When can you use deadly force in Texas? Defense Attorney Nico LaHood explains what the law allows.
SAN ANTONIO — A San Antonio homeowner saw a woman walk into his front yard Saturday Morning while working on his car in yard.
The man later told police he suspected the woman was a burglar of thief and told her to leave. When she didn’t, he pulled out a gun. When she started walking towards the homeowner while he was still holding the gun he shot her.
The woman went to the hospital in critical condition and SAPD arrested the man for aggravated assault with a deadly weapon.
KENS 5 spoke to attorney Nico LaHood with the LaHood Norton Law Group to find out when a homeowner can use deadly force when dealing with an intruder.
Your home is your castle. Your yard is not.
According to the Texas Penal Code (Section 9.32), a person is justified in using deadly force against another when that person “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.”
Put simply, you can shoot someone if they are invading your home, vehicle or place of work. Defense Attorney Nico LaHood said Texas does not have a statute officially called “the castle doctrine” but the principle is still there.
“If somebody is trying to burglarize your habitation, your house, you can use deadly force to stop that.” LaHood said.
At the same time, a person’s property around their home, often their front or back yard, is not your “habitation”. That means use of force rules in your yard or the property outside your home are different.
LaHood said you can use non-deadly force to stop a trespass in your yard but you can only use deadly force if the situation meets certain criteria.
“Is there a reasonable belief of apparent danger and is it imminent?” LaHood said. “That three part analysis has to be looked at when you are evaluating someone’s use of force, deadly force, on a criminal trespass alone. Criminal trespass alone does not give you the right to use deadly force.”
Using deadly force outside your home
Again, according to the Texas Penal Code (Section 9.32), “A person is justified in using deadly force against another…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.”
If a person is in their yard, LaHood said a person must be confronted with apparent imminent danger before using deadly force.
The concept of “apparent” does allow the person some leeway. A person using force must have a reason to believe they are in imminent danger. If a person is in their yard and an intimidating individual gets out of a vehicle and breaks into a straight sprint towards them, LaHood said the person could easily claim that they appeared to be in danger.
The presence of a weapon can also justify “apparent” danger. If a person is confronted with an angry neighbor but there is no aggression and no weapon, the person would not be able to claim apparent danger. If the neighbor then pulls out a gun, that would change things.
“If come out on to my property and pull out a gun, I’m in actual danger,” LaHood said. “The scenario can change just because of one fact.”
Still, a home owner would not be able to claim “apparent” danger if a trespasser is committing a non-violent crime. If a person comes onto a persons property and begins to steal a motorcycle, the homeowner in the yard is still not in apparent imminent danger and would not be justified in shooting the thief or otherwise using deadly force.
“You have to believe that you are in immediate physical danger to use deadly force,” LaHood said.
Nighttime makes a difference
Nighttime brings another element to the use of deadly force and allows it to be used in situations that would not be allowed during the day.
According to Texas Penal Code Section 9.42, “A person is justified in using deadly force against another to protect land or tangible, movable property…if he would be justified in using force against the other under Section 9.41… 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…”
While a person could not use deadly force against someone stealing something off your property during the day, they would have a much stronger defense in using such force at nighttime.
“You don’t know what they are doing or what their intent is (at nighttime),” LaHood said. “Vision matters in a self defense situation and so you are giving stronger rights to defend your property from criminal mischief. If someone is destroying your property at nighttime the statute says you can use deadly force to defend that.”