Texas Castle Doctrine and Stand Your Ground 101

My good friends over at Texas Law Shield wrote this plain english explanation of these topics. I present it with their permission, and I give them full credit;

Dear Clients, Members, and Friends:

Catchy terms like”Stand Your Ground” and the “Castle Doctrine” have becomecommon topics of dinner table discussions in recent months. With the mediafrenzy over the Trayvon Martin case, a nationwide debate over “Stand YourGround” laws has surfaced. The media acts very authoritative when theyglibly throw around the terms “Stand Your Ground” and “CastleDoctrine.” However, these are not legal terms or standards when it comesto Texas law. You will not find the words “stand your ground” or”castle” anywhere in the Texas Penal Code. So what do these termsmean? In this newsletter, we are going to explain Texas’ laws that are looselycalled the Castle Doctrine and Stand Your Ground.

What is the Texas CastleDoctrine?
The “CastleDoctrine” is a concept that comes from the philosophy that every person isthe King or Queen of their home. Thus, there is never a need for the monarch ofthe kingdom to flee the castle before using force against an unlawful intruder.Texas Penal Code §9.31 (governing the justified use of non-deadly force) and§9.32 (governing the justified use of deadly force) are our state’s version ofthe Castle Doctrine. Just proving that everything is bigger in Texas, our lawextends the “Castle Doctrine” beyond your residence to include youroccupied vehicle and workplace. 
Inside your”castle,” under certain circumstances, Texas law presumes you actedreasonably and justifiably if you use force or deadly force to defend yourselfagainst an intruder who enters your occupied habitation, vehicle, or place ofbusiness or employment. What are the circumstances that will give you thisimportant legal presumption? The first is where an individual unlawfully andwith force, enters or attempts to enter your occupied habitation, vehicle orplace of business or employment. The second situation is if an individualunlawfully and with force, removes or attempts to remove you from your occupiedhabitation, vehicle, or place of business or employment. If you are ever confrontedwith either of these situations, Texas law will presume that you actedreasonably and were justified in using force or deadly force. Therefore, inorder for you to be convicted of any crime, a prosecutor would have to overcomethis presumption in order to prove that you did not act reasonably. Overcomingthis presumption is nearly an impossible task in a court of law.

With regard to usingforce or deadly force to defend your “castle,” the Texas Penal Codespecifically uses the word “habitation,” not the words”building” or “property.” Texas has a very limiteddefinition of what qualifies as a person’s habitation. The “CastleDoctrine” does not cover your entire piece of property. The legal term”habitation” is defined by Texas Penal Code §30.01 as “a structureor vehicle adapted for the overnight accommodation of persons; and includeseach separately secured or occupied portion of the structure or vehicle; andeach structure appurtenant to or connected with the structure or vehicle.”This means structures that are detached from where you sleep at night are notconsidered to be your habitation. For example, Texas law does not consider yourdetached garage, shed, and/or barn part of your habitation. However, if yourgarage, front or back porch is connected to the structure containing yoursleeping quarters (as exists in many suburban communities), it is consideredpart of your habitation as defined by the Texas Penal Code. Yes, this slightdistinction in architectural design can affect your legal rights.
Turning to the subjectof vehicles, Texas Penal Code §30.01 defines a vehicle “as any device, in,on, or by which any person or property is or may be propelled, moved, or drawnin the normal course of commerce or transportation.” This is a very broaddefinition and appears to include anything that carries people or property fromone place to another, including cars, trucks, boats, airplanes, golf carts,etc. The important point to remember is that you or someone else must beoccupying the vehicle to be given the presumption of reasonableness under TexasPenal Code §9.31 and §9.32. 

What About People Whoare Only Trespassers?
Make sure that you donot fall victim to the common misconception that the Castle Doctrine gives youcarte blanche to use deadly force merely because someone is on your property.It does not. Many people think that the law allows you to use deadly forceagainst a mere trespasser. In fact, Texas law says the exact opposite. TexasPenal Code §9.41 allows you to use force, not deadly force, that isreasonably necessary to prevent or terminate another’s trespass on your land.

