Defenses to Assault

DEFENSES TO ASSAULT OFFENSES

Contact Brittany Carroll Lacayo at 713-504-0506 to schedule a FREE initial consultation and case evaluation. Brittany Carroll Lacayo can evaluate your case to discover whether there is a defense to your criminal homicide, murder defense, murder defense attorney, murder defense charge attorney, murder in self defense, defense attorney, criminal defense attorney, criminal homicide cases, criminal defense attorneys, criminal defense attorney texas, defense attorneys, first degree murder, criminal lawyer, second degree murder, best criminal defense attorneys, background check, criminal defense lawyer, federal criminal defense attorney, homicides, criminal lawyers, criminal defense, criminal attorney, defense lawyer, background check free, what is homicide, top criminal defense attorneys, defenses to murder, texas criminal defense attorney, criminal attorneys, background checks, criminal charges, free online background checks, fbi background check, non criminal homicideassault case.

SELF DEFENSE

A person is justified in using force against another when and to the degree the person reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.

The person’s belief that the 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 actor’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 actor from the actor’s habitation, vehicle, 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 traffic violation.

Under Texas law, force against another person is not justified:

  • in response to verbal provocation alone;
  • to resist an arrest or search that the actor 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 before the actor 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 actor 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;
  • if the actor consented to the exact force used or attempted by the other;
  • if the actor provoked the other’s use or attempted use of unlawful force, unless the actor 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 actor; or
  • if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was unlawfully carrying a weapon or unlawfully possessing or transporting a weapon.

No Duty to Retreat Before Acting in Self Defense

A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force.

Using Deadly Force in Self Defense

A person is justified in using deadly force against another person if the actor would be justified in using non-deadly force against the person; and when and to the degree the person reasonably believes the force is immediately necessary to protect the actor against the other’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.

The person’s belief that the force was immediately necessary is presumed to be reasonable if the person:

  • 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 person’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 person from the actor’s habitation, vehicle, or place of 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 traffic violation.

No Duty To Retreat Before Using Deadly Force in Self-Defense

A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force in self-defense.

DEFENSE OF ANOTHER PERSON

A person is justified in using force or deadly force against another person to protect someone else if under the circumstances the person reasonably believes them to be, the person would be justified in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the person he seeks to protect, and the person reasonably believes that his intervention is immediately necessary to protect the person.

PROTECTION OF LIFE OR HEALTH

A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself.

A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other’s life in an emergency.

PROTECTION OF ONE’S OWN PROPERTY 

A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the person reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

A person who had their land or property unlawfully taken from them, is justified in using force against the other when and to the degree the person reasonably believes the force is immediately necessary to reenter the land or recover the property if the person uses the force immediately or in fresh pursuit after the dispossession and the person reasonably believes the other had a claim of right when he took the land or property; or the other accomplished the act by using force, threat, or fraud against the person.

Use of Deadly Force to Protect One’s Own Property

A person is justified in using deadly force against another to protect land or property if:

  • he would be justified in using force to protect his property, and
  • when and to the degree he reasonably believes the deadly force is immediately necessary to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime, or to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property, and
  • he reasonably believes that the land or property cannot be protected or recovered by any other means; or the use of force other than deadly force to protect or recover the land or property would expose the person or another to a substantial risk of death or serious bodily injury.

PROTECTION OF ANOTHER PERSON’S PROPERTY 

A person is justified in using force or deadly force against another to protect land or property of another person if, under the circumstances as he reasonably believes them to be, the person would be justified to use force or deadly force to protect his own land or property and:

  • the person reasonably believes the unlawful interference constitutes attempted or completed theft or criminal mischief to the property, or
  • the person reasonably believes that the other person has requested his protection of the land or property, he has a legal duty to protect the other person’s land or property, or the other person whose land or property he uses force or deadly force to protect is the person’s spouse, parent, or child, resides with the person, or is under the person’s care.

INSANITY

It is an affirmative defense to prosecution that at the time of assault, the person, as a result of sever mental disease or defect, did not know that his conduct was wrong.

MISTAKE OF FACT

It is a defense to prosecution that at the time of the assault the person through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the assault.

MISTAKE OF LAW

It is an affirmative defense to prosecution for assault that the person reasonably believed the assault did not constitute a crime and that he acted in reasonable reliance upon an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question, or a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question.

INTOXICATION

Voluntary intoxication does not constitute a defense to assault. However, evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the assault.

DURESS

It is an affirmative defense to prosecution for assault that the actor engaged in the assault because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another. In a prosecution for an assault, that does not constitute to a felony (not aggravated assault for example), it is an affirmative defense to prosecution that the actor engaged in the assault because he was compelled to do so by force or threat or force.

Texas law only considers a person compelled to act if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure

This defense is unavailable if the person intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.

It is not a defense that the person acted at the command or persuasion of his spouse, unless he acted under compulsion.

JUSTIFICATION

It is a defense to prosecution for assault that the person is justified in using force.

Conduct is justified if the person reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process. The use of deadly force is not justified unless the actor reasonably believes the deadly force is specifically required by statute or unless it occurs in the lawful conduct of war. If deadly force is so justified, there is no duty to retreat before using it. Justification is available if the actor reasonably believes the court or governmental tribunal has jurisdiction or the process is lawful, even though the court or governmental tribunal lacks jurisdiction or the process is unlawful, or his conduct is required or authorized to assist a public servant in the performance of his official duty, even though the servant exceeds his lawful authority.

Conduct is also justified if the person reasonably believes the conduct is immediately necessary to avoid imminent harm; the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

If you would like an attorney to investigate a possible defense for your assault case contact Brittany Carroll Lacayo at 713-504-0506 to schedule a free initial consultation and case evaluation.

 


The information contained on this site is for general informational purposes only. The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult a Houston criminal defense attorney for advice regarding your own individual situation. We invite you to contact Brittany Carroll Lacayo at 713-504-0506 to schedule a free initial consultation and case evaluation. Use of this website or submission of an online form, does not create an attorney-client relationship

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