Deadly Force discussion; Part 2 TPC 9.02
Posted: Sun Apr 09, 2006 12:08 pm
I think this is the most misunderstood section dealing with Use of Force in Texas.
9.02 sets out how use of force justification is applied in Texas.
§9.02. Justification as a defense.
It is a defense to prosecution that the conduct in question is
justified under this chapter.
The "conduct in question" refers to the use of fore that one would apply to protect oneself. For instance, if I walk up and without any prior provication I strike Bob in the face, that is an assault. It is assault because it meets the definition of the assault statute.
If; however, Bob first grabs my shirt, pulls his fist back and states thru clenched teeth and a tightned jaw, "I am going to kick your tail (edited for 10 year-olds), and I am able to first strike Bob in a the face and break away............ my striking Bob in the face is STILL an assault.
What we want to know if that assault was justified under the law. The "conduct in question" in that scenario is my striking Bob. We want to know if that was justified. I am not going to get into that here.
As we all know, at a trial for striking Bob, the prosecution must prove, beyond a reasonable doubt, that I committed an assault. Lets see, his blood is on my palm, he has a bloody nose.....pretty easy.
I then have to prove, beyond a reasonable doubt, that "the conduct in question", in this case striking Bob in the nose, was justified under chapter 9. We will explore that later.
Lets look at the definition of "a defense to prosecution"
§2.03. Defense.
(a) A defense to prosecution for an offense in this code is
so labeled by the phrase: "It is a defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the
existence of a defense in the accusation charging commission of the
offense.
(c) The issue of the existence of a defense is not submitted
to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted
to the jury, the court shall charge that a reasonable doubt on the
issue requires that the defendant be acquitted.
It is a Defense TO Prosecution, not a Defense FROM Prosecution. You must prove, beyond reasonable doubt, that your conduct or use of force was justified.
If a person dies from my use of deadly force (called a homicide), a Grand Jury is going to hear the case. This could happen with or without my being arrested or charged with the homicide.
In any case of use of force, you CAN be arrested and charged with the assault. Ultimately, a jury or Grand Jury will determine if your "conduct in question" was "justified under chapter 9". Sometimes, if it is CLEAR that the use of force was justified no criminal action is taken against the person.
It is important to remember; though, that criminal action CAN be taken, and it will be up the the individual to prove justifcation.
Bottom line, if you use deadly force the best case scenario is a referral t the Grand Jury and a No-Bill. Worst case is you get arrested at the scene, charged, indicted and convicted.
I certainly would not allow my use of deadly force case go to the grand jury without hiring an attorney. Perhaps Charles can shed some light on the cost to me to hire him to defend me just to the Gramd Jury.
Considering the possible criminal liability, wouln't you agree that Deadly Force should be used as a LAST RESORT?
9.02 sets out how use of force justification is applied in Texas.
§9.02. Justification as a defense.
It is a defense to prosecution that the conduct in question is
justified under this chapter.
The "conduct in question" refers to the use of fore that one would apply to protect oneself. For instance, if I walk up and without any prior provication I strike Bob in the face, that is an assault. It is assault because it meets the definition of the assault statute.
If; however, Bob first grabs my shirt, pulls his fist back and states thru clenched teeth and a tightned jaw, "I am going to kick your tail (edited for 10 year-olds), and I am able to first strike Bob in a the face and break away............ my striking Bob in the face is STILL an assault.
What we want to know if that assault was justified under the law. The "conduct in question" in that scenario is my striking Bob. We want to know if that was justified. I am not going to get into that here.
As we all know, at a trial for striking Bob, the prosecution must prove, beyond a reasonable doubt, that I committed an assault. Lets see, his blood is on my palm, he has a bloody nose.....pretty easy.
I then have to prove, beyond a reasonable doubt, that "the conduct in question", in this case striking Bob in the nose, was justified under chapter 9. We will explore that later.
Lets look at the definition of "a defense to prosecution"
§2.03. Defense.
(a) A defense to prosecution for an offense in this code is
so labeled by the phrase: "It is a defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the
existence of a defense in the accusation charging commission of the
offense.
(c) The issue of the existence of a defense is not submitted
to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted
to the jury, the court shall charge that a reasonable doubt on the
issue requires that the defendant be acquitted.
It is a Defense TO Prosecution, not a Defense FROM Prosecution. You must prove, beyond reasonable doubt, that your conduct or use of force was justified.
If a person dies from my use of deadly force (called a homicide), a Grand Jury is going to hear the case. This could happen with or without my being arrested or charged with the homicide.
In any case of use of force, you CAN be arrested and charged with the assault. Ultimately, a jury or Grand Jury will determine if your "conduct in question" was "justified under chapter 9". Sometimes, if it is CLEAR that the use of force was justified no criminal action is taken against the person.
It is important to remember; though, that criminal action CAN be taken, and it will be up the the individual to prove justifcation.
Bottom line, if you use deadly force the best case scenario is a referral t the Grand Jury and a No-Bill. Worst case is you get arrested at the scene, charged, indicted and convicted.
I certainly would not allow my use of deadly force case go to the grand jury without hiring an attorney. Perhaps Charles can shed some light on the cost to me to hire him to defend me just to the Gramd Jury.
Considering the possible criminal liability, wouln't you agree that Deadly Force should be used as a LAST RESORT?
