Why if You Shoot Trespassers, You'll Probably go to Jail


Killing isn’t always illegal in Texas, however when one can justifiably use deadly force to protect their property is not only complicated, but often misunderstood.

Signs on property edges threatening to shoot trespassers and the faulty notion of the right to kill a cheating spouse under a “temporary insanity” defense are old adages most have seen or heard in west Texas, however tongues quick to draw often miss the mark when it comes to proper application of the law.

“Trespassing can be met with force, but not deadly force,” Tom Green County Sheriff David Jones explains. “There’s certain things that you can and can’t do. It’s just not, ‘if you get on my property, I can shoot you’.”

Paramount to using deadly force to protect property is the time of day. Texas law affords owners of land or tangible, moveable property the right to use deadly force only at nighttime, and again only in two distinct situations.

In order to use force to protect property, the penal code states that a person reasonably believes force is necessary to prevent or terminate trespass or interference with property or that the force is immediately necessary to recover the property.

The law places further stipulations on the use of deadly force, which requires that one reasonably believe the deadly force is immediately necessary in order to: (1) prevent the imminent commission of arson, burglary, robbery, aggravated robbery, theft or criminal mischief at night, or; (2) to prevent someone from fleeing after committing one of those offenses if  he also reasonably believes the property can’t be protected or recovered by any other means or if he didn’t use deadly force he might incur serious bodily injury or death.

Since ‘nighttime’ is a subjective term that differs from person to person, a legal definition describes the word as: “That space of time during which the sun is below the horizon of the earth, except, that short space which precedes its rising and follows its setting, during which, by its light, the countenance of a man may be discerned.”

“I would say as a criminal defense lawyer, in the heat of the moment, it’s hard to quickly assess reasonability and it’s even more difficult to assess if there are other means available to obtaining recovery of your property,” attorney John Stacey Young said. “Unless it is a significant family heirloom or something of overwhelming, significant value that can be dissipated quickly…if it’s something that can be reacquired just by spending money, it’s probably not very wise to use deadly force. Even if it is one of those things, it may not be wise to use deadly force.

“I discourage—as a criminal defense lawyer, as a citizen, as a human being—the use of deadly force for protecting stuff. Our society is very quick to focus on stuff rather than on people. And that’s not to say the fellow may not need killing, but is it really necessary over stuff.”

Other Defenses

Although the three main justifications involve self-defense, defense of a third party, and protection of property, other defenses are sometimes used to acquit a person of murder and other crimes.

Of these, the most “infamous” is known as “temporary insanity”, or in legal terms, just “insanity”. A second defense is called “mistake of fact”.

“One thing that’s a little bit different with an insanity defense and a mistake of fact defense…for those defenses to work, the defendant has to admit he engaged in all the conduct we’re saying,” 51st District Attorney Allison Palmer said.


“If I understand the definition of temporary insanity, this right here was it,” Matthew Salazar wrote on page three of his written confession to the murder of his wife on Aug. 31, 2013.

Presumably clinging to the old west Texas adage of, “If you catch your wife cheating, you can shoot her in the state of Texas. It’s temporary insanity”, Salazar might have believed his actions were justified.

In reality, being deemed insane at the moment an offense is committed is not only incredibly rare, but involves stringent psyche evaluations that disqualify the vast majority from using it as a defense.

“The public has a misperception that insanity is frequently used and that’s false,” Forensic Psychologist Dr. Kelly Goodness said.

Goodness has been performing forensic psychological evaluations for the 15 years in Texas, and has, by her measure, done “thousands” of insanity evaluations. Within the last year, she said she looked up current numbers that reflect an approximate 500, the vast majority of which did not qualify due to substance abuse or repeated criminal activity.

If a person has substance abuse issues, insanity will not work as a defense, Goodness said, as substances alter the mind in an unnatural fashion that does not equate to legitimate, mental-illness-related insanity. Further, a history of criminal activity constitutes a general tendency toward antisocial conduct, and therefore negates the legal requisite of a “mental disease or defect” in which one does not know that his conduct was wrong.

“There’s mental illnesses that include hallucinations and delusions that have nothing to do with substances and that’s where you have the potential for a genuine insanity defense,” Goodness said.  

“If they don’t have a substance abuse issue…and they have never ever had what we call a psychotic break, then that’s going to be suspect,” she continued. “If they don’t have any history of mental health symptoms until they did something that was illegal, then they may be manufacturing an illness that is not genuine to avoid legal charges. So when we do these evaluations, we don’t just evaluate and talk to the individual who is accused, but we also talk to whoever we think is pertinent, be it family members, coworkers, friends, whoever was at the scene…”

Of the many evaluations she’s conducted over the years, Goodness said there were only three or four that she actually believed truly met the standard of insanity in the state of Texas.

Mistake of Fact

Under Texas law, if a person makes a mistake about a situation that causes him to reasonably believe his actions were in accordance with the law, the mistake of fact may be used as a defense.

For example, Tom and John were friends, until John offended Tom’s mother. Tom tells John that the next time he sees him, he’s going to kill. A week or so passes and John encounters mutual friends of his and Tom, who both relay that Tom is out to kill him and that he is always carrying a gun. John knows Tom has a concealed handgun license, and is also aware that he always carries a gun.

At the end of the week, Tom shows up and says, “I’m going to kill you like I said I would. I’m going to beat you to death and you’ll never say anything about my mother again!”

“An actor is entitled to consider ‘what’s this guy said before? Does it cause me fear? Is it reasonable to believe?’” Young said.

When John sees a bulge in Tom’s front pocket while he’s raving about killing him, he assumes it’s the gun he’s heard so much about and draws his own weapon and fires, fatally wounding the man.

Law enforcement later arrives on scene and determines Tom wasn’t carrying a gun; he was carrying a pouch of sunflower seeds.

Although John has now shot and killed an unarmed man, he could use mistake of fact as a defense. He mistook the fact the Tom was carrying sunflower seeds and formed a reasonable belief that it was a gun, based on his knowledge of the subject and on the fact that Tom has not only threatened him personally, but also told others what he intends to do.

Like insanity, defendant’s who use mistake of fact must also admit to the charges, Palmer said. “They’re going to have to be saying, ‘I did do it. I did intentionally, knowingly cause the death of the decedent by shooting him with a gun. I did. But, I thought he was coming at me with a gun, when in fact it was a cigarette lighter.’”


As in protection of persons, all justifications for the use of deadly force in protection of property and in mistake of fact center on the concept that the action was reasonable in that given situation.

Force is only legal in certain situations, and the law states that only the minimum amount of force required to repel the aggressor may be used. Deadly force is only applicable in even more specific situations, and again, the reasonableness of the actor and his belief that deadly force was immediately necessary will most likely be weighed by a prosecutor, grand jury, and if indicted, a petit jury.

Should a jury find that the actions were unreasonable in a trial, by law they will convict a person of murder.

“When it comes down to it, if you’re protecting your life, if you think you’re going to be assaulted or have a robbery or something like that, force is certainly justifiable,” Sheriff Jones said. “But without that threat, if you don’t think you’re in danger or someone else is in danger, that’s a moral issue, too. I would encourage anyone to protect themselves…but just to use deadly force to protect a television set, that’s a different thing.” 

For information on utilizing deadly force for the protection of persons, click here. 



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