​Clients often inquire about state law relating to the armed defense of their Texas homes.  The following article provides information concerning Texas statutory law on this subject, as well as a discussion of common misconceptions.

​Texas is a “Stand Your Ground” state.  As long as a Defender “has a right to be present at the location where the [sic] deadly force is used,”* and the use of deadly force is otherwise lawful, no distinction is make in Texas state law between one’s “home” or any other location.  The relevant statute provides:

​Furthermore, “(f)or purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
 
Texas Penal Code § 9.32(d) (emphasis added).

Texas statutory law explicitly allows for the use of force, including deadly force, to defend against certain violent crimes committed against a Defender or third-parties, where the crime is committed in the Defender’s “occupied habitation, vehicle, or place of business or employment.”  Arguably, the protections contained in the statute include what is referred to in legal parlance as the “curtilage” of the property (a home’s porch, steps, garage, or yard), as the statute specifically refers to the use of deadly force to protect against someone “attempting to enter unlawfully and with force.”  One must, by definition, be physically present in the curtilage of a property in order to “attempt to enter” the property.
​
Likewise, the statute’s explicit protection of “occupied habitation” and “vehicle” would seem to protect non-traditional “homes,” such as automobiles, tents, and the like.

​The Texas statute relating to the use of (non-lethal) force states:

The Texas statute relating to the use of deadly force builds on section 9.31 (use of non-lethal force), stating:

A.  Misconception: 
Texans should feel free to take advantage of Texas’ permissive (as compared with many other states’) laws relating to the use of deadly force.

B.  Misconception:
​Criminal defense attorneys understand how to best handle a self-defense case.

C.  Misconception:
The Defender believes he “didn’t do anything wrong” and therefore will not be charged with a crime or civilly sued for damages or, similarly, the judge/jury will understand that the Defender acted in self-defense and I will not be convicted.

The vast majority of individuals who lawfully carry a firearm for self-defense have probably never hired a criminal defense attorney. This, of course, is a good thing. However, every lawfully armed private citizen should know what to consider if, Heaven-forbid, the need to hire a criminal defense attorney for a self-defense case ever arises.
 
The vast majority of criminal defense cases are handled by court-appointed lawyers, that is, by lawyers from the local Public Defender’s Office or some similarly-named entity. The remainder, save for cases in which the defendant represents himself (which is seldom a good idea), are handled by private criminal defense counsel. Since most lawfully-armed private citizens who find themselves in need of criminal defense counsel are not financially eligible for government-appointed counsel  (which is a good thing!), most will need to hire private defense counsel.
 
Regardless of whether a private or court-appointed defense attorney is used, standard criminal defense practice typically involves two factors that, from the outset, run contrary to the self-defense defendant’s best interests.
 
The first of these two factors is that criminal defense practice, both court-appointed and private practice, typically involves a high-volume case-load. Court-appointed defense counsel are often assigned so many cases that it simply is not possible for counsel to devote much time to each individual case. Accordingly, court-appointed defense counsel usually seek to negotiate a plea bargain for the vast majority of their clients.
 
Similarly, private defense counsel typically employ a business model where a flat-fee (paid at the beginning of the representation) is charged for all pre-trial legal work, with additional (often hourly) fees charged if the case goes to trial.  Thus, baked into the fee contracts that are used by most private defense attorneys is a financial incentive for the attorney to do as little work as possible (e.g., plead the client guilty) in order to quickly “earn” the pre-trial flat-fee. By pleading a client guilty as early in the process as possible, the attorney is able to pocket his flat-fee and quickly move on to the next case, thereby using the flat-fee to maximize the attorney’s effective hourly rate (which may turn out be considerably higher than the attorney’s regular hourly rate).
 
Many private criminal defense lawyers might balk at this characterization of their business model; however, the economic facts speak for themselves.
 
The second of the two factors, which is related to the first factor, is that the criminal defense client (defendant) is usually presumed – not by the legal system, but by his attorney – to be guilty. The (usually unstated) reason for this is, of course, because the vast majority of criminal defendants did, in fact, commit the act(s) that constitute the charged, or a related, offense.
 
State and local police, as well as sheriff’s deputies, although far from perfect, generally do a pretty good job. That is, they usually don’t arrest factually-innocent people. Likewise, most state and local prosecutors typically do not prosecute people without a legal and factual basis for doing so. Accordingly, the criminal defense attorney’s assumption that his client is probably guilty of something is not, at least statistically, unreasonable.
 
Almost without exception, prosecutors, criminal defense attorneys, and judges possess a law degree and have passed at least one bar examination. Thus, each of these participants in a self-defense criminal case can be assumed to have at least a passing familiarity with the defense of self-defense. However, it should not be assumed that these participants possess a working knowledge, and a true understanding, of the legal aspects of the defense of self-defense.

Lastly, the overwhelming majority of attorneys and judges are not “gun people.” Many may not own firearms and, even among those who do, most are likely not educated in the strategies and tactics of armed self-defense.
 
In summary, do NOT hire an attorney for a self-defense case who:

1. Presumes that you committed a crime.
   
   
2. Uses a fee contract that incentivizes pleading you guilty. 
   
   
3. Does not fully understand the law relating to self-defense; and
   ​
4. Is not knowledgeable in the strategies and tactics of armed self-defense.

When analyzing the issue of whether a defendant in a self-defense criminal case should testify, two major concerns should be considered. The first concern deals solely with the factual and legal issues presented by the case, without regard to issues relating to the particular defendant; the second concern relates to issues involving the particular defendant.

The analysis that follows assumes a hypothetical case in which the evidence is likely to show that a criminal defendant acted lawfully, in self defense, and that the defense team reasonably believes the defendant should (if everything goes well at trial) be found not guilty.

