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Defense of Habitation in Texas

1/3/2025

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​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.

I.  WHETHER TEXAS REQUIRES DEFENDERS TO RETREAT BEFORE USING DEADLY FORCE INSIDE THE CONFINES OF THEIR HOME


​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:
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​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 as described by this section.
​Texas Penal Code § 9.32(c) (emphasis added).

​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).
​* As of this writing, no reported appellate case has been found in which the prosecution has argued that a person is not entitled to the protection of section 9.32(c) if that person is not lawfully present in the United States.

II.  WHETHER TEXAS DEFINES THE TERMS “DWELLING,” “HABITATION,” AND “ABODE” BROADLY OR NARROWLY


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:
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(a)  Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.  The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
 
(1)  knew or had reason to believe that the person against whom the force was used:
 
(A)  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;
 
(B)  unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
 
(C)  was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
 
(2)  did not provoke the person against whom the force was used; and
 
(3)  was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
 
(b)  The use of force against another is not justified:
 
(1)  in response to verbal provocation alone;
 
(2)  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 the resistance is justified under Subsection (c);
 
(3)  if the actor consented to the exact force used or attempted by the other;
 
(4)  if the actor provoked the other’s use or attempted use of unlawful force, unless:
 
(A)  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
 
(B)  the other nevertheless continues or attempts to use unlawful force against the actor;  or
 
(5)  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:
 
(A)  carrying a weapon in violation of Section 46.02;  or
 
(B)  possessing or transporting a weapon in violation of Section 46.05.
 
            ¶
 
            ¶
 
(e)  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 as described by this section.
 
(f)  For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.
​
​Texas Penal Code § 9.31 (emphasis added).

The Texas statute relating to the use of deadly force builds on section 9.31 (use of non-lethal force), stating:
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(a)  A person is justified in using deadly force against another:
 
(1)  if the actor would be justified in using force against the other under Section 9.31; and
 
(2)   when and to the degree the actor reasonably believes the deadly force is immediately necessary:
 
(A)  to protect the actor against the other’s use or attempted use of unlawful deadly force; or
 
(B)  to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
 
(b)  The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
 
(1)  knew or had reason to believe that the person against whom the deadly force was used:
 
(A)  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;
 
(B)  unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
 
(C)  was committing or attempting to commit an offense described by Subsection (a)(2)(B);
 
(2)  did not provoke the person against whom the force was used; and
 
(3)  was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
 
(c)  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 as described by this section.
 
(d)  For 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 (emphasis added).

III.  COMMON – BUT MISTAKEN – BELIEFS ABOUT HOME DEFENSE IN TEXAS


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.
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Attorney Opinion:
​Regardless of how “permissive” a state’s use of deadly force laws may appear, the best course of action is to always avoid the use of deadly force if such avoidance can be accomplished without unreasonably exposing the Defender or third-parties to life-threatening harm.  “Permissive” use of force laws were enacted not to encourage avoidable uses of deadly force but, rather, to protect an individual from criminal liability if the individual finds himself in a situation in which the use of deadly force cannot reasonably and safely be avoided.


B.  Misconception:
​Criminal defense attorneys understand how to best handle a self-defense case.
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Attorney Opinion:
See our recent article: How NOT to Hire a Criminal Defense Attorney for 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.
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Attorney Opinion:
There are never any guarantees when a case goes to trial.  That’s a primary reason why an overwhelming majority of cases – both criminal and civil – settle before trial.
This article also appeared in a January 2025 newsletter published by the Armed Citizens Legal Defense Network

Lapin Law Group is Your Firearms Law Firm Who Supports the Second Amendment and All That it Stands For
Do you need help with a firearms law-related issue?
Call us today at 877.570.2200
CLICK HERE to send us an email
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Nationwide Firearms Legal Services

Services limited to Federal Firearms Law issues arising under the National Firearms Act of 1934 and the Gun Control Act of 1968
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DISCLAIMER

The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

Lapin Law Group, with its principal office in the Dallas-Fort Worth Metroplex, serves all 254 Texas counties.​
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How NOT to Hire a Criminal Defense Attorney for a Self Defense Case

6/23/2024

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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.

