Special Report: Using deadly force to protect your home in Texas is a right, but will it keep you out of prison?

The right to bear arms in self defense is enshrined in the constitution.

But is it absolute? ABC-7 investigated how some Americans are finding it more complicated than they thought.

“If they do happen to break into our house, they’re in deep trouble,” Las Cruces resident John Stevens told ABC-7 after a man armed with a hammer attacked his 79 and 80-year-old neighbors in Las Cruces. “We’re well armed and I’m not afraid to shoot and really good shots, so is she. So if they come in here and I hear them, they probably won’t get out alive.”

A week later, Upper Valley resident Stuart Roberts told ABC-7 this after the assault of a 16-year-old female jogger in his neighborhood.

“If we ever see anything like that going on again, they better watch out,” Roberts said. “We will protect the innocent, especially young women, and they also stand a chance of getting shot!. So these crooks better start thinking about that.”

Strong words. But they could be used against you.

“It’s generally not good to be telling people, ‘You come in my house and I’m going to shoot you,” El Paso defense attorney Patrick Lara said. “I don’t think there’s a district attorney around that wouldn’t play that sound bite in your trial to show that, ‘Oh, you meant to shoot that person before he even came in.’ Generally those statements are a little hard for a defense attorney to get around.”

Minnesota retiree Byron Smith shot and killed two unarmed teenagers in 2012 who broke into his home. Smith said he was fearful after previous burglaries. But prosecutors argued he intended to kill the teens.

A creepy audio recording of Smith taunting the teens after shooting them didn’t help his case. It took the jury three hours to reject his self-defense claim and convict Smith of premeditated murder. He’s spending the rest of his life in prison.

“That person laid in wait and that’s probably a lot of what that jury considered when they decided to find him guilty,” Lara said.

When it comes to making bold statements to the media about defending your home, that may or may not be determined to be premeditation. But El Paso District Attorney Jaime Esparza said in Texas, it all comes down to the Castle Doctrine.

“I’m always hesitant to do interviews on the Castle Doctrine, because I don’t want to give anyone the license to use deadly force,” Esparza said. “But on the flip side, they have a right to protect themselves and they ought to be aware of the law.”

Texas law says you must have the right to be at the location where deadly force is used, like your home. You must not have provoked the person against whom you are using deadly force and you may not be engaged in criminal activity at the time.

“If you can meet those three criteria, you don’t have a duty to retreat and so you have the right to defend yourself,” Esparza said.

“I make sure they understand they actually have a right to defend their property,” said Samuel Morgan, owner and instructor at El Paso Concealed Carry. “I preach it like this. If you know where everyone is in your home, you know where the kids are, you know where the dogs and where the cats are, anything that’s not supposed to be there you’re going to go ahead and engage that and you’re going to ask questions later. No one has a right to be in your home without your permission.”

“Until you are actually in someone’s shoes and they’re coming in your door and they have a gun and they have a knife, then 9.32 in Texas and the laws of New Mexico give the homeowner the right to make that decision if it’s a reasonable belief,” Lara said. “If it’s reasonable, and that’s one thing the jury will have to decide in each and every case.”