Justified Homicide: Deadly Force and Self Defense


In March 2012, Robert Wayne Bain came home to find his wife packing her belongings at their home in the 1200 block of E 25th St. The two had been having marital problems, and when Bain went into the bathroom of the residence, he was met by a fully-clothed man, Steve Gutierrez, standing in the shower. Gutierrez then allegedly lunged at Bain, who drew a firearm and fatally shot the man in the chest, He died before emergency personnel arrived on scene.

Bain was later indicted on a charge of murder, and despite having stated that he did not see a weapon when he shot Gutierrez, a jury in Judge Weatherby’s 340th District Court acquitted the man of homicide in May 2013. The shooting was deemed justified under the Texas Penal Code Chapter 9, which outlines three situations in which a citizen can exercise deadly force: self-defense, defense of a third party, and protection of property.

The contentious Bain case is the most recent homicide to be tried in Tom Green County in which a jury found that the defendant had acted within the confines of the law. While most of the county’s killings in recent years have been the direct result of domestic violence, 51st District Attorney Allison Palmer says there have been a handful of cases where homicide was justified under state law.

“It’s not common, it’s not frequent,” Palmer said. “It’s rare, but it does happen. The majority of homicide cases that I have reviewed are not justified.  There have been a handful of others that I agreed and perhaps a grand jury agreed [were justified] and there were no indictments. I would say less than 10, but probably approximately five [in the past five years].”

Justifications are not a license to kill, criminal defense attorney John Stacey Young said. If a jury finds a certain set of circumstances applied to the incident at the time of the killing, then they would find by law that the use of deadly force was legally justified and therefore not criminal.

Emphasizing the word ‘jury’, Young said, “…there is the old law enforcement…saying, ‘You can avoid the rap but not the ride’. There’s a good chance you’re going to get arrested even if you’re justified. There’s a better-than-good chance. Secondly, there’s an almost certainty you’re going to have your case submitted to a grand jury.”

Anytime a homicide occurs, the case is stringently investigated and scrutinized, Palmer said, whether it appears to have been justified or not. The law provides a specific set of circumstances for each of the three justifications that, if present, acquit a person from criminal charges. Present in all of those circumstances, however are two complex concepts. 

“There are two big components…in each of these three deadly force applications,” Palmer said. “What the legislature is always going to require is that you’re reasonable…and [that deadly force was] immediately necessary. In other words, you’ve got a timing component to it too.”

Timing is generally more easily understood than reasonableness in these cases because reasonableness is a subjective judgment passed by a third party, Young explains.

“Everything in chapter 9, the justification concept, is based upon the mythical, reasonable man standard,” he said. “I’m going to tell you I’ve never met the reasonably prudent person. I don’t know who he is. It’s a person or a concept that the law creates that says that if a…reasonably prudent person were in the same or similar circumstances, looking at it from the eyes of the shooter…was his view (or his action) reasonable? What do you measure that by? Necessarily, it’s going to be what those 12 people on a jury or a grand jury believe is reasonable.”

Stand Your Ground

Between 1977 and 1995, if an aggressor broke into your house, Texas law dictated that you had a duty to retreat, if possible, and only after making that attempt could you justifiably use deadly force.

The duty to retreat inside your home was repealed in 1995, and in 2007 the Penal Code was amended to include other areas where no retreat is necessary, such as your business, occupied vehicle or place of employment, in what has come to be known as the “Stand Your Ground

Law” or “Castle Doctrine”. 

Although the law has been broadened, it does not give one free reign to fire at will and claim self defense. Only under a very specific set of circumstances can one use deadly force, and even then that person could face criminal prosecution.

“The only time you can use deadly force is if you’re in fear of serious bodily injury or death,” Tom Green County Sheriff David Jones said. “You can protect yourself, your family or a third party.”

Under the Texas Penal Code Chapter 9, a legitimate and reasonable fear of serious bodily injury or death may arise in three situations: (1) if you knew or had reason to believe that the person unlawfully entered your occupied habitation, vehicle, place or employment or business with force; or (2) if the person breaking in has or was trying to remove you from any of those locations; or (3) if the person was committing or attempting to commit another felony, i.e., robbery, assault, kidnapping, murder, etc.

Even in those three situations, you’re still to react with only the force immediately necessary to protect yourself. Otherwise, a prosecutor or grand jury may deem your actions unreasonable, and you may be charged with murder, as in the case of Robert Bain.

“If it looks like it’s going to kill you, then you have the right to use deadly force,” Young simplifies. “If it looks like it’s just going to hurt you, then probably you don’t have the right to use deadly force, but you do have the right to use enough force to repel the attack.”

Domestic Violence

Domestic disturbances are the number one call for service local law enforcement agencies receive, and not surprisingly, the majority of murders are born out of volatile domestic situations.

Tom Green County Sheriff David Jones has been in office for 20 months now, and over that span of time has worked five murder cases in the county. Just days before he took office, he said, another shooting and murder took place, bringing the death toll to six.

“We’ve had four domestic violence shootings in 20 months,” he said. “I have five people that were murdered and eight people that were shot in those four domestic instances. There’s been a lot going on in 20 months. And very unusual. We had the Wall shooting where there were two people killed and another person shot. We had the Grape Creek murder, where one person was killed and another person was shot, we had the lady near Veribest that was shot and then he shot and killed himself. Then we had the Hughes shooting out on the Hughes Ranch, where two people were shot and neither one of them died, but all of those were domestic-type shootings.”

While the law is very specific about those who are unlawfully in your home, vehicle or place of employment, it is somewhat broad when it comes to protecting yourself in situations where the person is legally present, for example, if that person is a spouse or a friend you’ve invited in.

The basic guidelines, however, are the same, meaning you can only respond with the minimum amount of force necessary to protect yourself and cannot apply deadly force in reaction to verbal threats alone, while committing a crime yourself, or after provoking the aggressor.

The law affords the same justifications in the same circumstances to protect a third party if the person believes his intervention is immediately necessary to protect that person.

Charged with Murder

All cases of homicide are extensively investigated, and should investigators have any probable cause that an offense occurred that person will be arrested and charged.

“If at the time you can prove that an offense occurred, you’ll make an arrest,” Jones said. “If you can’t, generally you won’t make an arrest then, you’ll continue with the case and either go back and get a warrant for them if they’re not arrested on the scene or present it to the DA and the DA will take it to the grand jury and get a grand jury indictment.”

Jones advised that should a person find themselves in a volatile situation, the best thing to do is to call the authorities for help or to try and leave, if possible. Deadly force should only be used when absolutely necessary, and as a last resort. 

"That moment from exercising that justification through the grand jury is the most harrowing, overwhelming, scary days in a person’s being," Young said. "There are very few other circumstances that are more scary, that are more overwhelming to the individual than being charged with a crime, having to go through the police custody interviews and then…even if the police don’t formally charge you, very likely it’s going to go to a grand jury and that is a scary, scary thing when 12 people you don’t know have the balance of your life in their hands. Those 12 people decide whether or not you’re going to face a trial that could result in you being sentenced to prison for the rest of your life or whether your justification is believed." 



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