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My AccountChapter 9
- 9.1 Necessity Generally—Need to “Admit” Offense
- 9.2 Instruction—Necessity
- 9.3 Self-Defense Generally
- 9.4 Pre-1974 Penal Code Self-Defense Law and Jury Instructions
- 9.5 Role of “Provocation” in Self-Defense Instructions
- 9.6 Statutory Presumption
- 9.7 Retreat
- 9.8 Converse Instructions on Self-Defense
- 9.9 Multiple-Assailants Instruction Generally
- 9.10 Instruction—Nondeadly Force in Self-Defense
- 9.11 Nondeadly Force in Self-Defense with Consent Issue
- 9.12 Instruction—Nondeadly Force and Consent Issue
- 9.13 Nondeadly Force in Self-Defense with “Provoking the Difficulty” Issue
- 9.14 When Instruction on “Provoking the Difficulty” Is Proper
- 9.15 Defining Provocation
- 9.16 Abandonment of Provoking Attack
- 9.17 “Right to Arm” and “Provoking the Difficulty”
- 9.18 Defendant’s Verbal Provocation as Insufficient Justification
- 9.19 Instruction—Nondeadly Force and “Provoking the Difficulty” Issue
- 9.20 Instruction—Nondeadly Force—Defendant Arming Himself
- 9.21 Instruction—Threat of Deadly Force in Self-Defense
- 9.22 Deadly Force in Self-Defense Generally
- 9.23 Instruction—Self-Defense Involving Deadly Force to Protect against Deadly Force by Another
- 9.24 Instruction—Self-Defense Involving Deadly Force
- 9.25 Instruction—Self-Defense Involving Deadly Force—Defendant Arming Himself
- 9.26 Deadly Force to Prevent Felony Generally
- 9.27 Instruction—Deadly Force to Prevent Felony
- 9.28 Instruction—Deadly Force to Prevent Felony—Alternative Approach
- 9.29 Self-Defense against Action by Peace Officer Generally
- 9.30 Instruction—Self-Defense against Action by Peace Officer—No Allegation of Excessive Force
- 9.31 Instruction—Self-Defense against Action by Peace Officer—Allegation of Excessive Force
- 9.32 Defense of Others Generally
- 9.33 Instruction—Nondeadly Force in Defense of Another
- 9.34 Defense of Property Generally
- 9.35 Defense of “Habitation” or “Dwelling”
- 9.36 Nondeadly Force in Defense of One’s Own Personal Property—Property in One’s Possession and Recovering Property
- 9.37 Instruction—Nondeadly Force in Defense of One’s Own Personal Property—Preventing Interference with Property in One’s Possession
- 9.38 Instruction—Nondeadly Force in Defense of One’s Own Personal Property—Recovering Property
- 9.39 Nondeadly Force in Defense of Land Generally
- 9.40 Instruction—Nondeadly Force in Defense of Land
- 9.41 Instruction—Deadly Force in Defense of One’s Own Personal Property
- 9.42 Deadly Force in Defense of Land Generally
- 9.43 Instruction—Deadly Force in Defense of Land
- 9.44 Instruction—Nondeadly Force in Defense of Third Person’s Personal Property
- 9.45 Reasonable Discipline Defense Generally
- 9.46 Instruction—Reasonable Discipline Defense
- 9.47 Educator-Student Defense Generally
- 9.48 Instruction—Educator-Student Defense
- 9.49 Guardian-Incompetent Defense Generally
- 9.50 Instruction—Guardian-Incompetent Defense
Comment
Under Texas Penal Code section 9.41(a), the right to defend “one’s own” land is a right to defend it against another’s “trespass.” Trespass is not defined in the Penal Code, except insofar as it might incorporate “criminal trespass” as defined in section 30.05.
Given that section 9.41 does not use the term criminal trespass, it may be intended to mean trespass as it is defined for civil law purposes:
Trespass to real property occurs when a person enters another’s land without consent. . . . Concerning the intent element of the tort, . . . the only relevant intent is that of the actor to enter the property. The actor’s subjective intent or awareness of the property’s ownership is irrelevant. [S]ee, e.g., McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex. Civ. App.—Beaumont 1934, writ ref’d) (holding that “every unauthorized entry upon land of another is a trespass” even if no damage is done and “the intent or motive prompting the trespass is immaterial”).
Wilen v. Falkenstein, 191 S.W.3d 791, 797–98 (Tex. App.—Fort Worth 2006, pet. denied) (some citations omitted).
“Land” is not defined. “The plain meaning of ‘land’ is ‘the solid part of the surface of the earth.’ ” Tarlton v. State, 93 S.W.3d 168, 174 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (quoting Webster’s Third New International Dictionary 1268 (1993)). Nevertheless, Texas courts have assumed—without careful consideration—that section 9.41(a) creates a right to defend the habitation. E.g., Rogers v. State, 653 S.W.2d 122, 124 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d) (“[T]he right to a charge on defense of habitation is governed by Penal Code § 9.41 and § 9.42.”). A defendant charged with assault was entitled to this instruction when evidence showed that he asked the complainant, a guest in his apartment, to leave, and when she refused, he pushed her out of the door. Manzke v. State, No. 05-02-00356-CR, 2003 WL 1870560, at *2 (Tex. App.—Dallas Apr. 14, 2003, no pet.) (not designated for publication).