On behalf of Law Office of Jeffrey R. Gilbert, P.C.
The use of deadly force in self-defense: No duty to retreat
A recent fatal shooting
The 2013 case involving the fatal shooting of a teenage boy in Florida, in which the defendant was found not guilty under the "stand your ground" law, has attracted national attention. What this case meant was, when confronted by another person using, or attempting to us, deadly force, you were justified in using deadly force in return, without the necessity of attempting to retreat if possible. The history of how we arrived at this situation, in Florida as well as Texas, is a long and interesting one.
While it was never the majority rule, at one time there were some states which required those facing deadly force to retreat. Texas was one of those states. This duty had been recognized since the state Penal Code was amended in 1973.
Even in these states with the retreat doctrine, there was usually recognized an exception to the rule, what is known as the "Castle Doctrine," under which you did not have a duty to retreat if you were attacked in your own home. Until 1995, Texas was in the minority of states that did not recognize the Castle Doctrine, which meant that you alwayshad a duty to retreat.
In 1995, Texas passed its version of the Castle Doctrine, which abrogated the duty to retreat while in your own home. This law existed some 10 years, before it was changed again.
The present state of the law
In 2005, Florida passed its "stand your ground" law. Texas followed suit in 2007, joining 22 other states. A local law professor was recently quoted by the San Antonio Express News as saying that the law, which was passed by the legislature without much attention, "really was under the radar."
Under the same statute mentioned above, the duty to retreat was removed for people who were attacked in their homes or any place else, so long as the person had the "right to be present at the location where the force is used." In other words, you can use deadly force before retreating as long as you are not engaged in intruding on someone else's private property. The Castle Doctrine, which deals specifically with the use of deadly force inside the home, is now dead.
Under the law, the use of deadly force is presumed reasonable where someone enters (or attempts entry) of a person's home which is occupied, a vehicle, or a workplace, "unlawfully and with force."
This requirement, that the prosecutor must prove that using deadly force in the home was not self-defense, in place of the normal requirement that the defendant has the burden of proving self-defense, does have critics. A county attorney spokesperson has said, "That can be a significant burden in a murder case where your best witness is dead."
If you are involved in a situation where you have been charged with a crime involving the use of deadly force, where you did not retreat, you should immediately contact an experienced criminal defense attorney to investigate the facts of your situation to determine whether you had the right to defend yourself under the Texas Penal Code.