presumed to be reasonable if the person:

  • knew or had reason to believe that the person against whom the force was used:
    • unlawfully and with force entered, or was attempting to enter unlawfully and with force, the alleged offender's occupied habitation, vehicle, or place of business or employment;
    • unlawfully and with force removed, or was attempting to remove unlawfully and with force, the alleged offender from the alleged offender's habitation, vehicle, or place of business or employment; or
    • was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
  • did not provoke the person against whom the force was used; and
  • was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

State law further states that the use of force to resist an arrest or search is justified:

  • if, before the alleged offender offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search;  and
  • when and to the degree the alleged offender reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

However, the use of force against another person will not be justified:

  • in response to verbal provocation alone;
  • to resist an arrest or search that the alleged offender knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful unless the resistance is a justified use of force to resist an arrest or search;
  • if the alleged offender consented to the exact force used or attempted by the other;
  • if the alleged offender provoked the other's use or attempted use of unlawful force, unless:
    • the alleged offender abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter;  and
    • the other nevertheless continues or attempts to use unlawful force against the alleged offender;  or
  • if the alleged offender sought an explanation from or discussion with the other person concerning the alleged offender's differences with the other person while the alleged offender was:
    • unlawfully carrying a weapon in violation of Texas Penal Code § 46.02; or
    • possessing or transporting a weapon prohibited under Texas Penal Code § 46.05.

This section of the Penal Code further states that a person is not required to retreat before using force if he or she has a right to be present at the location where the force is used, has not provoked the person against whom the force is used, and is not engaged in criminal activity at the time the force is used. In determining whether alleged offenders in these types of cases reasonably believed that their uses of force were necessary, juries cannot consider whether they failed to retreat.

Texas Penal Code § 9.32 further states that a person is justified in using deadly force against another if the alleged offender would be justified in using force against the other person under Texas Penal Code § 9.31.

Also, deadly force is justified when the alleged offender reasonably believes the deadly force is immediately necessary to protect him or herself against the other person's use or attempted use of unlawful deadly force or to prevent the other person's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Any belief that deadly force was immediately necessary will be presumed to be reasonable if the alleged offender:

  • knew or had reason to believe that the person against whom the deadly force was used:
    • unlawfully and with force entered, or was attempting to enter unlawfully and with force, the alleged offender's occupied habitation, vehicle, or place of business or employment;
    • unlawfully and with force removed, or was attempting to remove unlawfully and with force, the alleged offender from the alleged offender's habitation, vehicle, or place of business or employment; or
    • was committing or attempting to commit an offense described by Subsection (a)(2)(B);
  • did not provoke the person against whom the force was used; and
  • was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

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Harris County Self-Defense Resources

International Defensive Pistol Association (IDPA) — This organization is the governing body of a shooting sport that uses practical equipment including full charge service ammunition to simulate self-defense scenarios and real life encounters. IDPA has clubs all over the United States, including 30 in Texas. You can learn more about these clubs as well as upcoming events, organization members, and IDPA matches on this website.

Texas Concealed Handgun Association (TCHA) — On the website of this nonprofit organization, you can learn more about the objectives and purposes of the TCHA as well as meeting summaries, newsletters, and special articles. There are also legislative updates, Texas concealed handgun license (CHL) statistics and a feed of alerts and news items.

Students for Concealed Carry (SCC) — This is the Texas page for the national organization that advocates for the rights of concealed handgun licenses to carry firearms on college campuses. The national website contains press releases, responses to common arguments against campus carry, and answers to frequently asked questions. Texas chapters include North Lake College, Tarrant County College, Texas A&M University, Texas Tech University, University of Houston, University of Texas at Arlington, University of Texas at Austin, and University of Texas at Dallas.

Self-Defense Corner - Gun Owners of America (GOA) — You can find articles relating to self-defense stories on this section of the nonprofit organization’s website. GOA fights court battles nationwide and lobbies lawmakers to preserve and defend the Second Amendment rights of gun owners. The website contains recent alerts as well as several resources such as fact sheets, source studies, and as well as section entitled “Just For Skeptics.”


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Find a Houston Attorney for Self-Defense

Were you arrested for allegedly killing or injuring another person when you were actually just legally defending yourself? Former Harris County Assistant District Attorney Matt Horak is a criminal defense attorney in Houston, Texas who will aggressively fight to have your criminal charges reduced or completely dismissed.

Horak Law regularly handles all kinds of firearms crimes and weapons charges for Texans all over Harris County and surrounding communities in Liberty County, Brazoria County, Galveston County, Montgomery County, Waller County, and Fort Bend County.

Call our firm right now at (713) 225-8000 or toll-free at (800) 225-8009 today to take advantage of a free initial consultation that will allow Matt Horak to review your case and help you understand all of your legal options.


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Matt Horak Matt Horak is Board Certified in Criminal Law by the Texas Board of Legal Specialization since 2014