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Assault Attorney – Assault Lawyer – Assault Defense

In Texas criminal law, Assault covers what the Common Law referred to as both assault (threat of imminent bodily harm) and battery (actual physical contact). Assault requires intentionally, knowingly, or recklessly causing bodily injury to another, or intentionally or knowingly causing physical contact with another when the actor or a reasonable person should believe that the other person would regard the contact as offensive or provocative. These types of assaults would have been covered by the Common Law Definition of Battery. It is a Class A Misdemeanor, if the actor intentionally knowingly or recklessly caused bodily injury to another. It is a Class C Misdemeanor, if it is an offensive or provocative touching.

Assault in Texas, can also be intentionally or knowingly threatening someone with imminent bodily harm. This would have been covered by the Common Law definition of Assault. This type of assault is a Class C Misdemeanor and carries with it a maximum of a $500 fine. However, if the assault is by threat of contact against an elderly person, it becomes a Class A Misdemeanor.

Assault in Texas carries with it a wide variety of enhancements and defenses. In some ways, it can be the most complex of criminal litigation in Texas. The most common form of assault filed in Texas is Class A Assault with Bodily Injury.

Some of the enhancements for Assault in Texas include:

Assault with bodily injury with a family violence enhancement. Even if it remains a misdemeanor a finding of Family Violence can have severe collateral consequences. Family Violence can occur in an assault against heterosexual roommates because the legislature in the Great State of Texas does not want to acknowledge that same sex couples exist. A conviction and affirmative finding of Family Violence when someone already has a prior is an automatic third degree felony. Moreover, any time someone assaults someone and impedes his or her breath, and the court or the jury makes an affirmative finding of Family Violence, it is an automatic third degree felony. We further discuss Family Violence under the Family/Domestic Violence link on our Our Services page.

Deadly Weapon enhancement. This enhancement can affect your ability to get probation as it makes the offense a 3g offense (standard probation is not available but you may be eligible for Deferred Adjudication). In addition, if you are sentenced to prison, you must serve at least ½ of the period of your sentence or 30 years, whichever is shorter, before you are eligible for parole. 3g offenses are different in a lot of ways. Bail on a 3g offense cannot be granted without notice to the state and a formal hearing. After sentencing and while you are awaiting appeal, you are not eligible for bail regardless of the sentence.

Aggravated Assault, which means an assault as earlier defined that causes serious bodily injury or is committed with a deadly weapon. This is an automatic second degree felony and carries with it 2 to 20 years in the Texas Department of corrections. It becomes a first degree felony, 5 years to 99 years or life, in the Texas Department of Corrections, if the assault includes an affirmative Family Violence finding. It can also be a first degree felony if a person acting under the color of his authority commits aggravated assault. Moreover, it is a first degree felony if a person assaults a public servant in the lawful discharge of his or her duties, or as retaliation against a public servant who previously discharged his public duties against him or her. Furthermore, it is a first degree felony, if the assault is in retaliation against a witness. Oddly enough, it is a first degree felony, if the act is committed against a security guard or a person who the actor should reasonably know is a security guard. Finally, it is a first degree felony if a person commits a drive by shooting. This means while driving a car, or as a passenger in a car, the actor knowingly shoots in the direction a building, habitation, or motor vehicle, is reckless about whether the building, habitation, or motor vehicle was occupied, and after shooting causes serious bodily injury to any person.

Some of the Defenses to Assault in Texas include

Consent, which is described in, Texas Penal Code: Offenses Against the Person: Chapter 22 Assaultiive Offenses: Sec. 22.06. Consent is typically used for those involved the series of Jackass movies, UFC fighting, boxing, etc.

Justification as a defense, which is decribed in Texas Penal Code: Title 2: General Principles of Criminal Responsibility: Chapter 9: Justification Excluding Criminal Responsibility: Subchapter A: General Provisions: Sec. 9.02: Justification as a Defense. Justification is pretty wide open. It is a defense if the conduct in question was justified under this chapter.

Confinement as a defense which is described in Texas Penal Code: Title 2: General Principles of Criminal Responsibility: Chapter 9: Justification Excluding Criminal Responsibility: Subchapter A: General Provisions: Sec. 9.03. This statute allows you to use force to confine someone who is either using force against you or threatening you with imminent bodily harm so long as the actor takes reasonable measures to terminate the confinement as soon as he knows he safely can.

