Bustos Law Firm

Standing Your Ground in Texas

In Gun Laws, Self Defense, Texas Law on January 15, 2013 at 9:53 AM


The February 26, 2012 Trayvon Martin shooting by George Zimmerman shined a spotlight on Florida’s stand-your-ground law and other such laws in states around the country. All states have a self-defense justification for otherwise unlawful violence. One of the important points on which the states differ, however, is whether and to what extent the person defending herself has a duty to retreat. States that do not require retreat, where possible—not even outside the home—are referred to as stand-your-ground states. In other words, they allow potential victims to stand their ground against first-aggressor assailants.

The Sanford, Florida tragedy soon became a cause célébre for stand-your-ground opponents in Florida. Such opponents point to other tragedies as evidence of the need to repeal such laws. For example, a highly publicized case involved a semi-conscious drunk Floridian trying to enter what he thought was his own home. The real homeowner was also a gun owner. When the man sobered up, he was in the hospital with a bullet through his chest.

On the other hand, stand-your-ground proponents point to stories like Norman Borden’s. While Borden was being run down by a jeep in West Palm Beach, he emptied his pistol into the windshield and then side door of the pursuing car as it approached and then passed, killing two of the three occupants. The surviving assailant later testified that the trio’s plan had been to rough Mr. Borden up with a baseball bat. Looking to the stand your ground law for guidance, the jury rightly acquitted him.

Fourteen states, including Texas, currently have a stand-your-ground law on the books. Gun owners, however, should be careful to understand what those laws mean. Misunderstanding the scope of these laws can have tragic consequences. For example, Raul Rodriguez, a middle-aged Houston man, thought the law gave him an umbrella of protection after brandishing a firearm at his neighbor’s house to try and quiet a noisy late-night party. When the neighbor, 36-year-old elementary school teacher, allegedly lunged at him, Rodriguez shot him dead and wounded two others. Rodriguez said he was just standing his ground. The jury said otherwise, convicting him of second-degree murder. Rodriguez was sentenced to 40 years in prison.

The Texas statute allowing potential victims to stand their ground states: “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 [in self-defense].” Tex. Penal Code § 9.31(e).

It is difficult to argue that Rodriguez qualified for safe harbor under this section. He approached his victims with a camera, a flashlight and a loaded fire-arm. Most people would see this as an act of provocation.

In order to use deadly force—force capable of causing death or serious injury, such as that used by Rodriguez or any gun owner—subsequent sections of the Texas Penal Code require that the assailant reasonably believe such force is immediately necessary to protect against deadly force, aggravated kidnapping, sexual assault, or robbery. Because Rodriguez’s victims threatened to get a gun, outnumbered him by at least three to one, and showed signs of strong hostility before allegedly lunging at him, Rodriguez’s actions may have not been in conflict with this section of the penal code.

Additionally, other provisions of the penal code provide further restrictions on standing your ground. For example, Texas Penal Code §9.31(b)(5), found in the same section of the penal code as the stand-your-ground provision, states that the use of force is not justified if the shooter sought an explanation from or discussion with the other person concerning the shooter’s difference with the other person while the actor was carrying a firearm without a license and without being in his own home, vehicle, or en route between the two. Thus, if Rodriguez had not held a concealed handgun license, his self-defense argument would have failed under this provision as well.

In conclusion, Raul Rodriguez provides a sobering reminder that gun owners should be extremely careful about the meaning of the stand-your-ground laws. Texas’s stand-your-ground law may be a license to protect oneself against first-aggressor assailants, but it certainly is not a carte-blanche to pick a fight only to shuck smoke wagons and throw lead when an adversary becomes violent.

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