Lapin Law Group is Your Texas Firearms Law Firm Who Supports the Second Amendment and All That it Stands For
Hire a Second Amendment Attorney for your firearms legal matters
Call us today at 877.570.2200
CLICK HERE to send an email
​For more information on the Firearms Law services that are available through Lapin Law Group, watch our popular video below.
​For more information on the Criminal Defense services that are available through Lapin Law Group, watch our popular video below.
​​Learn how you can have a Lawyer Available Whenever to review your legal documents and answer your legal questions. Watch our video.
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Nationwide Firearms Legal Services

Services limited to Federal Firearms Law issues arising under the National Firearms Act of 1934 and the Gun Control Act of 1968
FederalFirearmsLaw.com
DISCLAIMER
The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and shall not constitute legal advice or serve as the basis for the creation of an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

Lapin Law Group, with its principal office in the Dallas-Fort Worth Metroplex, serves all 254 Texas counties.

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How to Decide Whether to Testify at Your Criminal Self-Defense Trial

5/1/2024

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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.

I. Legal Issues

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:
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(i) factual innocence (e.g., “I didn’t do it”);

(ii) insufficient evidence exists to support a conviction (e.g., “you [the government] can’t prove – through admissible evidence – that I committed a crime”);

(iii) the statute under which the defendant is being prosecuted is unconstitutional;

(iv) prosecution is barred by the statue of limitations, or

(v) there is legal justification for commission of the charged acts (e.g., “I committed the acts which constitute the offense, but some other fact(s) negates criminal liability (e.g., I acted in self-defense)”). This type of defense is what’s known as an “affirmative” defense, “affirmative” because the defendant admits committing the acts, but alleges having been legally justified in doing so.
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.

II. Issues Relating to the Defendant

(A.) Testimonial Skills:
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.

(B.) Bad and/or Collateral Facts:
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.

Conclusion

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.
This article also appeared in a May 2024 newsletter published by the Armed Citizens Legal Defense Network

Lapin Law Group is Your Texas Law Firm - from Jailhouse to Courthouse
Call us today at 877.570.2200
CLICK HERE to send us an email
DISCLAIMER
The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

Lapin Law Group, with its principal office in the Dallas-Forth Worth Metroplex, serves all 254 Texas counties.

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Texas Deferred Adjudication: Is it a “Bait-and-Switch”?

7/7/2021

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The overwhelming majority of us want to live and work in a safe and orderly society where people are free to go about their legitimate business without being victimized by criminals.  Thus, we see that “law and order” (not just the television show, but also the enforcement of laws and punishment of crime) is a good thing.

We also want a government that administers the laws, not just in a fair and impartial manner, but also in a manner that strikes an appropriate balance between what is in the best interest of society and what is in the best interest of the criminal defendant.  That is why we call it the criminal “justice” system, not the criminal “vengeance” system.

It is not uncommon, nor has it been uncommon throughout the generations, for a young person to run afoul of the law on a single occasion, only to turn his life around and become an “upstanding” and productive member of society.  This is the type of person for whom “deferred adjudication” was intended.

The concept of deferred adjudication, as it is practiced throughout the United States, generally works as follows:
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An adult, but youthful, first-offender, who typically committed a crime that is not too serious (perhaps surprisingly, many crimes that are classified as “felonies” fall into this category) is arrested.

The prosecutor realizes that the defendant is probably not a “bad kid” who is just beginning a life of crime, but rather, is a kid who probably just made a one-time, big mistake.

The prosecutor decides to give the youthful defendant an opportunity to accept responsibility for this big mistake, while at the same time, allowing the defendant to avoid the lifelong consequences of a criminal conviction.

The consequences of an adult criminal conviction can include an inability to obtain professional licenses, many positions of employment, and the loss of civil rights such as voting and firearms rights.
​
The agreement between the prosecution and the defense goes something like this:

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If the defendant successfully completes a period of probation, and perhaps pays a small fine, the criminal charge against the defendant will be dismissed, without a conviction. 

But if the defendant does not successfully complete the period of probation, or does not pay the fine, if any, then the court can find the defendant “guilty” of the offense — without the need for a trial — and, like in the board game Monopoly, send the defendant directly to jail, without passing “Go” (and, of course, without a dismissal of the criminal charge).
​
Because the ultimate outcome of the case — dismissal or conviction — will not be decided until the defendant has had an opportunity to successfully complete a period of probation (and pay any related fine), adjudication of the case is deferred until it can be determined whether, in fact, the defendant did successfully completed probation.  Hence the name “deferred adjudication.”


