Texas-Book-Gun Law Armed And Educated - Flipbook - Page 142
PRACTICAL LEGAL TIP
A defense to prosecution is not the
same as a bar to prosecution. A bar
to prosecution is where a person
can’t be prosecuted for engaging in
certain conduct, whereas a defense
to prosecution allows prosecution for
the conduct, but offers defendants a
justification that must be demonstrated
with evidence in court. —Kirk
B. Basic requirement: confession and avoidance
If a person wants the potential protection of legal justification in
Texas, in order to raise the defense the law requires them to admit
(or at a minimum, not deny) the charged conduct. See Bowen v. State,
162 S.W.3d 398 (Tex. Crim. App. 2005). Then, the person must
present “some evidence” of justification before a jury will be given an
instruction that “a person is legally justified to use force if…” In plain
English, a person will not be allowed to say, “I didn’t do it, but if I did
do it, I was justified!” You must admit the underlying conduct of the
charge. See Young v. State, 991 S.W.2d 835 (Tex. Crim. App. 1999).
EXAMPLE:
Melissa is out with her boyfriend, Thomas, in the parking lot of
a restaurant. Thomas is attacked from behind by a masked
perpetrator. Melissa retrieves her pocket knife and stabs the
masked man in the back. Melissa is charged with aggravated
assault with a deadly weapon.
Because justification is a legal defense in Texas, if Melissa’s case
goes all the way to trial, in order to offer a legal justification for
committing aggravated assault, she must admit in court that she
When Can I Legally Use My Gun: Part I | 131