You still have a legalright to exclude or remove trespassers from your land; however you are limitedto only using non-deadly force to do so. The use of force can have manydifferent manifestations, from physical confrontation to displaying a weapon.Texas Penal Code §9.04 states that for defensive purposes the display of aweapon in order to create apprehension in another person is considered a use offorce, not deadly force. That means if someone trespasses on your property, youmay display your firearm to create apprehension that you will use deadly forceif necessary. You will not be legally justified in discharging the firearm, butyou will be legally justified in displaying it to “createapprehension” under the law. Only if the trespasser is committing otheracts where the law states that you are justified in using deadly force wouldyou be allowed to discharge your firearm legally.
For example, if you aresitting in your living room and see an individual peering in your window, youwill probably not be justified under Texas law in using deadly force againstthe suspicious person. However, if the same fellow breaks a window and climbsthrough, you will be legally justified in using deadly force under Texas PenalCode §9.32. If you see the same individual scoping out your detached barn, youwill not fall under Texas Penal Code §9.32, because it is not considered anoccupied habitation. Note under our examples you may very well be justifiedunder another section of the law in the use of deadly force, but not underTexas Penal Code §9.32, or what the media calls the “CastleDoctrine.” 

What if a TrespasserStarts Committing Other Property Crimes?
What about defense of property?The use of deadly force to protect property is contained in Texas Penal Code§9.42. This section of the law lays out a couple of scenarios where you arejustified in reasonably using deadly force to protect your property. The firstis if someone is committing trespass or interference with your property and youmust reasonably use deadly force to prevent arson, burglary, robbery,aggravated robbery, theft during the nighttime or criminal mischief during thenighttime. If someone is unlawfully on your property and attempting to commitany of these crimes, you will gain the legal justification for using deadlyforce.
The second scenario isthe law of recovering your property by using deadly force. Texas has a 3-prongtest that, if met, gives a justification in using deadly force to recoverstolen property. This test is as follows: (1) force is necessary to prevent orterminate another’s trespass on land or unlawful interference with theproperty, (2) deadly force is reasonably necessary to prevent another who isimmediately fleeing after committing burglary, robbery, aggravated robbery, ortheft during the nighttime from escaping with the property, and (3) the personreasonably believes that the property cannot be recovered by any other method orthat the use of non-deadly force to recover the property would expose them to asubstantial risk of death or serious bodily injury. We as lawyers cannot stressenough that under this scenario, while the law may allow you to use deadlyforce – It Is Most Likely A Very Bad Idea!

As you see, criminaltrespass alone is not one of the crimes listed in Texas Penal Code §9.42 oreven as part of the “Castle Doctrine” under §9.31 or §9.32. A merecriminal trespass may, however, evolve into one of the above crimes where youmay be justified in using deadly force to protect your property. Let’s takeanother example, if someone decides to sit on your lawn, you holler at themfrom your bedroom window to “get off my property.” If the trespasserrefuses to leave, you are almost certainly not justified in using deadly forceto remove him. But if that person sitting on your lawn gets up and chargestowards your bedroom window with a firearm and a crow bar, you will very likelybe legally justified in using deadly force to protect yourself and your home.His actions of charging you with a weapon make him more than just a trespasser under Texas law.

Criminal Prosecution Even If You Were Justified.
Just because Texas law affords you a legal justification for using deadly force when someone attacks you or enters or removes you from your occupied habitation, vehicle, or workplace, does not mean you are immune from being arrested or criminally prosecuted – even if you are completely in the “right” as far as the law is concerned. Your right to assert legal justifications is just that: a legal justification. It is not a get out of jail free card, or an “I get to skip the entire legal process” card. In fact, always remember, there is a high possibility that you will go to jail and have to post bond to get out long before the issue of justification is considered by the government. We see cases like this commonly under the firearms program, not to mention seeing cases of this nature unfold in other states everyday. You may ultimately have to go to court and assert your justification defense before a judge or jury. This process may take months or even years to get resolved. You just dont know.

Does Texas Have a Stand Your Ground Law?
The term “stand your ground” law, again, is not a legal phrase but a phrase the media frequently uses in its reporting. Texas law tells us that there is no duty to retreat if faced with a situation where you have to use force or deadly force to protect yourself or another. Even if by retreating you could avoid the entire confrontation, you do not legally have to. Texas Penal Code §9.32(c) states that in defending yourself or another person, you have no duty to retreat if:
(1) you have a legal right to be at the location where deadly force is used, 
(2) you did not provoke the person against whom deadly force was used, 
(3) and you were not engaged in criminal activity at the time deadly force was used. 

The statute is better classified as a “no duty to retreat” law. Under these very limited circumstances, a prosecutor or law enforcement can no longer argue that you had a reasonable “escape route” or that you should have had to “fall back” before justifiably using deadly force. If you are facing a criminal charge, qualifying under this statute could mean the difference between a conviction or not!In order to receive the “no duty to retreat” protection from the law, first, you must have been justified under the Texas Penal Code in using force or deadly force. 

