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Legal Defenses to an Assault Charge in Texas

How can a lawyer defend you against a criminal charge of Assault in Texas?

Texas law defines Assault broadly, and it can be anything from a threat of harm to something that causes serious bodily harm. Learn more about Assault law in Texas

If you have been charged with Assault, you need to know that there are many ways in which you can defend against a conviction. We analyze some of these defenses below.

No matter what the situation, it is crucial that you discuss your individual case with a criminal defense attorney–every case is different and requires a deep factual and legal analysis by a lawyer to craft your best defense. Please contact us to schedule a consultation.

Criminal Responsibility, generally

There are several ways your criminal responsibility is limited under Texas law. The defenses listed in Chapter 8 of the Penal Code apply to all forms of criminal responsibility, however–not just assault. Those listed are Insanity, Mistake of Fact, Mistake of Law, Intoxication, Duress, Entrapment, Age, and Child with Mental Illness (disability or lack of capacity).

There are numerous limitations on each of these, and I will not attempt to address these limitations in this article. Instead, I want to focus on a few defenses that are specialized in assault law in Texas.

Self Defense

The self-defense statute in Texas is Section 9.31 of the Texas Penal Code. Self-defense is in Section 9 of the Texas Penal code because it is considered a “Justification” as opposed to a “defense” under the penal code. There are important distinctions between defenses and justifications in Texas criminal law. You can read Section 9 of the Texas Penal Code in full here.

Under Texas law, it is a defense to prosecution that the conduct is justified under Chapter 9 of the Texas Penal Code. Subchapter C, “Protection of Persons” discusses self-defense.Whenever you are interpreting criminal law in Texas, it is important to start with the statute. So let’s start there and first take a look at the self-defense statute. The statute reads:

(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.

The important limitations specified by the Texas state legislature in Subsection (b) are the following:

(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.

The Fifth District Court of Appeals in Dallas, Texas, recently handed down law regarding the procedural requirements for using justification as a defense.

The Justification Defense

In Newman v. Texas, the Fifth District Court of Appeals heard an appeal from Michael Dewayne Newman based on the fact that the trial court refused to instruct the jury on the justification of “defense of property.”

The appellant thought that someone was attempting to burglarize his apartment. He confronted the individual, and during the confrontation, the appellant saw another person on the balcony of his apartment. Apparently the appellant recognized this person on the balcony as a friend of the neighbor that he was already engaging with. The appellant thought that they might be working together to steal from him, so he reacting by shooting a gun in the direction of the person on the balcony. However, during trial, the appellant denied all of these facts.

The Fifth District Court examined the case to determine whether the justification defense should have been available to the appellant under those circumstances. The court of appeals wrote that a justification defense “does not negate any element of the offense, including the culpable intent; it only excuses what would otherwise constitute criminal conduct.”

This has the effect of placing a defendant who feels he or she was justified in using force in the unfortunate situation of having to admit to the underlying criminal act. This is a tricky defense strategy, and if you are facing such a situation, you should be careful in attempting it. Please speak directly with your criminal defense attorney about this.

Unfortunately for the appellant, Newman, the court of appeals ruled that his conduct could not be excused through the use of a justification defense and at the same time claim that he did not commit the crime.