A key point to consider is that you don't have to wait until you've sustained a serious bodily injury or near death before being justified in self defense. You may be justified in self defense before the offender even makes physical contact with you.K.Mooneyham wrote: ↑Mon Nov 29, 2021 1:29 amI do understand the information you posted, and having taken one of Mr. Cotton's seminars many years ago, I already knew some of it. It just seems that a lot of definitions of things are out-of-date, or at least not taking current conditions into account. I'm not talking about two 1970s "good ol' boys" in a classic "barrroom brawl" after a few too many at the ol' beerjoint, nor two Victorian gentlemen settling a disagreement via fisticuffs and Marquess of Queensbury Rules. I'm talking about ruthless modern bad guys, many of whom are drugged up on who knows what all substances, trying to beat someone to death for "disrespecting them", or similar. I am certain that if a person knew where to look, they could find multiple instances of people being severely injured, or killed, by a single punch or kick. Again, I will state that no one should have to put up with someone attempting to beat them, and I simply feel that it is unreasonable to expect that. On the other hand, I do everything I can to avoid situations where that sort of thing becomes more likely to occur...but no one can avoid all trouble forever.srothstein wrote: ↑Sun Nov 28, 2021 11:05 pmIf it helps, here is the definition of serious bodily injury from the Penal Code Section 1.07(a)(46):K.Mooneyham wrote: ↑Sun Nov 28, 2021 8:26 pm In reply to "MikeS", please define the term "butt whooping". I am curious where the line is drawn and how beaten someone has to be before it's not just a "butt whooping". How injured does someone have to be before it becomes "serious bodily injury"? Why should anyone have to put up with having someone else attempt to beat them? I'm an aircraft mechanic, and not a weakling per se, but I'm also no longer a young man. Additionally, I don't have any particular hand-to-hand fighting skills, such as tae kwando, krav maga, or kung fu. How am I to know if someone assailing me does have those skills, before it might be too late? To paraphrase that famous John Wayne character, I don't put my hands on anyone else and I shouldn't have to put up with anyone else doing that to me.The way I was taught, permanent disfigurement means a scar or worse. Protracted loss or impairment of any bodily member or organ means a broken bone, a sprain, or similar injury. A big portion of the problem with this definition is that a lot of it depends what the DA will accept for it. In Bexar county, it was how I said above (at least while I was on the PD there). In Caldwell county, a lot more rural and conservative, the general rule was if it required medical treatment in the ER. Calling EMS was not enough but if they transported it was.(46) "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
As to your question about the other person's skills, the answer is going to rely on common sense, unfortunately. There is a legal concept the courts have used called a disparity of force. For example, a 120 lb, 5'2" female can expect more injury and use more force against a 200 lb, 6'1" young male. Same for someone like me (a 65 year old in poor shape and with sever arthritis in multiple joints) against the 20 year old man who lifts weights and works out. In both cases, the opposite holds. The young fit male cannot escalate if fighting me or the small female.
I think Mr. Branca is correct when he says that the overriding legal theory is reasonableness. Is your behavior reasonable to the average person IF he was in that situation knowing what you knew then.
What is required is that you were in jeopardy of death or serious bodily injury ((You reasonably believed that 1) the other person was actually capable of inflicting that level of injury; 2). that person was about to inflict that level of injury right now; 3) and the level of force you use to stop it was immediately necessary)).
Your belief must be reasonable. In other words, "Would a reasonable person, under those same circumstances, & knowing what you knew at that point in time, have reasonably believed that they were in immediate jeopardy of death or serious bodily injury, and reasonably believed that the force used was immediately necessary to prevent that level of injury?"
Just because someone could have skills as a fighter, or could cause a serious bodily injury if they struck us, doesn't translate as a reasonable belief that we must immediately use force/deadly force to prevent it. We must reasonably believe that they actually can; that they have the opportunity/intent to do so; & that it's imminent (going to happen right now, not a threat that it may occur in the future).
TPC 9.31/9.32 also includes some situations where that belief is "presumed to be reasonable". Murder, sexual assault, robbery, & aggravated kidnapping, or unlawfully with force attempting to enter/remove you from your occupied dwelling/vehicle/place of employment. However, we can also lose the 'presumption' of reasonableness if we provoked the incident, or were committing a crime at the time. To tie this back to the topic of this thread, I'd opine that under TPC 9.41 you can use force (not deadly force) to terminate a trespass, & that the mere presence of a weapon isn't necessarily considered deadly force based on TPC 9.04 (must already be justified in using force, & your threat is limited to deterring unlawful act of another by 'causing apprehension that you'll use deadly force if necessary) . However, since deadly force isn't justified for a mere trespassing, firing the rifle into the ground at the tresspassor's feet could be viewed as not only unlawful (TPC 22.05 Deadly Conduct)(using deadly force when only force was justified), but also as provoking an escalation. I'd argue either of those actions would likely remove the 'presumption' of reasonableness.
On the other hand, the trespassor had no legal justification for resisting the owner's use of force, but may have had a self defense claim when the owner unlawfully used deadly force. I'd argue that the trespassor wouldn't qualify for the presumption of reasonableness either, though, since he was commiting the crime of trespass, and could be argued that his conduct up to that point as provoking the incident (thus removing the presumption of reasonableness once it shifted from a trespass/defense of property to a self defense encounter).