As we discussed above, Texas Penal Code §9.32 states that you will be presumed to be legally justified in using deadly force if someone is entering, attempting to enter, removing you or attempting to remove you from your occupied habitation, vehicle, or workplace. Texas Penal Code §9.32 also states that you will be presumed to be justified in using deadly force if someone commits or attempts to commit: aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Deadly force can be used to stop any of these crimes, as well as when it may be immediately necessary to protect yourself or another person from the attacker’s use of deadly force. If you are anywhere you have a right to be, only then does the use of deadly force with no duty to retreat apply under the statute. To paraphrase a very effective jury argument, the statute is designed to protect you when “trouble finds you, but not when you go looking for trouble.”Disqualifications for No Retreat Protection

There are multiple situations where your conduct may potentially disqualify you from the Texas “no duty to retreat” provision. In order to receive Texas Penal Code §9.32(c)’s “no duty to retreat” protection, you must be justified in using force under Texas Penal Code §9.31. Second, the no retreat statute itself has three more qualifications that must be met before you gain the statute’s protection.Disqualifying Under Texas Penal Code §9.31

If you want to protect yourself or another person, there are multiple situations under Texas Penal Code §9.31 where you will not be justified in using force or deadly force. If you fall under one of the following situations, you will not be given the “no duty to retreat” protection in the legal system:
1. The use of force is not justified in response to verbal provocation alone. (If someone is only yelling at you, you are not justified in using force against them).
2. You will not be justified in using force to resist arrest or search being made by a police officer. Even if the arrest or search is ultimately proven to be unlawful.
3. The use of force against another is not justified if you consent to the force. (No dueling or consenting to gun fights).

4. If you seek a discussion with another person regarding your differences while unlawfully carrying a weapon, you will not be given the “no duty to retreat” protection. Unlawful carry of a weapon includes:
a. a non-CHL holder carrying in places other than their premises, vehicle or watercraft; 
b. having a handgun in plain view;
c. engaging in criminal activity while carrying a weapon; or,
d. carrying a weapon by a person who is a member of a criminal street gang.

Qualifying Under the No Duty to Retreat Statute
As we discussed earlier, the first thing that must be satisfied to receive the no duty to retreat protection is that the person had a legal right to be in the location where deadly force was used. What does the law mean that you “have to be in a location where you have a legal right to be?” The best way to address this topic is to discuss places where you do not have a legal right to be. Any location where you would be considered a trespasser is by definition, a place where you do not have a legal right to be. Under Texas Penal Code §30.05, a person becomes a criminal trespasser if a person enters or remains on property without effective consent, or the person had notice that entry was forbidden or received notice to depart but failed to do so. Notice of trespassing includes: oral or written communication, fencing, signs posted on the property indicating that entry is forbidden, purple paint marks on trees or posts on the property, or crops for human consumption growing on the property. As long as you are in a place where you are not considered a trespasser by the law, you most likely have a legal right to be there under the no duty to retreat statute.

If you satisfied the location test, you cannot have provoked the other’s use or attempted use of force. You can’t start the fight and claim justification, however, there are several exceptions to this rule. (Yes, an exception to the exception.) If you abandon the encounter or clearly communicate your intent to abandon and you cannot do so safely, and the other continues to use unlawful force against you, you do not have a duty to retreat.

A very similar scenario recently played out in a district court in Harris County. The accused was convicted of murdering his neighbor in a conflict that started with a noise complaint. The accused videotaped the entire confrontation. If you watch the last couple of minutes of the video, it appears that the accused was justified in discharging his firearm after three men charged him. However, the previous approximately twenty minutes of the video showed the accused leaving his property with his handgun, trespassing on his neighbor’s property, and taunting the neighbors by flashing his pistol. Thus, the accused did not qualify for the “no duty to retreat” statute. In fact, the prosecutor in that case told the jury that “self-defense was never meant to protect the one that started the fight.” The jury only deliberated for 90 minutes before returning a verdict of guilty on a murder charge and ultimately sentenced him to 40 years in prison.
Finally, you cannot be engaged in any criminal activity, other than a Class C misdemeanor traffic offense, at the time deadly force was used and claim self-defense. I would advise refraining from any criminal activity.

As you can see, the Texas versions of the Castle Doctrine and Stand Your Ground laws are extremely complex and cannot be summarized with a simple catch phrase. These topics consume thousands of pages of legal treatises and many lawyers’ careers, so obviously this article is only a brief overview. I hope, however, this newsletter provides you with a better understanding of both of these legal topics, and if you have any questions about Texas firearms laws, do not hesitate to contact us.

Michele Byington
Texas Law Shield, LLP

Texas Law Shield, LLP
1020 Bay Area Blvd. Suite 220
Houston, TX 77058