Houston, TX asked in Domestic Violence and Criminal Law for Texas

Q: Can I go to jail for using self defense on my pregnant younger sister? She has a history of being aggressive.

She is very aggressive and my parents have a history of calling the police on her acting violently. She instigated a fight when she threw something at my dog and when I tossed it back, she attacked me. It was very awkward because she kept punching me and I tried to only get her face, both of our faces got scratched up. This is the second time she has attacked me while being pregnant, even when I ask her to stop because of her baby, she does not care. Before and during the fights she is always saying hateful things to me about how she doesn't care and she'll fight me even while pregnant.

1 Lawyer Answer
Kiele Linroth Pace
Kiele Linroth Pace
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: You can be arrested and taken to jail for assaulting the Tooth Fairy but you can only be CONVICTED if the prosecution can prove every element of the offense beyond a reasonable doubt. Self defense is a justification for the use of force. When the issue is raised by testimony or other evidence, the prosecution must DISPROVE self defense beyond a reasonable doubt. So that means it can be a really good strategy when the facts support the justification.

However, a clever prosecutor will point out that a defendant who provokes the difficulty is not entitled to the self defense justification... If you threw something at your sister before she attacked you, then you provoked the difficulty and it could be argued that YOU assaulted her and that SHE was the one acting in self defense.

You are allowed to use force to defend another PERSON from attack, but not to protect a dog. So if your sister's initial aggression was toward the dog, you can't use "defense of a third party" with respect to the dog. HOWEVER, it might be possible to use Defense of Property if it can be said that your act of tossing it back was intended to terminate your sister's "unlawful interference with the property." If your dog experienced pain as a result of your sister's use of force against your dog might have been unlawful under Penal Code 42.092(b)(6) (Cruelty to Nonlivestock Animals) except if your sister was actually defending herself, her property, or someone else from your dog... in which case the sister's force may have been justified.

Bottom line is that this can get really complicated, really quickly... so hire a lawyer if you are arrested and, if the police investigate, do NOT talk to them without your attorney present.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.