TPC 9.31 Self Defense

[locke_n_load]

So I have been going through the code lately, and I had a question about the use of force. Here is the relevant section of code:

Sec. 9.31. SELF-DEFENSE. (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;

Now the beginning (section a) makes a general statement about the use of force against those unlawfully using force against you, then states it's presumed to be reasonable if you can check one of the subsections below that. So, if you are in public, you are assumed to be reasonable if they are or are attempting to commit one of the actions in subsection (C). So my question, are all other scenarios assumed to be not reasonable? Really I'm asking just about regular old assault. It is not listed under any of the subsections listed, but if someone punches me over an argument that they started, and I don't believe they intend to murder me, the code would make it sound like to fight back would be unreasonable and not protected by code because it is not specifically listed under this section. Any help is appreciated, thanks.

[Charles L. Cotton]

The presumption applies, or it does not. The lack of a presumption does not mean there is a presumption against reasonableness. Absent the presumption, the actor must show he/she had a 1) reasonable belief; 2) that force ( or deadly force) was immediately necessary: 3) to prevent another person's use or attempted use of unlawful force (or deadly force).

Chas.

[locke_n_load]

That's what I thought, but just wanted some confirmation. Thanks Charles.

[C-dub]

The presumption applies, or it does not. The lack of a presumption does not mean there is a presumption against reasonableness. Absent the presumption, the actor must show he/she had a 1) reasonable belief; 2) that force ( or deadly force) was immediately necessary: 3) to prevent another person's use or attempted use of unlawful force (or deadly force).

Chas.

Does the same rationale apply to the threat to use deadly force to get the attacker to stop? Say, uncovering a concealed handgun?

[The Annoyed Man]

Y'all need to sign up for Charles's next "use of force and deadly force in Texas" seminar.

[C-dub]

Y'all need to sign up for Charles's next "use of force and deadly force in Texas" seminar.

It's a great experience. I did it once when he came to Cabela's several years ago. Can't remember everything, so that's one reason why I really appreciate this forum.

[locke_n_load]

The presumption applies, or it does not. The lack of a presumption does not mean there is a presumption against reasonableness. Absent the presumption, the actor must show he/she had a 1) reasonable belief; 2) that force ( or deadly force) was immediately necessary: 3) to prevent another person's use or attempted use of unlawful force (or deadly force).

Chas.

Does the same rationale apply to the threat to use deadly force to get the attacker to stop? Say, uncovering a concealed handgun?

From chapter 46:

(h) It is a defense to prosecution under Subsection (a) or (a-1) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of force or deadly force under Chapter 9.

From chapter 9:

Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

[locke_n_load]

Y'all need to sign up for Charles's next "use of force and deadly force in Texas" seminar.

Indeed.
I'm actually a new LTC instructor, and I know that the questions I ask here are deeper than I will be going into during my classes (getting into intrepretation of the law, which is a no-no), but I would still like to know for my own knowledge.

[Charles L. Cotton]

The presumption applies, or it does not. The lack of a presumption does not mean there is a presumption against reasonableness. Absent the presumption, the actor must show he/she had a 1) reasonable belief; 2) that force ( or deadly force) was immediately necessary: 3) to prevent another person's use or attempted use of unlawful force (or deadly force).

Chas.

Does the same rationale apply to the threat to use deadly force to get the attacker to stop? Say, uncovering a concealed handgun?

Yes, but there are some nuances that apply to TPC §9.04. Remember, TPC §9.04 addresses threats "as force," not threats "of force." That's a subtle but important distinction. Remember also the TPC §9.04 expressly states that conduct coming within its scope does not constitute the use of deadly force."

I wish I could go into detail, but that's way too long for a post.

Chas.

[C-dub]

From chapter 9:

Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

I didn't remember the section, but this is what I was thinking about.

[thetexan]

Any use of deadly force and most uses of simple force must meet the "reasonableness" test. For the use of deadly force to be lawful you must REASONABLY believe that there it is IMMEDIATELY NECESSARY to avoid serious bodily injury or death. Where ever reasonableness is the test then that reasonableness is in question, and if tried that reasonableness issue will have to be dealt with.

Under certain situations as listed in the 9.xx paragraphs, your belief as being reasonable will be presumptively imputed to you at trial and you will not have to further defend that reasonable belief.