Conventional criminal defense “wisdom” is for attorneys to counsel their clients to not testify at trial. The primary reason for this is because the U.S. Constitution protects the right of criminal defendants to not be compelled to be a witness against themselves, which has been held to include a prohibition against prosecutors bringing to the jury’s attention that the defendant exercised his right to not testify at trial. This strategy forces prosecutors to “prove their cases” in order to obtain criminal convictions.

Criminal defendants in self-defense cases have exactly the same constitutional rights – including the right against self-incrimination – as do defendants in non-self-defense cases.
The substantive plea that a defendant enters at the outset of every criminal case is always the same: “Guilty” or “Not Guilty.”

A plea of “Not Guilty” can mean many different things, most of which do not apply to self-defense cases.

A “Not Guilty” plea can mean the defendant is claiming:

To obtain a conviction, the government – in every criminal prosecution – bears both the burden to prove the defendant’s guilt beyond a reasonable doubt and the burden to present evidence.

In every criminal case, the government is the first party to present evidence. For example, in a hypothetical murder case, the government would likely present evidence that the defendant was armed and that the defendant shot and killed the decedent (e.g., “victim”). The defense, during cross-examination of government witnesses (both lay witnesses and expert witnesses), might challenge the government’s evidence by, for example, trying to show that witnesses for the prosecution are not credible or that the physical evidence offered by the prosecution isn’t reliable or simply doesn’t prove what the prosecution would like it to prove, thus creating reasonable doubt as to the defendant’s guilt.

After the government has finished presenting its case, the defendant is given an opportunity to present his defense. In non-self-defense cases, such evidence might include calling defense witnesses (both lay witnesses and expert witnesses) whose testimony (further) brings into question the reliability of, or directly contradicts, the evidence that was offered by the prosecution. Just as the defense had an opportunity to cross-examine the prosecution’s witnesses, so too, the prosecution is given an opportunity to cross-examine defense witnesses.

Up to this point, trial procedure for non-self-defense and self-defense cases is identical.

But now, procedurally, things change. The defendant in our hypothetical murder case, by alleging the affirmative defense of self defense has, by definition, admitted that he used a firearm to shoot and kill the decedent (e.g., “victim”).

Because the self-defense defendant, as compared to the government, has superior access to evidence relating to self defense (e.g., defendant’s potential testimony), the burden to produce evidence on the issue of self defense – but not the burden to prove innocence – shifts from the government to the defense.

The government, in the presentation of its case, might very well have (inadvertently) offered evidence that the defendant acted in self defense. However, in the abstract, it is much more probable that the defendant will be better situated to offer evidence of self defense. The best form of such evidence is often the defendant’s testimony.

After the defendant produces evidence of self defense, the burden to produce evidence then shifts back to the government, requiring the government to negate, if it can, any reasonable doubt as to whether the defendant acted in self defense.

What constitutes appropriate or sufficient evidence of self defense will be determined by the law of the jurisdiction (e.g., state) in which the defendant is being tried.

Thus, we see that, unlike in non-self-defense cases, where the default position is that defendants do not testify, the default position in self defense cases is that such defendants do testify.

One of the major considerations in deciding whether a self-defense defendant should testify is whether the defendant is capable of giving persuasive testimony.

Giving persuasive testimony is a skill, like many other skills. It requires, of course, the ability to give truthful testimony; however, not all truthful testimony is persuasive.

The ability to give persuasive testimony does not mean a person must be highly educated. Police officers, many of whom have little or no college education, often give highly persuasive testimony. Almost all police officers have received at least some training to develop their skills as a witness.

Some highly educated, knowledgeable, and degreed individuals, on the other hand, lack the skills needed to give persuasive testimony. This, however, does not describe the expert witnesses whom the government can be expected to call in support of their case. Such witnesses are almost always quite skilled in giving persuasive testimony.

A self-defense defendant’s defense team will likely try to prepare the defendant to testify. Such preparation is intended to prepare the defendant to give truthful, persuasive testimony. It is not intended, as the saying goes, to prepare the defendant to “Test-A-Lie” (as opposed to “testify”).

Some people possess a greater innate ability to provide persuasive testimony, as compared to others. Nevertheless, the ability to develop a degree of skill which enables one to give persuasive testimony is easily within the capability of most people.

Another consideration relates to the issue of “bad” or “collateral” facts and whether, as mentioned above, the self-defense defendant can give truthful, persuasive testimony which is reasonably likely to mitigate or overcome these facts.

Such “bad” or “collateral” facts might include:

1. Modifications to the firearm that was used in the self-defense incident;
   
   
2. Evidence that the defendant has what might reasonably be perceived as an anger management problem;
   
   
3. Controversial pre-incident statements made by the defendant (e.g., social media posts, etc.);
   
   
4. Controversial slogans on the defendant’s clothing, bumper stickers, etc.

The government can be expected to attempt to exploit anything it can in its attempt to paint a self-defense defendant as some type of gun nut, reckless person who was looking for an excuse to shoot someone, or the like. A prudent person who carries a firearm for self defense will, through their everyday conduct, consciously refrain from supplying the government with this type of inflammatory, albeit questionably relevant, evidence.

The general “rule” is that most (non-self-defense) criminal defendants should probably not testify at trial. In self-defense cases, on the other hand, the general “rule” is that most defendants probably should testify at trial, as such defendants are likely the only source of certain evidentiary facts.

Nevertheless, general rules are just that. Both the facts and people involved in each case are different from every other such case. Accordingly, whether a defendant should testify in any particular criminal case is a decision that must be made on a case-by-case basis.