Homicide Defense in Texas

Homicide – the intentional taking of the life of another – is prohibited by laws in all states. Texas law penalizes four (4) main types of homicide:

  1. Murder
  2. Capital Murder
  3. Manslaughter
  4. Criminally Negligent Homicide

The precise punishment a particular criminal defendant will face depends on the circumstances under which the death occurred. In general, the more deliberate and heinous the killing was, the more severe the punishment.


A defendant commits a murder if another person is killed and:

  • The defendant intentionally or knowingly killed the individual;
  • The defendant intended to cause serious bodily injury and committed a clearly dangerous act that resulted in the death of an individual; or
  • Commits or attempts to commit a felony (other than manslaughter) and, while committing or while attempting to commit or fleeing from the commission of that felony commits a dangerous act that kills the individual. This is known as the “felony-murder” rule and this rule can apply, for example, where the defendant robbed a store and then struck and killed a pedestrian while speeding away from the scene of the crime.

Murder is punishable by 5 to 99 years in prison, or life imprisonment.

Capital Murder

A capital murder occurs when a killing occurs under certain narrow conditions:

  • When the defendant kills a peace officer or fireman who was acting in the lawful discharge of an official duty and the defendant knew the person to be a peace officer or fireman;
  • When the murder occurs during the course of committing or attempting to commit a kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat;
  • When the murder is committed as a “murder-for-hire”;
  • When more than one person is murdered, either as part of the same criminal act or pursuant to a scheme of conduct or plan; or
  • When the defendant murders a child under six years of age.

The main difference between murder and capital murder pertains to the permissible punishment. A defendant convicted of capital murder may be punished by either imprisonment for life, or the defendant can be put to death.


Manslaughter occurs when the defendant kills another “recklessly.” “Recklessness” exists where there is a substantial and unjustifiable risk that a death will occur. The defendant must be aware of this risk but disregards the risk. The defendant’s act must represent a gross deviation from the standard of care an ordinary person would have exercised under the circumstances. For example, shooting a loaded gun at the direction of a crowd (but not aiming at anyone in particular or aiming above the crowd) could be prosecuted as manslaughter. Courts will examine what a “reasonable person” acting in the defendant’s situation would have known and understood.

Manslaughter is punishable by between 2 and 20 years in prison.

Criminally Negligent Homicide

Criminally negligent homicide occurs where the defendant kills another as a result of “criminal negligence.” “Criminal negligence” exists where the defendant is not aware of a substantial and unjustifiable risk of harm but, under the circumstances, should have been aware of the risk.

Two friends “playing guns” by aiming and pulling the triggers of guns the defendant believes are unloaded are likely engaging in criminal negligence. If the defendant’s gun is actually loaded and the other friend dies, the defendant may be prosecuted for criminally negligent homicide. Again, the court will examine what a “reasonable person” in the defendant’s situation would have understood and been aware of.

Criminally negligent homicide can be punished by a state jail term of between 180 days and 2 years.

Defenses to Homicide Charges

Defendants charged with homicide offenses may be justified in killing another person if they acted in self defenseor in defense of another person. Generally speaking, a person has the right to use force against an aggressor who is attacking the person, is committing or is threatening to commit certain crimes against the person, or who enters the residence of the person.

There are important limitations to this right to self-defense:

  • The person must not be the aggressor in the confrontation. In other words, Person A cannot attack Person B and then claim self-defense when he kills Person B when Person B responds with violence (unless Person B responds with deadly force);
  • The person cannot claim self-defense where the other person only engaged in verbal provocation. This means a defendant cannot punch or batter a person who simply hurls insults at the person.
  • The force used must be proportionate and reasonable under the circumstances. A person is not entitled to claim self-defense if he or she stabs an attacker multiple times with a knife when the other person simply punched the person.
  • Deadly force is only authorized when deadly force is threatened against the person, when used to prevent the imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery, or when used against a person who unlawfully and with force enters your home, your vehicle, or your place of work.

The defendant must have a reasonable belief that the use of force – as well as the particular level of force used – is warranted and justified under the circumstances. This is judged on an objective level. If a reasonable person in the same situation would not have felt imminently threatened, or that the use of deadly force  was called for (for instance), then the defendant may not escape criminal liability by claiming self-defense. It is immaterial what the defendant actually believed.

A defendant is also justified in using deadly force when used in defense of a third person when:

  • The defendant reasonably believes the third person would be justified in using self-defense; and
  • The defendant reasonably believes his or her immediate intervention is needed to protect the third person.

Again, the reasonableness of the defendant’s actions will be judged on an “objective, reasonable person” standard. If the defendant’s beliefs would not have been adopted by a reasonable person in the same circumstances, then this defense will not justify a homicide – regardless of the subjective beliefs of the defendant.

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