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Keith B wrote:

AlaskanInTexas wrote:

Keith B wrote:No. 9.42 for burglary only pertains to 30.02. Burglary of a vehicle (30.04) is only a Misdemeanor (dsicounting theft from or of the vehicle or the vehicle being occupied). Where use of deadly force plays into a vehcile is under 9.32 for defense of person if the vehicle is occupied and only relates to the crime committed against the person, not the vehicle itself.

While the law is certainly ambiguous, I see nothing that supports this statement. I also see nothing in the law that limits your right to protect property to those situations where the actor committed a felony.

Burglary and Burglary of a motor vehicle in istelf are two different things and have sperate statutes. The portion that comes into play is either occupied OR with the intent to commit a felony or theft. If they were all inclusive, then you could also use deadly force to stop the burglary of of a coin operated machine (30.03).

I think the shortcoming in that analysis is that 9.42 does not explicitly incorporate 30.02. You are assuming that the Legislature meant the narrow definition of "burglary" contained in 30.02, instead of the three burglary offenses in the burglary chapter of the penal code or some other civil or common law definition. I totally see your argument - and it is a good one (especially if you look to the separate references to robbery and aggravated robbery, instead of one general robbery reference) - but the law is not as black and white as your original response suggested. In any event, as I noted above, it appears that at least one court concluded that burglary of a vehicle constituted burglary for purposes of 9.42.

Keith B wrote:No. 9.42 for burglary only pertains to 30.02. Burglary of a vehicle (30.04) is only a Misdemeanor (dsicounting theft from or of the vehicle or the vehicle being occupied). Where use of deadly force plays into a vehcile is under 9.32 for defense of person if the vehicle is occupied and only relates to the crime committed against the person, not the vehicle itself.

While the law is certainly ambiguous, I see nothing that supports this statement. I also see nothing in the law that limits your right to protect property to those situations where the actor committed a felony.

RoyGBiv wrote:So... Are 30.01, 30.02 and 30.03 all and each included in the 9.42 definition of "Burglary"?

I think you mean 30.02, 30.03, and 30.04. There is an unpublished case that weakly implies that burglary of a vehicle (30.04) is included within the meaning of burglary under 9.42. Here is a quote:

"In this case, appellant concedes that the incident did not take place in the nighttime.FN7 Further, appellant does not argue, and we find no evidence, that this case involved an arson, robbery, or aggravated robbery. Therefore, appellant had to establish that he reasonably believed that deadly force was immediately necessary to prevent a burglary. A person commits burglary of a motor vehicle if, without effective consent of the owner, he breaks into or enters the vehicle or any part of the vehicle with intent to commit any felony or theft. TEX. PENAL CODE ANN. § 30.04(a) (Vernon 1994). “Enter” means to intrude any part of the body or any physical object connected to the body. Id. at section 30.04(b)."

Spencer v. State, Not Reported in S.W.2d, 1997 WL 701324, Tex.App.-Dallas,1997.