TX 36.2 Defense of “Habitation” or “Dwelling”

Texas Criminal Pattern Jury Charges § CPJC 36.2

Texas Criminal Pattern Jury Charges



§ CPJC 36.2 Defense of “Habitation” or “Dwelling”

Before the 1974 revision of the Texas Penal Code, Texas law recognized a defense to prosecution based on defense of one’s home. This was a right to defend the habitation independent of the right of self-defense and the right to defend property. Apparently it was based on article 1224 of the 1925 Penal Code, making homicide justifiable in general against “unlawful and violent attack[s]” other than those covered by specific statutory provisions. This defense did require, in the words of article 1224, that “all other means must be resorted to for the prevention of the injury.” Tex. Penal Code art. 1224 (1925), repealed by Acts 1973, 63d Leg., R.S., ch. 399, § 1 (S.B. 34), eff. Jan. 1, 1974. See Sledge v. State, 507 S.W.2d 726, 728-29 (Tex. Crim. App. 1974) (“[I]t is well settled that a defendant has a right to defend against an unwarranted intrusion of his home, and that when this issue is raised, the trial court should charge on his right to defend against this kind of attack.”).

In Myers v. State, 266 S.W.2d 380 (Tex. Crim. App. 1954), for example, the jury was instructed on self-defense and defense of property. Nevertheless, the instruction was erroneous. The court explained:

[N]owhere in the charge was the jury instructed that in the absence of any apprehension of death or serious bodily injury, appellant had the right to shoot the deceased if in doing so she used no more force than appeared to her to be necessary to prevent his entering her home, and she having resorted to all other reasonable means to prevent such entry against her will.

Myers, 266 S.W.2d at 381.

After the 1974 revision of the Penal Code, there was no longer any statutory basis for an instruction on defense of the habitation or home. Texas courts have agreed that now any defensive instruction must be based on Penal Code section 9.41. See Rogers v. State, 653 S.W.2d 122, 124-25 (Tex. App.–Houston [1st Dist.] 1983, pet. ref’d). See also Molitor v. State, 827 S.W.2d 512, 522 (Tex. App.–Austin 1992), appeal abated, 862 S.W.2d 615 (Tex. Crim. App. 1993) (on death of appellant); Leal v. State, 690 S.W.2d 82, 83 (Tex. App.–Houston [14th Dist.] 1985, pet. ref’d). If deadly force is at issue, section 9.42 is implicated, and it incorporates by reference section 9.41.

Sections 9.41 and 9.42 make no specific reference to or provision for habitations or dwellings. Both statutes refer to protection of either “tangible, movable property” or “land.” Thus any right to defend the habitation under current law must be part of the right to defend “land.”

“Land” is not defined in the Penal Code. In Tarlton v. State, 93 S.W.3d 168, 174 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d), the court addressed the term as used in a criminal offense contained in the Texas Water Code. Since the term is not statutorily defined, it reasoned, the term should be given its “plain meaning.” Tarlton, 93 S.W.3d at 174. “The plain meaning of ‘land’ is ‘the solid part of the surface of the earth.’ ” Tarlton, 93 S.W.3d at 174 (quoting Webster’s Third New International Dictionary 1268 (1993)).

If this plain meaning is applied to “land” as used in sections 9.41 and 9.42, those sections give no protection to the habitation beyond what is given to the land on which the habitation rests. There could be some question whether the sections apply to a habitation that does not rest literally on land, such as an upper-floor apartment.

Criminal trespass, in contrast, applies to one who (under certain circumstances) “enters or remains on or in property” or “enters or remains in a building of another.” Tex. Penal Code § 30.05(a).

The picture is somewhat clouded by the 2007 amendment to section 9.31, creating a presumption in favor of a defendant charged with a crime consisting of force used against another. A major factor in determining whether the presumption applies is whether the defendant knew or had reason to know that the complainant unlawfully and with force had entered, or was attempting to enter, the defendant’s “occupied habitation, vehicle, or place of business or employment.” Tex. Penal Code § 9.31(a)(1)(A).

The precise effect of the section 9.31 presumption is somewhat unclear. Whatever that effect, it is only on defendants’ ability to invoke the right of self-defense. The presumption clearly adds nothing to the right of a person who does not fear for his own safety to use force to prevent entry into his occupied dwelling. As a result, that presumption has no place in a jury instruction on defense of “land,” even if on the facts of the case that land was an occupied habitation.

The Committee concluded that the legislature must have intended the term land as used in sections 9.41 and 9.42 to include the interior of habitations. Thus those sections apply to a defendant who claims he used force to prevent or terminate an unlawful entry into his habitation, whether or not the intruder was on or sought to be on any “solid part of the surface of the earth.” The Committee found no authority, however, for instructing juries in terms that made this apparent legislative intent clear.

The Committee also concluded that the limited terms of section 9.42 made clear a legislative intent to limit the right to use deadly force in this situation. Unlike the case under pre-1974 law, one in possession of his habitation is not entitled to use deadly force to prevent only a simple unlawful entry into that habitation, even if the entry cannot be prevented by nondeadly force.

In many situations, however, an intruder’s actions will trigger the right to use deadly force under section 9.42(2)(A) because the defendant will have grounds to believe the intruder is about to commit one of the enumerated offenses. If an intruder intends to commit even misdemeanor theft (in the daytime), the fact that this requires entry of protected premises will give rise to reason to fear that burglary is involved.

Texas Criminal Pattern Jury Charges Copyright 2018 State Bar Texas

Texas Criminal Pattern Jury Charges § CPJC 36.2