Threats as a defense which is describe in Texas Penal Code: Title 2: General Principles of Criminal Responsibility: Chapter 9: Sec. 9.04. Threat of force is justified in defense of an assault by production of a weapon or otherwise so long as the actor's purpose is limited to create an apprehension that the actor will use deadly force if necessary, if the assault continues. In addition, this does not constitute the use of deadly force. I used this defense in a case last year that stemmed from a road rage incident on Christmas Eve. A younger gentleman cut off an older gentlemen in his car in such a way that the older man nearly rear-ended the younger man's car. Horns were honked, and middle fingers were exchanged. The younger gentleman then continued to drive recklessly around the older gentlemen, placing him in imminent fear of bodily injury. At this point, the older gentlemen brandished a weapon, and the dangerous situation ended. The younger gentlemen pressed aggravated assault charges. This explanation for the older man's behavior was presented to the grand jury and the case was "no billed." Meaning, the charges were dropped.

Self-Defense, which is described in Texas Penal Code: Title 2: General Principles of Criminal Responsibility: Chapter 9: Justification Excluding Criminal Responsibility: Subchapter C. Protection of Persons: Sec. 9.31. An actor is justified 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.

It should be noted that self defense is not justified based on verbal provocation alone, to resist arrest or search that the knows is being made by a peace officer, or a person in the peace officer's presence, if the actor consented to the force, and/or if the actor provoked the other's use of unlawful force.

If the actor provoked the other's use of force, he can only use self defense again, if:
A. The actor abandons the encounter, or clearly communicates that his or her intent to abandon the encounter if he or she cannot abandon the encounter safely.
B. The other nevertheless continues or attempts to use unlawful force against the actor.

Deadly Force in Defense of a Person, which is described in Texas Penal Code: Title 2: General Principles of Criminal Responsibility: Chapter 9: Justification Excluding Criminal Responsibility: Subchapter C. Protection of Persons: Sec. 9.32. Deadly Force can be used only in specified circumstances. The actor has believe that 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.

Defense of Third Person, which is described in Texas Penal Code: Title 2: General Principles of Criminal Responsibility: Chapter 9: Justification Excluding Criminal Responsibility: Subchapter C. Protection of Persons: Sec. 9.33. An actor can use the same type of force described in the self defense and deadly force sections described above to defend a third party, if the same circumstances described above exist, and the actor reasonably believes that his or her intervention is immediately necessary to protect the third person.

Protection of Life and Health, which is described in Texas Penal Code: Title 2: General Principles of Criminal Responsibility: Chapter 9: Justification Excluding Criminal Responsibility: Subchapter C. Protection of Persons: Sec. 9.34 allows for the use of non-deadly force to stop someone from committing suicide or causing him or herself imminent bodily harm. Use of deadly force can again be justified if the person you are trying help gets the upper hand and puts you into a position where deadly force would otherwise be reasonable.

Protection of One's Own Property, which is described in Texas Penal Code: Title 2: General Principles of Criminal Responsibility: Chapter 9: Justification Excluding Criminal Responsibility: Subchapter D. Sec. 9.41.

Important Practice Note

Use of one of the above defenses is absolutely imperative in any non-sexual assaultive case. Typically, I like to go into any case, particularly a jury trial, with a plan. Almost every non-sexually assaultive case lends itself to one of the above offenses. Your attorney should go through the checklist in his head and attempt to get one or more of these defenses in front of a jury or at least use it for purposes of negotiation. A colleague of mine recently tried an assault case in which she failed to introduce one of the above defenses to the jury. The case from the prosecution perspective was not particularly strong, but she failed to introduce anything other than her client's testimony that the assault did not go down the way the victim claimed. Jurors routinely get hung up on these defenses. They get confused and do not know whether force was justified, who the instigator was, etc. Fights or assaults of any type are a matter of perspective. Almost every witness you call will have seen and heard it differently. Just remember, this if and when, you are set to go trial on an assault case.

Other Assaultive Crimes That Are Not of a Sexual Nature

Deadly Conduct, which is described in Texas Penal Code: Offenses Against the Person: Chapter 22 Assaultiive Offenses: Sec. 22.05. Deadly Conduct requires either that a person recklessly engages in conduct that places another in imminent danger of serious bodily injury. This is a Class A Misdemeanor. Some counties, such as Williamson County use this version of Deadly Conduct as a plea bargain in DWI cases.