In Texas, however, it works a little, or perhaps a lot, differently.

Historically, most Texas cases where defendants have agreed to deferred adjudication have resulted in a conviction — not a dismissal of the criminal charges — after successful completion of probation (known in Texas as “community supervision”).

The only thing a Texas defendant typically receives after successfully completing probation is a “release” from probation and a criminal conviction.  Not a very good deal, at all.

Not surprisingly, many Texas defendants who agreed to deferred adjudication reasonably, even if erroneously, thought that the criminal charges against them would be dismissed if they successfully completed the period of community supervision (probation).

If you are a Texas defendant who agreed to deferred adjudication and you are still in the deferral period, that is, you are still on community supervision (probation), it may still be possible to have your case dismissed.  But it probably won’t happen automatically.

If you were a Texas defendant who has already been “discharged” from community supervision, a thorough examination of your court file will be needed to determine whether your case resulted in a conviction and, if so, what options might still be available to you.

Lapin Law Group is Your Texas Firearms Law Firm Who Supports the Second Amendment and All That it Stands For
Call us at 877.570.2200 to request assistance with your case
CLICK HERE to send us an email
​For more information on the Firearms Law services that are available through Lapin Law Group, watch our popular video below.
For more information on the Criminal Defense services available through Lapin Law Group, watch our popular video below.
Learn how you can have a Lawyer Available Whenever to review your legal documents and answer your legal questions.
DISCLAIMER
The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and shall not constitute legal advice or serve as the basis for the creation of an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

Lapin Law Group, with its principal office in the Dallas-Fort Worth Metroplex, serves all 254 Texas counties.

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Deferred Adjudication & Texas LTC Eligibility

6/27/2021

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The 2nd Amendment to the United States Constitution states that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The United States Supreme Court, in the landmark case D.C. v. Heller, 554 U.S. 570 (2008), held that the 2nd Amendment is an individual right — not a collective right belonging to the Militia or to the State — that existed prior to the ratification of the Constitution.  In other words, the purpose of the 2nd Amendment is to protect a right which preexisted ratification of the Constitution.

In another landmark case, McDonald v. Chicago, 561 U.S. 742, the United State Supreme Court held that, just as other amendments which protect civil rights, such as those relating to religion and speech (1st Amendment), unlawful searches and seizures (4th Amendment), due process of law (5th Amendment), and cruel and unusual punishment (8th Amendment), the 2nd Amendment was “incorporated” and make applicable to the States by the post-civil war era 14th Amendment.

Thus, the United States Supreme Court has ruled that “the people” — United States citizens — have a constitutional right to “keep” and “bear” that is, possess and carry in public, common firearms that are suitable for self-defense, D.C. v. Heller, and that neither the federal nor state governments may infringe these rights.  McDonald v. Chicago.

A small minority of states have enacted what are known as “Constitutional Carry” laws, meaning that if a person may lawfully possess firearms, that person may — without a license — lawfully carry a concealed handgun in public.

On the other hand, the vast majority of states, including Texas, now have some sort of licensing scheme which allows residents and, often, non-residents, to obtain a concealed carry license.

Of the states that issue concealed carry licenses, some are classified as “may-issue” states, while others are classified as “must-issue” states.  In a “may-issue” state, an applicant for a concealed carry license may be denied a license even though the applicant has met all the objective statutory requirements for a license, such as training, background check, and payment of a fee.  In “may-issue” states, applicants must also pass a subjective “good cause” test.  “Good cause” is determined by a government official who possesses almost unlimited discretion to deny licenses to otherwise fully-qualified applicants.  Unfortunately, in many jurisdictions, the “good cause” test seems to consist of little more than whether the applicant is politically-connected in the jurisdiction where the license is sought.

In “must-issue” states, an applicant for a concealed carry license is statutorily entitled to the license if the applicant meets all the objective criteria for the license.  Texas, fortunately, is a must-issue state.

However, just because Texas is a must-issue state, that does not mean that every Texan who may lawfully possess firearms is statutorily eligible for a concealed carry license, which in Texas is known as a License to Carry (LTC) a Handgun.

