Posted on 01/05/2010 4:28:05 AM PST by marktwain
Would you be kind enough to quote and/or link the relevant Texas law which defines a B&E as a violent crime?
Did this yute have a passport from Louisiana? The home owner did his job to the best of his ability thanks to their alarm. If our alarm went off the sto-pid company would probably call us and ask us if we’re OK.
Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor 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 actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 5316, ch. 977, Sec. 5, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 235, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1, Sec. 3, eff. September 1, 2007.
Sec. 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.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 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.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Source: http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.9.htm
And the condensed version:
Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor 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 actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
Breaking and entering is considered a violent act in Texas and one that justifies the use of deadly force. Surprise.
Those statutes do NOT declare B&E to be a violent crime. They justify deadly force against an intruder, true. But that doesn't define B&E to be violent.
I believe it is legal in Texas to use deadly force against a mere trespasser at night. Do you therefore believe that trespass is a violent crime?
I think you're missing my point, FRiend.
I am NOT trying to defend the perp, nor am I arguing that he should not have been shot.
My ONLY criticism of the article is that the author misused the word "violent." The perp wasn't violent, given the information from the article.
He just wasn't.
The author shouldn't have used the word that way. That he did so only made the article sound desperate to justify the shooting. It was justified anyway, regardless of the perp's "violence."
He may have BECOME violent at some point, if he hadn't been shot, but up to that point he wasn't.
Okay, what part of “with force” doesn’t imply violence?
Well, if we're going to venture into the implications of words, then it's even clearer.
The "with force" in the statute clearly implies that the force in question be used to unlawfully gain entry into a house, etc.
The "violence" in the article is clearly NOT implying that the perp was violent toward people's windows. You don't use the word "violent" when talking about people breaking windows, but "destructive."
The word "violent" implies attacks on people, not stuff.
To further clarify, here's the FBI's definition of the term "violent crime", as it is used in their statistics:
Violent crime is composed of four offenses: murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault.The perp was committing a burglary, not a robbery. So, no violent crime.
§ 30.02. BURGLARY. (a) A person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
§ 29.02. ROBBERY. (a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
Ah, but in Texas, burglary becomes robbery when someone else (say, the householder) is present and the other party does not flee.
Really? I sure didn't see that in the Texas statutes.
I'd like to see some documentation.
Also, the author of the article called it a burglary.
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death."" I would say that a perp brandishing a weapon (in this case a fire extinguisher that could easily cause great bodily harm, or worse - kill someone if they were bashed over the head with it) is doing just that and is violent under your terms. Put simply, he was doing exactly that and it would fit into the burglary, not the robbery category if we follow your definition of the term!
Nice. Here is the alternative (I posted this story yesterday.)
Those commercials crack me up—they are so unreal.
Like, couldn’t they even show an Asian or a Pacific-Islander as the bad guy once in awhile?
Just check out various Texas newspapers - it’s a common ‘upcharge’ for DAs to use here.
Also, in this case, he was shot before it could become clear. :P Not that it actually matters.
Possibly, but I don't agree.
The article called the crime a burglary, so I'm assuming the police did too. I'm going with their assessment, rather than the author's.
Whether a fire extinguisher in the perp's hands -- the term "brandish" is really vague, especially to a journalist -- counts as a weapon that put the home owner "in fear of imminent bodily injury or death" is far from settled. The guy breaking in at night also strongly suggests a burglary rather than a robbery.
Robbery is when the bad guy points a gun at you or holds a knife to your throat and says, "Hand over the loot." Burglary is when the bad guy breaks in to get the loot and doesn't want to run into anyone in the process.
This guy was obviously the burglar type.
If the perp is a burglar who is also violent (both words were used by the author you're willing to agree with on at least one of those terms), then he crosses the line into robbery.
"Whether a fire extinguisher in the perp's hands -- the term "brandish" is really vague, especially to a journalist -- counts as a weapon that put the home owner "in fear of imminent bodily injury or death" is far from settled."
Maybe for you - at least until you get smashed in the head by one. Apparently someone receiving bodily injury at the hands of the perp would make it crystal clear for you, but I doubt the law would agree and the vagueness to the journalist doesn't matter. The victims here can claim fear of bodily harm or death and the matter is pretty well settled. I mean come on here, the guy had a weapon that could cause bodily harm or death and was nefariously encroaching someone else's home at night, did not immediately surrender or retreat when confronted, but had to be shot to be made to do so. If you can't see the difference then there is probably no convincing you - especially if you can't see the double standard you have set up.
'nuff said.
Yeah, why can't they show a nice 35 year old mother of three pull out an XD45, while the burglar (pick any race, ethnicity here) is trying to break in, AND the alarm is going off? OOOOOH the sheeple would be soooo offended!!!
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