Deadly Conduct becomes a third degree felony if a person knowingly shoots a firearm toward two or more people or toward a building, home, or vehicle and is reckless as to whether the building, home, or vehicle are occupied.

Terroristic Threats, which is described in Texas Penal Code: Offenses Against the Person: Chapter 22 Assaultiive Offenses: Sec. 22.07. Terroristic Threats is a terribly complicated statute. It is a Class B Misdemeanor if a person threatens to commit any offense involving violence to any person or property with intent to:
(1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;
(2) place any person in fear of imminent serious bodily injury. This section can be upgraded to a Class A Misdemeanor if (1) is committed against a member of the person's family or household or otherwise constitutes family violence; or
(2) is committed against a public servant.

Terroristic Threats is usually a Class A Misdemeanor if the threat was made with the intent of preventing or interrupting the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place. This type of Terroristic Threat can be upgraded to a State Jail Felony if the actor causes pecuniary loss of $1,500 or more to the owner of the building, room, place, or conveyance.

Terroristic Threats are third degree felonies if the threat is designed to cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service; place the public or a substantial group of the public in fear of serious bodily injury; or, influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state. Remember this, the next time you decide to call in a bomb threat to your school to avoid having to take a test.

Attorney Biographies

Jason Trumpler graduated in December of 1999 from the University of Texas School of Law. After graduation, Mr. Trumpler worked for the Ventura County, California, District Attorney's Office as a Deputy District Attorney. During his tenure with the Ventura County District Attorney's Office Mr. Trumpler was known for creatively and successfully trying difficult cases. Mr. Trumpler briefly entered the civil arena from 2001 until 2002 before returning to criminal law as a Deputy District Attorney in Orange County, California. During his career as a prosecutor in Orange County, Mr. Trumpler took over 35 jury trials to verdict. Mr. Trumpler also trained law enforcement officers throughout Orange County in investigative techniques, DWI/DUI enforcement, testimony, and report writing. While with the Orange County District Attorney's Office, Mr. Trumpler tried a number of cases with renowned DUI Defense Attorney Myles L. Berman. Mr. Trumpler was eventually recruited by Mr. Berman to run his Orange County Office, which Mr. Trumpler did for over two years.

All said and told Mr. Trumpler has taken over 100 jury trials to verdict. He has evaluated cases as both a prosecutor and criminal defense lawyer and tried cases on both sides successfully. He has an excellent reputation amongst peers, prosecutors, and the bench.

Graham Blake, the Managing Attorney of the Dallas/Forth Worth Office graduated from the University of Texas at Austin with a degree in Economics in 1997. He received his J.D. with honors from the University of Texas School of Law in 2000. Previously he worked at Locke Liddell & Sapp (now known as Locke Lord Bissell & Liddell) where he focused on complex commercial litigation, insurance sales practice, and insurance coverage cases. He is admitted to practice before the Supreme Court of Texas, the United States Court of Appeals for the Fifth Circuit, and the United States District Courts for the Northern and Southern Districts of Texas.

In addition to defending those accused of assaultive offenses, we also handle all types of criminal defense matters, from traffic tickets and low level misdemeanors to serious felonies, including but not limited to:

Driving While Intoxicated ( DWI / DUI )
Boating While Intoxicated (BWI)
Theft
Drugs, Possession or Sales
Drug Crimes Defense Lawyer
Texas Narcotics Possession Criminal Defense Lawyer
Marijuana Defense
Unlawful Weapons
Trafficking Possession with Intent to Deliver
Assault
Driving While License Suspended ( DWLS )
Sexual Offenses
Domestic Violence / Family Violence
Prostitution
Probation Violations
Expunctions / Expungements
Orders of Non-Disclosure

We also handle family law matters including divorce and custody matters.