The most common reason our Texas law firm sees for LTC denials is criminal history.  More specifically, it is not uncommon for an LTC applicant to have run afoul of the law at sometime in the past, typically when the applicant was a young adult.  Now, after many years of being a responsible member of society, the applicant is still haunted by that youthful indiscretion.

The relevant statute which applies to this issue states that a person is ineligible for an LTC if the person has even been “convicted” of certain crimes — including crimes which do not affect the applicant’s right to lawfully possess firearms.  The statute does contain exceptions, but unfortunately, by the time an LTC applicant contacts a lawyer, it is not possible, or at least feasible, for the applicant to take advantage of an exception, because the applicant’s LTC application has already been denied.

Many applicants who are denied an LTC mistakenly believe that they were not “convicted” of a disqualifying offense.  Almost invariably, these applicants believe that because they successfully completed deferred adjudication for an LTC disqualifying offense, they were not “convicted” of that offense.  Sometimes this belief is correct; often it is not.

The reason for this confusion is that not all Texas deferred adjudications are “created equal.”  Different courts use different deferred adjudication forms and, of course, these different forms contain different deferred adjudication clauses.  The old saying “words mean things” is especially applicable in this context.

Persons whose LTC applications have been denied by the Texas Department of Public Safety (DPS) have a right to an administrative hearing to appeal the denial.  Administrative hearings are held in a Justice Court in the locality where the applicant resides.

In order to successfully appeal the denial of an application for an LTC, the applicant — or the applicant’s attorney — must be able to successfully rebut evidence introduced by the DPS in support of its denial of the application for an LTC.  In order to do this, it will typically be necessary to make a legal argument, supported by citations to statutory law and/or judicial decisions, which seeks to persuasively demonstrate to the Court that the DPS wrongfully denied the application for an LTC.

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The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and shall not constitute legal advice or serve as the basis for the creation of an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

Lapin Law Group, with its principal office in the Dallas-Forth Worth Metroplex, serves all 254 Texas counties.

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Has Your Purchase of a Firearm Been Delayed or Denied (Form 4473)?

6/15/2021

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When a person seeks to purchase a firearm from a federally-licensed firearms dealer (FFL), the FFL is required by federal law to obtain government approval for the transaction prior to transferring possession of the firearm to the buyer.

The federally-mandated government approval process begins with the buyer completing a “Firearms Transaction Record,” also known as an “ATF Form 4473,” or simply a “4473.”  After the buyer completes the 4473, the FFL verifies the buyer’s eligibility to receive the purchased firearm.

In Texas, this verification may be accomplished in one of two ways:  If the buyer possesses a valid License to Carry (LTC) a Handgun, the FFL need do nothing more than photocopy the buyer’s LTC.  If the buyer does not possess a valid LTC, the FFL initiates a telephone inquiry with law enforcement.  Law enforcement officials then attempt to verify the buyer’s eligibility to receive the purchased firearm through database which is setup specifically for this purpose.

The vast majority of 4473s are approved immediately and the FFL is then authorized to transfer possession of the purchased firearm to the buyer.

Of those 4473s which are not approved immediately, some are denied immediately and others are neither immediately approved or immediately denied.  Federal law provides that when a 4473 is delayed, that is, not immediately approved or immediately denied, a FFL may, but is not required to, transfer the purchased firearm to the buyer if the FFL does not receive a denial notification within 72 hours.

There are many possible reasons why a 4473 might erroneously be denied or not immediately approved.  One common reason is that incorrect information was reported to law enforcement and has thus become included in the purchaser’s criminal history record.

The solution to this type of problem is to ascertain what specific entry (or entries) in a person’s criminal history record are causing the 4473 delay or denial; determine whether that entry (or entries) is erroneous; and if an entry (or entries) is erroneous, take the appropriate steps to have the erroneous entry (or entries) corrected.

Lapin Law Group is Your Texas Firearms Law Firm Who Supports the Second Amendment and All That it Stands For
Do you need help with a firearms law-related issue?
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DISCLAIMER
The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and shall not constitute legal advice or serve as the basis for the creation of an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

Lapin Law Group, with its principal office in the Dallas-Forth Worth Metroplex, serves all 254 Texas counties.

