One of the most common concerns that clients reach out to us with occurs in situations in which they end up by doing nothing but defending themselves or their loved ones.
While Texans are entitled to the right to protect themselves in an adverse situation, it is important to understand that this should be within reasonable boundaries concerning the use of physical force for self-defense. Once excessive force is used, self-defense is considered an assault and is a matter of different legal repercussions.
Being aware of the difference between an assault and self-defense can make a big impact on a case. In order to address our clients’ questions, in this blog post we clarify the self-defense definition, assault definition, and when does self-defense become an assault.
What is Considered Assault?
Texas Penal Code 9.31. defines assault as “intentionally, knowingly, or recklessly causing bodily injury to another”. While the definition omits it, verbally or physically threatening someone with bodily harm is considered an assault too.
What is Considered Self-Defense?
Self-defense is considered to be a type of assault that is tolerated under specific circumstances.
According to Texas law, the right to self-defense includes the following situations:
- When you are defending yourself or someone else from physical violence. The use of fatal force is generally forbidden, except in cases when a person is under a threat of severe assault, sexual assault, or kidnapping.
- When you are defending yourself at your own home or place of residence. The use of lethal force is only allowed inside of the house, and if the intruder uses physical force or seems as if they are going to commit a burglary or another crime. You are not allowed to use deadly force if a person is on your porch, garden, at the door, or has left your property.
- When you are defending your property or premises other than your home. In this case, the limitations to the use of deadly force are the same as in the case when you are defending yourself or someone else.
When Does Self-Defense Become Assault?
Considering the subtle and vague differences between messy situations such as self-defense and an assault, it is not always easy to tell what situations will one be perceived as another. However, there are two clear scenarios in which self-defense will result in assault charges.
The first scenario is related to the amount of unlawful force that the victim uses to defend themselves. The force should not be stronger than the amount that is required to overcome the threat. In other words, disarming or pinning down a person with a gun or shooting them is recognized as unlawful murder.
The second scenario is concerned with the intentional and reckless nature of sustained damages. Deciding how to defend yourself in a life-threatening situation is a matter of moments, and generally, people are genuinely fighting for their lives without an intent to cause harm in these situations.
However, both scenarios often happen under very complex circumstances that require an expert attorney to clarify them.
Can You Be Arrested For Self-Defense?
The short answer to this question is – yes. However, the punishment depends on the circumstances under which self-defense or an assault happened.
Let’s take a closer look at various charges:
- In case you have recklessly or knowingly caused pain or bodily injuries to the attacker, it will commonly be recognized as a 3rd-degree assault or, in other words, a misdemeanor.
- If a person kicks, punches, causes a serious bodily injury, or uses a deadly weapon, the situation will be classified as a 2nd-degree assault. This is also considered to be a “crime of violence” or a felony.
- In situations in which a person causes a serious physical injury by means of a lethal weapon, they will be charged with 1st-degree assault. Just like the 2nd-degree assault, this is a crime of violence.
In both 1st- and 2nd-degree assaults the physical trauma must be evident. 1st-degree assault commonly results in obligatory incarceration of between 10 and 32 years, while the 2nd-degree assault comes with a prison sentence of between 5 and 16 years.
Call Benjamin Gergen for Free Consultations
The distinction between self-defense and assault sometimes lays in fine nuances, meaning that it takes a trained eye to spot them. As an experienced criminal defense attorney, Benjamin Gergen will not only be able to recognize these subtle differences but also to build a strong case to your benefit.
Reach out today at (512) 614-4412 if you have any questions or are in need of an expert in the field.