WE ARE AVAILABLE AT 512-457-5200 TO ASSIST WITH JAIL RELEASE IN TRAVIS COUNTY

Assault under is covered in the Title 5: Offenses Against the Person: Chapter 22 Assaultive Offenses Texas Penal Code and Assault Sec. 22.01. ASSAULT. (a) A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. (b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: (1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if: (A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or (B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth; (3) a person who contracts with government to perform a service in a facility as defined by Section 1.07(a)(14), Penal Code, or Section 51.02(13) or (14), Family Code, or an employee of that person: (A) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or (B) in retaliation for or on account of the person's or employee's performance of a service within the scope of the contract; (4) a person the actor knows is a security officer while the officer is performing a duty as a security officer; or (5) a person the actor knows is emergency services personnel while the person is providing emergency services. (b-1) Notwithstanding Subsection (b)(2), an offense under Subsection (a)(1) is a felony of the second degree if: (1) the offense is committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; (2) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; and (3) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth. (c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that the offense is: (1) a Class A misdemeanor if the offense is committed under Subsection (a)(3) against an elderly individual or disabled individual, as those terms are defined by Section 22.04; or (2) a Class B misdemeanor if the offense is committed by a person who is not a sports participant against a person the actor knows is a sports participant either: (A) while the participant is performing duties or responsibilities in the participant's capacity as a sports participant; or (B) in retaliation for or on account of the participant's performance of a duty or responsibility within the participant's capacity as a sports participant. (d) For purposes of Subsection (b), the actor is presumed to have known the person assaulted was a public servant, a security officer, or emergency services personnel if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer or emergency services personnel. (e) In this section: (1) "Emergency services personnel" includes firefighters, emergency medical services personnel as defined by Section 773.003, Health and Safety Code, and other individuals who, in the course and scope of employment or as a volunteer, provide services for the benefit of the general public during emergency situations. (3) "Security officer" means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code. (4) "Sports participant" means a person who participates in any official capacity with respect to an interscholastic, intercollegiate, or other organized amateur or professional athletic competition and includes an athlete, referee, umpire, linesman, coach, instructor, administrator, or staff member. (f) For the purposes of Subsections (b)(2)(A) and (b-1)(2): (1) a defendant has been previously convicted of an offense listed in those subsections committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendre in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and (2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed in those subsections is a conviction of the offense listed. (g) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or both sections.

Sec. 22.02. AGGRAVATED ASSAULT. (a) A person commits an offense 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. (b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if: (1) the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; (2) regardless of whether the offense is committed under Subsection (a)(1) or (a)(2), the offense is committed: (A) by a public servant acting under color of the servant's office or employment; (B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; (C) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or (D) against a person the actor knows is a security officer while the officer is performing a duty as a security officer; or (3) the actor is in a motor vehicle, as defined by Section 501.002, Transportation Code, and: (A) knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle; (B) is reckless as to whether the habitation, building, or vehicle is occupied; and (C) in discharging the firearm, causes serious bodily injury to any person. (c) The actor is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer. (d) In this section, "security officer" means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.

Sec. 22.05. DEADLY CONDUCT. (a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury. (b) A person commits an offense if he knowingly discharges a firearm at or in the direction of: (1) one or more individuals; or (2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied. (c) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded. (d) For purposes of this section, "building," "habitation," and "vehicle" have the meanings assigned those terms by Section 30.01. (e) An offense under Subsection (a) is a Class A misdemeanor. An offense under Subsection (b) is a felony of the third degree.

Sec. 22.07. TERRORISTIC THREAT. (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: (1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies; (2) place any person in fear of imminent serious bodily injury; (3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place; (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service; (5) place the public or a substantial group of the public in fear of serious bodily injury; or (6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state. (b) An offense under Subsection (a)(1) is a Class B misdemeanor. (c) An offense under Subsection (a)(2) is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the offense: (1) is committed against a member of the person's family or household or otherwise constitutes family violence; or (2) is committed against a public servant. (d) An offense under Subsection (a)(3) is a Class A misdemeanor, unless the actor causes pecuniary loss of $1,500 or more to the owner of the building, room, place, or conveyance, in which event the offense is a state jail felony. (e) An offense under Subsection (a)(4), (a)(5), or (a)(6) is a felony of the third degree. (f) In this section: (1) "Family" has the meaning assigned by Section 71.003, Family Code. (2) "Family violence" has the meaning assigned by Section 71.004, Family Code. (3) "Household" has the meaning assigned by Section 71.005, Family Code. (g) For purposes of Subsection (d), the amount of pecuniary loss is the amount of economic loss suffered by the owner of the building, room, place, or conveyance as a result of the prevention or interruption of the occupation or use of the building, room, place, or conveyance.