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Was Your Application for a Texas License to Carry (LTC) Denied?

6/3/2021

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Being a good Texan who values and seeks to exercise the right to self-defense by carrying a handgun, you applied for a Texas License to Carry (LTC) a Handgun.

Unfortunately, something in your background has caused the Texas Department of Public Safety (DPS) to request that you to provide additional information or documents in support of your LTC application, or has denied your LTC application outright.

Make no mistake about it.  A request from the DPS for additional information or documents is often followed by a denial letter.

Regardless of whether the DPS has requested additional information or documents, or denied your LTC application outright, you would be well-advised to obtain the assistance of an attorney who is both knowledgeable and experienced in LTC law to assist you in attempting to persuade the DPS that you are statutorily eligible to be issued an LTC.

A request for additional information or documents, or an outright denial of your application for a LTC, will often necessitate obtaining court records from one or more courts, perhaps including courts located outside of Texas.  Once those records have been obtained, it will be necessary to review and analyze those records.

If it appears from a review of the relevant records that you are statutorily-eligible to be issued an LTC, a legal argument, supported by citations to one or more statutes and, perhaps, prior appellate court decisions, will need to be formulated and presented to either the DPS (in the case of a request for further information) or to a court (in the case of a denial of your application).

If DPS has requested more information or documents from you, or has denied your application for an LTC, you must not delay in taking action to protect your legal rights.  Failure to timely respond will result in a waiver of your rights.

Lapin Law Group is Your Texas Firearms Law Firm Who Supports the Second Amendment and All That it Stands For
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DISCLAIMER

The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and shall not constitute legal advice or serve as the basis for the creation of an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

Lapin Law Group, with its principal office in the Dallas-Forth Worth Metroplex, serves all 254 Texas counties.
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Self-Defense Shootings On and Across Roadways & From or At Vehicles

2/3/2020

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This article analyzes the hypothetical situation of whether a person who is properly licensed to carry a handgun in public (Armed Defender) would violate Texas state law by discharging that firearm, in the context of an otherwise lawful self-defense (including defense of others) shooting, while upon, or across, a roadway, or from, or at, a motor vehicle.
 
“A person commits an offense [of disorderly conduct] if he intentionally or knowingly discharges a firearm on or across a public road.”[i]  Discharging “a firearm on or across a public road” is a Class C misdemeanor[ii]; however, discharging “a firearm in a public place other than a public road” is a Class B misdemeanor.[iii]
 
Regarding the discharge of a firearm from, or at a motor vehicle:
 
A person commits an offense [of Aggravated Assault] if the person commits assault as defined in Sec. 22.01 and the person: (1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.[iv]
 
An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if: the actor is in a motor vehicle, as defined by Section 501.002, Transportation Code, and: knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle; is reckless as to whether the habitation, building, or vehicle is occupied; and in discharging the firearm, causes serious bodily injury to any person.[v]
 
Felonies in the second degree are punishable “by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years” and by a fine not to exceed $10,000.[vi]
 
Felonies in the first degree are punishable “by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years” and a fine not to exceed $10,000.[vii]
 
In our hypothetical situation it appears our Armed Defender would appear to have some exposure with regard to the Texas law that proscribes discharging “a firearm on or across a public road,” a misdemeanor.[viii]
 
Additionally, if our Armed Defender was even mildly successful in terminating the felonious aggression that was being committed by the assailant, it is likely that our Armed Defender would also have some exposure under the statute which criminalizes Aggravated Assault,[ix] a second-degree felony.[x]
 
If our Armed Defender discharged his firearm from a motor vehicle and was successful in neutralizing the threat by inflicting “serious bodily injury” on the assailant, our Armed Defender would seem to have a very good argument that our Armed Defender did not commit a felony in the first degree, as our Armed Defender’s actions were not “reckless.”  Indeed, our Armed Defender intended to – and did -- stop the deadly threat posed by the assailant, which by definition, is not reckless conduct.
 
However, if our Armed Defender, while shooting from a motor vehicle, inadvertently injured or killed a hostage or other innocent person, our Armed Defender’s conduct might be deemed “reckless” and thereby expose our Armed Defender criminal liability for a first-degree felony.
 
That’s the bad news.  The good news is that although our Armed Defender may be exposed to criminal liability, our Armed Defender may also be able to take advantage of one or more affirmative defenses.
 
