Posted on 08/21/2005 8:38:27 PM PDT by Mr. Mojo
"Either way, Texas law is clear. You have the right to shoot trespassers on your land after dark, no questions asked."
Some of you folks need to brush up on your Texas deadly force statutes. You cannot just shoot a trespasser on you land after dark if trespassing is the only crime being committed, even in Texas.
But if you tell them to leave and they don't that is another story, the old man was face to face with the tresspasser and it was after dark, he was in the right.
If that is your line then the sand, then I applaud you for your it. However, be aware that there's a good chance you will be facing criminal prosecution as there is no affirmative defense to prosecution for the use of deadly force against a trespasser if trespassing is the only crime being committed.
Sorry, but no. You can shoot people for simple vandalism after dark as well.
Texas Penal Code, Chapter 9, subsection 41 and 42 - also known as 9.41 and 9.42.
§ 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person
in lawful possession of land or tangible, movable property is
justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to
prevent or terminate the other's trespass on the land or unlawful
interference with the property.
(b) A person unlawfully dispossessed of land or tangible,
movable property by another is justified in using force against the
other when and to the degree the actor reasonably believes the force
is immediately necessary to reenter the land or recover the
property if the actor uses the force immediately or in fresh pursuit
after the dispossession and:
(1) the actor reasonably believes the other had no
claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using
force, threat, or fraud against the actor.
§ 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or
tangible, movable property:
(1) if he would be justified in using force against the
other under Section 9.41; and
(2) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to prevent the other's imminent commission of
arson, burglary, robbery, aggravated robbery, theft during the
nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing
immediately after committing burglary, robbery, aggravated
robbery, or theft during the nighttime from escaping with the
property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or
recovered by any other means; or
(B) the use of force other than deadly force to
protect or recover the land or property would expose the actor or
another to a substantial risk of death or serious bodily injury.
Texas law on self defense is even clearer - though 9.41 and 9.42 provides all the justification needed in this case. 9.31 and 9.32 cover self-defense when property is not involved:
§ 9.31. SELF-DEFENSE. (a) Except as provided in
Subsection (b), a person is justified in using force against
another when and to the degree he reasonably believes the force is
immediately necessary to protect himself against the other's use or
attempted use of unlawful force.
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows
is being made by a peace officer, or by a person acting in a peace
officer's presence and at his direction, even though the arrest or
search is unlawful, unless the resistance is justified under
Subsection (c);
(3) if the actor consented to the exact force used or
attempted by the other;
(4) if the actor provoked the other's use or attempted
use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly
communicates to the other his intent to do so reasonably believing
he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts
to use unlawful force against the actor; or
(5) if the actor sought an explanation from or
discussion with the other person concerning the actor's differences
with the other person while the actor was:
(A) carrying a weapon in violation of Section
46.02; or
(B) possessing or transporting a weapon in
violation of Section 46.05.
(c) The use of force to resist an arrest or search is
justified:
(1) if, before the actor offers any resistance, the
peace officer (or person acting at his direction) uses or attempts
to use greater force than necessary to make the arrest or search;
and
(2) when and to the degree the actor reasonably
believes the force is immediately necessary to protect himself
against the peace officer's (or other person's) use or attempted use
of greater force than necessary.
(d) The use of deadly force is not justified under this
subchapter except as provided in Sections 9.32, 9.33, and 9.34.
§ 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A
person is justified in using deadly force against another:
(1) if he would be justified in using force against the
other under Section 9.31;
(2) if a reasonable person in the actor's situation
would not have retreated; and
(3) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to protect himself against the other's use or
attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of
aggravated kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery.
(b) The requirement imposed by Subsection (a)(2) does not
apply to an actor who uses force against a person who is at the time
of the use of force committing an offense of unlawful entry in the
habitation of the actor.
Like I said, once they are told to leave and they refuse and it is after dark it is quite safe to assume it is no longer simple trespass. As a matter of fact if they open a closed gate or crawl over a fence it is then criminal trespass along with the posted no trespass signs.
9.41(a) plus 9.42(2)(a). Guess what "criminal mischief" is, and has been defines as such by case law.
"Likewise, trespassers who get shot are not allowed to sue for damages, and neither are their survivors."
I'm not trying to rip on you, Spktyr, but this is also not true. Even though the Texas Penal Code allows for the use of deadly force in certain instances, civil remedies are unaffected.
Shocked too. *Bugged out eyes*
Does anyone check to see if his back was wet?
Dang, Y'all got "hispanics males 31-35" that far north?
LOL-Houston
Yup...can you say "no billed?"
You're missing a key part of the facts:
"When the elderly man discovered the intruder in the backyard, a struggle ensued"
Without anything more, it would be just as much a leap to assume he was doing NOTHING in the backyard as to assume he was destroying property or doing something else destructive.
A fortified position is no match for a mobile agressor. The Maginot line was useless. A house with breakable windows, exposed utilities, and burstable doors is not as secure as the French surrender line was.
Nice shot!
What was the homeowner playing?
In my county (Cooke) there are at best two deputies on
duty in the wee hours and they are usually keeping tabs
on the I35 corridor. The sheriff pulls a shift along with
his deputies, but there just aren't a lot of people in
the department.
I wouldn't be seeing one on our road for at least an
hour. I just hope I'm never in the situation where
I might have to shoot another human being.
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