Sec. 22.06. CONSENT AS DEFENSE TO ASSAULTIVE CONDUCT. (a) The victim's effective consent or the actor's reasonable belief that the victim consented to the actor's conduct is a defense to prosecution under Section 22.01 (Assault), 22.02 (Aggravated Assault), or 22.05 (Deadly Conduct) if: (1) the conduct did not threaten or inflict serious bodily injury; or (2) the victim knew the conduct was a risk of: (A) his occupation; (B) recognized medical treatment; or (C) a scientific experiment conducted by recognized methods. (b) The defense to prosecution provided by Subsection (a) is not available to a defendant who commits an offense described by Subsection (a) as a condition of the defendant's or the victim's initiation or continued membership in a criminal street gang, as defined by Section 71.01.

PENAL CODE TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY SUBCHAPTER A. GENERAL PROVISIONS

Sec. 9.01. DEFINITIONS. In this chapter: (1) "Custody" has the meaning assigned by Section 38.01. (2) "Escape" has the meaning assigned by Section 38.01. (3) "Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. (4) "Habitation" has the meaning assigned by Section 30.01. (5) "Vehicle" has the meaning assigned by Section 30.01.

Sec. 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to prosecution that the conduct in question is justified under this chapter.

Sec. 9.03. CONFINEMENT AS JUSTIFIABLE FORCE. Confinement is justified when force is justified by this chapter if the actor takes reasonable measures to terminate the confinement as soon as he knows he safely can unless the person confined has been arrested for an offense.

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.

SUBCHAPTER C. PROTECTION OF PERSONS 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; (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. (c) The use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary. (d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34. (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.

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (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.

Sec. 9.33. DEFENSE OF THIRD PERSON. A person is justified in using force or deadly force against another to protect a third person if: (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

Sec. 9.34. PROTECTION OF LIFE OR HEALTH. (a) A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself. (b) A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other's life in an emergency.

SUBCHAPTER D. PROTECTION OF PROPERTY Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property. (b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and: (1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or (2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property: (1) if he would be justified in using force against the other under Section 9.41; and (2) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and: (1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or (2) the actor reasonably believes that: (A) the third person has requested his protection of the land or property; (B) he has a legal duty to protect the third person's land or property; or (C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

Sec. 9.44. USE OF DEVICE TO PROTECT PROPERTY. The justification afforded by Sections 9.41 and 9.43 applies to the use of a device to protect land or tangible, movable property if: (1) the device is not designed to cause, or known by the actor to create a substantial risk of causing, death or serious bodily injury; and (2) use of the device is reasonable under all the circumstances as the actor reasonably believes them to be when he installs the device.

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 42. JUDGMENT AND SENTENCE

Art. 42.12. COMMUNITY SUPERVISION.

Limitation on Judge Ordered Community Supervision

Sec. 3g. (a) The provisions of Section 3 of this article do not apply:
(1) to a defendant adjudged guilty of an offense under:
(A) Section 19.02, Penal Code (Murder);
(B) Section 19.03, Penal Code (Capital murder);
(C) Section 21.11(a)(1), Penal Code (Indecency with a child);
(D) Section 20.04, Penal Code (Aggravated kidnapping);
(E) Section 22.021, Penal Code (Aggravated sexual assault);
(F) Section 29.03, Penal Code (Aggravated robbery);
(G) Chapter 481, Health and Safety Code, for which punishment is increased under: (i) Section 481.140, Health and Safety Code; or
(ii) Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections;
(H) Section 22.011, Penal Code (Sexual assault);
(I) Section 22.04(a)(1), Penal Code (Injury to a child, elderly individual, or disabled individual), if the offense is punishable as a felony of the first degree and the victim of the offense is a child;
(J) Section 43.25, Penal Code (Sexual performance by a child); or
(K) Section 15.03, Penal Code, if the offense is punishable as a felony of the first degree; or
(2) to a defendant when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court. On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment.
(b) If there is an affirmative finding under Subsection (a)(2) in the trial of a felony of the second degree or higher that the deadly weapon used or exhibited was a firearm and the defendant is granted community supervision, the court may order the defendant confined in the Texas Department of Criminal Justice for not less than 60 and not more than 120 days. At any time after the defendant has served 60 days in the custody of the department, the sentencing judge, on his own motion or on motion of the defendant, may order the defendant released to community supervision. The department shall release the defendant to community supervision after he has served 120 days.