An “affirmative defense” is defined as “[i]n pleading, matter asserted by defendant which, assuming the complaint to be true, constitutes a defense to it.”[xi]
 
This author, some years ago, attempted to elucidate for a misinformed instructor who taught the statutorily-required course for applicants who were seeking a Texas concealed handgun license, that an “affirmative defense” is not a statement by a criminal defendant that the defendant did not engage in conduct that might constitute a crime; rather, an affirmative defense is an admission that the defendant did, in fact, engage in such conduct, but that the defendant was legally justified in doing so.
 
This explanation of an affirmative defense might sound like a lot of legal “mumbo jumbo,” but it is, nevertheless, quite important.
 
The typical criminal defendant goes to court and pleads “not guilty,” and, thereby, compels the government to attempt to prove, beyond a reasonable doubt, that the defendant committed each and every element of the charged offense.  The defendant need not say anything in his defense and, indeed, the government may not compel him to say anything.
 
A defendant who asserts an affirmative defense, on the other hand, admits that he committed the acts that constitute the charged offense, but then asserts that he was legally justified in committing those acts.
 
Thus, once a defendant asserts an affirmative defense, the focus of the criminal case is no longer on whether the defendant committed the acts that constitute the offense.  The focus is now on whether, given that the defendant did commit the acts in question, whether the defendant’s conduct was legally justified.
 
Texas, in the context of the hypothetical situation faced by our Armed Defender, recognizes and has codified, among others, the affirmative defenses of necessity and self-defense.
 
Consistent with our foregoing definition of an affirmative defense, Texas law provides that “It is a defense to prosecution that the conduct in question is justified. . . .”[xii]
 
“Justification,” for the purposes of our Armed Defender, could be established by a showing that the acts in question constitute self-defense or were otherwise necessary.
 
Regarding the affirmative defense of self-defense, Texas law states that:
 
. . . a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.  The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor [acted reasonably, within certain statutory parameters that are consistent with well-settled principles of self-defense law]. . . .[xiii]
 
A person is justified in using deadly force against another if the actor would be justified in using force against the other under Section 9.31; and when and to the degree the actor reasonably believes the deadly 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.[xiv]
 
In setting forth the affirmative defense of necessity, Texas law states that:
 
Conduct is justified if the actor 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.[xv]
 
The law of self-defense can be complicated.  The foregoing summary merely “scratches the surface” of the subject and is not intended as legal advice.

This article also appeared in a February 2020 newsletter published by the Armed Citizens Legal Defense Network

[i] Texas Penal Code § 42.01(a)(9).
[ii] An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.  Texas Penal Code § 12.23.
[iii] An individual adjudged guilty of a Class B misdemeanor shall be punished by: (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement.  Texas Penal Code § 12.22.
[iv] Texas Penal Code § 22.02(a)(1-2).
[v] Texas Penal Code § 22.02(b)(3).
[vi] Texas Penal Code § 12.33(a-b).
[vii] Texas Penal Code § 12.32(a-b).
[viii] Texas Penal Code § 42.01(a)(9).
[ix] Texas Penal Code § 22.02(a).
[x] Texas Penal Code § 22.02(b).
[xi] Black’s Law Dictionary, 6th edition, p. 60 (1992).
[xii] Texas Penal Code § 9.02.
[xiii] Texas Penal Code § 9.31.
[xiv] Texas Penal Code § 9.32(a)(1-2).
[xv] Texas Penal Code § 9.22.


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Nationwide Firearms Legal Services

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DISCLAIMER

The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship.  The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction.  Do not rely on the information contained in this publication for any purpose.  If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

Lapin Law Group, with its principal office in the Dallas-Forth Worth Metroplex, serves all 254 Texas counties.

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    Author

    Lapin Law Group, a Texas Firearms Law Firm, counsels clients on how to lawfully acquire, keep, carry and use firearms. 

    Lapin Law Group provides Firearm and Second Amendment legal services to Federal Firearms Licensees (FFLs/Firearms Dealers); Shooting Ranges; Firearms Instructors; Law Enforcement and Security Professionals; and Individuals. 


    Lapin Law Group also provides nationwide self-defense litigation consulting services.

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