Under the "new" self defense/deadly force statute, does anyone have a duty to retreat - ever?

The duty to retreat was deleted from section (a). However, there's language in sections (c)& (d) that suggests it still exists for those who didn't have a right to be present and/or were engaged in criminal activities.

Likewise, the House Research Organization's bill analysis indicates that the legislative intent was to keep the duty to retreat for those who don't have a right to be present at the location or who are otherwise engaged in criminal activity.

[This message was edited by LSmith on 02-18-11 at .]

I say yeah, there is a duty. It is the converse of the rule that you do not have to retreat if A, B and C. If you do not meet the test for no retreat, then you must retreat. Right?

The inverse seems the logical result - especially given the legislative analysis. But why delete the duty to retreat under section (a)?

Did they mean to delete the duty but to allow you to consider it in determining whether the actor reasonably believed deadly force was necessary?

I thought exactly the opposite. You cannot consider failure to retreat in considering whether deadly force was reasonably necessary. 9.32(d).

Section (d) only prohibits considering failure to retreat if you're not engaging in criminal activity and you have a right to be where you are.

In other words, if your defendant is engaging in criminal activity and/or doesn't have a right to be where he's at, does he have a duty to retreat? Or does the jury just get to consider it in determining the reasonableness of his actions?

aarrrgghh!

Apparently, the CCA granted a PDR on the issue and it's under submission.

Jose Manuel Morales v. State (10-1155).

Guess I'll have to wait and see . . .

I always found it odd that the Legislature's "castle doctrine" may have imposed a duty to retreat upon someone in their own home who does not meet the other two prongs of (c), whereas prior law gave an absolute right to not retreat in one's home.

I guess that's what happens when they don't listen to us.

If you were dealing with a self defense claim right now, how would you charge it?

Unless and until the CCA tells me otherwise, I'm not going to instruct a jury that a defendant has a duty to retreat.

A man is in his front yard, drinking beer and doing cocaine, when a party goer from a bbq across the street begins to loudly blast music from the stereo in his car. The Home Owner exits his property to confront the man in the automobile to get the volume of the music lowered.

The Automobile Owner takes offense to the drunken ramblings of the Home Owner and punches him in the face. Where upon the Home Owner enters his house to retrieve a pistol and stands again in his front yard with the pistol. The Home Owner threatens the Automobile Owner, who now has three friends in attendance. The result of which is that the Automobile Owner and friends enterthe Home Owner's yard and beat him severly.

During the beating, the Home Owner discharges his firearm and kills one of the friends.

Has the Home Owner a legitimate claim of self defense or did he have a duty to retreat?

Self defense doesn't apply if the actor started the confrontation (which it appears he may have in this case, and he certainly escalated it by getting the gun) or if it was unreasonable force compared to the unlawful use of force by the other party (this one's closer; gun vs. handfight, but it was 4-1). My vote is for duty to retreat because he picked the fight; were it not for his actions, they were not otherwise coming on to his property where he would be forced to defend himself or the home.

Another question to ask might be whether he had a CHL. The only reason I ask that is because under TPC 46.035, it is illegal to carry a handgun while intoxicated if you have a CHL (I didn't find a similar provision that was more general, but maybe I overlooked something).