SELF DEFENSE AND USE OF FORCE
Texas Penal Code Section 9.31 details the general law governing self-defense and one’s use of force, other than deadly force, against another person. “Except as provided in Subsection (b), 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.” Tex. Penal Code Ann. § 9.31(a)(1)(A).
A defendant is justified in using deadly force to defend himself if he is justified in using force against another as described in § 9.31, and he reasonably believes it is immediately necessary to protect himself from the other person’s use or attempted use of unlawful deadly force or to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery Tex. Penal Code Ann. § 9.32.
When evaluating an actor’s use of force, the ultimate question is whether the actor’s belief that he had to use force was “reasonable.” The first question in a self-defense analysis is whether the person against whom force was used was unlawfully using or attempting to use force against the actor. The second question to ask is whether the actor used only the degree of force necessary to protect himself. The third question to ask is if the actor’s use of force was immediately necessary under the circumstances. If all three of these questions are answered affirmatively, the actor’s use of force would be deemed justifiable and he should not, or would not, be held criminally responsible unless he provoked the difficulty or was otherwise engaged in criminal activity other than a Class C misdemeanor traffic violation.
REASONABLENESS OF BELIEF
Section 1.07(42) of the Texas Penal Code defines “reasonable belief” as “a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” A reasonable belief may be based on an apparent danger; meaning the defendant need not be attacked. A person has the right to defend from apparent danger to the same extent as he would have had the danger been real, provided he acted upon reasonable apprehension of danger as it appeared to him at the time. A defendant is entitled to a self-defense instruction where he reasonably believes he was in danger, even though that perception may be incorrect. However, a defendant does not have a self-defense theory available where he enters a situation knowing the third party intends to provoke an incident—the defendant steps into the shoes of the third party.
Clearly, not every altercation, whether actual or apparent, gives rise to a justified use of deadly force. For example, a blow to the face with an open or closed hand does not give rise to the use of deadly force. Likewise, hair pulling does not justify a deadly response. The use of deadly force is justified if the danger to the defendant is actual or seemingly apparent. However, if deadly force is used before the defendant actually believes he is in danger of either death or serious bodily injury, self-defense is not raised.
Last, the defendant’s knowledge of the complainant’s or victim’s violent propensities is relevant to the issue of reasonableness. However, the mere fact the defendant “believed” he might in some manner be attacked, without evidence of any overt act or words that would lead the defendant to reasonably believe he was in danger, is insufficient to give rise to a self-defense charge.
UNJUSTIFIED USE OF FORCE
Circumstances under which the use of force is NOT legally justified are listed in Texas Penal Code Section 9.31(b). The code states that an actor will not be justified in the use of force:
1. In response to verbal provocation alone;
2. To resist an arrest or search known by the defendant to be made by a peace officer, or someone acting in a peace officer’s presence and at his direction, even if the arrest and/or search is unlawful, except as provided below;
3. If the defendant consented to the exact force used or attempted by the other;
4. If the defendant provoked the other person’s use or attempted use of unlawful force unless: (a) the defendant abandons the encounter or, believing he cannot safely abandon it, clearly communicates his intention to do so; and (b) the other person continues to actually use or attempt to use unlawful force against the defendant; or,
5. The defendant sought an explanation from or discussion with the other person concerning the defendant’s differences with the other person while the defendant was: (a) carrying a weapon in violation of Section 46.02; or (b) possessing or transporting a weapon in violation of Section 46.05.
PRESUMPTIONS OF REASONABLENESS IN THE USE OF DEADLY FORCE
Section 9.32(b) provides: 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,
3. 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.
SOME OTHER LIMITATIONS ON THE JUSTIFICATION OF SELF-DEFENSE
Verbal provocation will not justify the use of force. So, words alone will not justify the use of force in self-defense.
There is no right of self-defense where the force used by another is lawful. However, the issue for the judge or jury is whether the defendant reasonably believed the force used against him to be unlawful. Where the defendant displayed a weapon first, he was not entitled to an instruction on self-defense, even though he was shot first. Because the victim acted in self-defense, the defendant was not protecting himself against unlawful force. Lavern v. State, 48 S.W.3d 356 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
There is no right of self-defense with respect to an arrest or search, even if unlawful, unless excessive force is used before the defendant offers any resistance and the defendant reasonably believes self-defense is immediately necessary. Letson v. State, 805 S.W.2d 801 (Tex. App.—Houston [14th Dist.] 1990, no pet.); Lockhart v. State, 847 S.W.2d 568 (Tex. Crim. App. 1992). The limitation requires the defendant to know the person attempting to make the arrest or effectuate the search is a peace officer or an agent acting in the peace officer’s presence and with his direction. Kolliner v. State, 516 S.W.2d 671 (Tex. Crim. App. 1974). Though self-defense is not available in this situation, the defendant/citizen retains all rights and remedies for an unlawful arrest and, presumably, a search. Barnett v. State, 615 S.W.2d 220 (Tex. Crim. App. 1981).
Self-defense is not raised where the defendant consented to the force used against him, for example, mutual combat.
Under Article 38.36 of the Texas Code of Criminal Procedure, in a prosecution for murder where the defendant raises justification as a defense under Sections 9.31, 9.32, or 9.33, in order for him to establish his reasonable belief that the use of force or deadly force was immediately necessary, he shall be permitted to offer (1) relevant evidence that the defendant had been the victim of acts of family violence committed by the deceased, as family violence is defined by Section 71.01 of the Texas Family Code; and (2) relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to family violence that are the basis of the expert’s opinion.
The exceptions listed in Section 9.31(b)(5) of the Texas Penal Code normally act as a limitation on the justification of self-defense, not as an absolute bar. However, some courts have held that where the defendant admits he sought a discussion with the victim about their differences while illegally carrying a handgun, the defendant was not justified in using force as a matter of law and was not entitled to an instruction on self-defense. Williams v. State, 35 S.W.3d 783 (Tex. App. —Beaumont 2001, pet. ref’d).
A defendant must “substantially admit” to the conduct which forms the basis of the indictment before he can rely on self-defense or necessity. East v. State, 76 S.W.3d 736 (Tex. App.–Waco 2002, no pet.) (the defendant was not entitled to instructions on self-defense or necessity because he did not admit to the conduct underlying the offense of which he was accused.).
Section 9.05 of the Texas Penal Code makes self-defense unavailable to a defendant who recklessly injures or kills an innocent third person.
DEFENSE OF A THIRD PERSON (defending someone else)
Section 9.33 of the Texas Penal Code provides that a person is justified in using force or deadly force against another to protect a third person if, under the circumstances as reasonably believed by the defendant, he would be justified in using force or deadly force as provided in Sections 9.31 or 9.32 of the Texas Penal Code to protect himself from the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person. The use of such force, however, is justified only if the defendant reasonably believes his intervention is immediately necessary to protect the third person. In other words, Section 9.33 places the defendant in the shoes of the third person.