This is the very reason that one should not carry past a legitimately and compliantly posted 30.06/30.07 sign with a gun. Should you have to shoot someone while in that mall (say) in self-defense you will have done so while in the commission of a criminal trespass; a disqualifier for the statutory imputation of presumed reasonableness. At trial, if you go to trial, your belief will not be statutorily PRESUMED reasonable and you will have to defend your belief as being reasonable. The distinction of reasonable or not reasonable may mean the difference between being acquitted and 20 years for manslaughter.

tex

[Ameer]

This is the very reason that one should not carry past a legitimately and compliantly posted 30.06/30.07 sign with a gun. Should you have to shoot someone while in that mall (say) in self-defense you will have done so while in the commission of a criminal trespass; a disqualifier for the statutory imputation of presumed reasonableness. At trial, if you go to trial, your belief will not be statutorily PRESUMED reasonable and you will have to defend your belief as being reasonable. The distinction of reasonable or not reasonable may mean the difference between being acquitted and 20 years for manslaughter.

This is not the first time you brought up this scenario. Surely you can cite an actual case where this made a difference?

[locke_n_load]

Any use of deadly force and most uses of simple force must meet the "reasonableness" test. For the use of deadly force to be lawful you must REASONABLY believe that there it is IMMEDIATELY NECESSARY to avoid serious bodily injury or death. Where ever reasonableness is the test then that reasonableness is in question, and if tried that reasonableness issue will have to be dealt with.

Under certain situations as listed in the 9.xx paragraphs, your belief as being reasonable will be presumptively imputed to you at trial and you will not have to further defend that reasonable belief.

This is the very reason that one should not carry past a legitimately and compliantly posted 30.06/30.07 sign with a gun. Should you have to shoot someone while in that mall (say) in self-defense you will have done so while in the commission of a criminal trespass; a disqualifier for the statutory imputation of presumed reasonableness. At trial, if you go to trial, your belief will not be statutorily PRESUMED reasonable and you will have to defend your belief as being reasonable. The distinction of reasonable or not reasonable may mean the difference between being acquitted and 20 years for manslaughter.

tex

If I'm drawing and I managed to be in 30.06/7 location, it's going to be to protect life of myself or a family member, and at that time, I would keep my life or family member for 20 years in jail. 20 years in jail beats being dead.

[thetexan]

This is the very reason that one should not carry past a legitimately and compliantly posted 30.06/30.07 sign with a gun. Should you have to shoot someone while in that mall (say) in self-defense you will have done so while in the commission of a criminal trespass; a disqualifier for the statutory imputation of presumed reasonableness. At trial, if you go to trial, your belief will not be statutorily PRESUMED reasonable and you will have to defend your belief as being reasonable. The distinction of reasonable or not reasonable may mean the difference between being acquitted and 20 years for manslaughter.

This is not the first time you brought up this scenario. Surely you can cite an actual case where this made a difference?

Seriously?

No I can't. Are you suggesting the statute does not say what it says?

If you are past a 30.06 or 30.07 sign with a gun you ARE in a state of Class C criminal trespass. If you use deadly force under those conditions your belief of immediate necessity WILL NOT be presumed reasonable. This is not to say that it isn't reasonable. It is to say that it will not be PRESUMED to be reasonable and that element of the offense will have to be adjudicated.

No case needed. That is the clear reading of the rule. If you find yourself needing to defend yourself in a location where you are prohibited from being...if you find yourself having to defend yourself at a location where you you are criminally present...you may be alive in the end...but you risk having several years in prison to think about it if you can not convince a jury of your reasonable belief; a task you might not have had to undertake had your belief been presumed reasonable by imputation had you not been in a situation where you were not criminally trespassing and not disqualified by some other violated element.

Im in complete agreement that I will defend myself and my family even if I am past a sign. But I will be held accountable for all elements of the statutes I violate and suffer loss of legal gifts I might otherwise be entitled to.

tex

[Charles L. Cotton]

This is the very reason that one should not carry past a legitimately and compliantly posted 30.06/30.07 sign with a gun. Should you have to shoot someone while in that mall (say) in self-defense you will have done so while in the commission of a criminal trespass; a disqualifier for the statutory imputation of presumed reasonableness. At trial, if you go to trial, your belief will not be statutorily PRESUMED reasonable and you will have to defend your belief as being reasonable. The distinction of reasonable or not reasonable may mean the difference between being acquitted and 20 years for manslaughter.

This is not the first time you brought up this scenario. Surely you can cite an actual case where this made a difference?

You seem to feel that the presumptions in TPC §9.31 and 9.32 are not subject to the express wording of the statute. The lack of a case of an LTC violating TPC §30.06 then having to use deadly force does not change the express language in the statute. I don't know of a single case with this fact pattern; do you?

I'm not saying that losing the presumption means you cannot lawfully use deadly force in self-defense. You just don't have the presumption. Outside your home, you may also have a duty to retreat, but that's another subject.

Chas.