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by locke_n_load
Thu Mar 23, 2017 12:51 pm
Forum: General Texas CHL Discussion
Topic: Penal Code-Deadly Force on 06/07 Property
Replies: 29
Views: 5146

Re: Penal Code-Deadly Force on 06/07 Property

Here's what I have:
Sec. 9.31. SELFDEFENSE.
(a) Except as provided in Subsection
(b), a person is justified in using force against another when and to
the degree the actor reasonably believes the force is immediately
necessary to protect the actor against the other's use or attempted
use of unlawful force.
The actor's belief that the force was
immediately necessary as described by this subsection is presumed to
be reasonable if the actor:
(1) knew or had reason to believe that the person against
whom the 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 aggravated
kidnapping, murder, sexual assault, aggravated sexual assault,
robbery, or aggravated robbery;
(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.
What's bolded states that you can use force against any other type of unlawful force. If it does not fall under the subsections (1)(2)(3), you lose your automatic presumption of reasonableness, but it can still be found to be reasonable.

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.
What's bolded here is that deadly force is lawful if you are found reasonable under 9.31, and if someone is committing one of the specific acts listed in (2)(A)(B). The use of deadly force for any other act against you is not lawful, period. Your use of deadly force can still be found reasonable even if you don't meet the automatic presumptions in (b), as long as something in (2)(A)(B) is occurring against you.

As far as duty to retreat, section (d), it says that if you meet those requirements the jury can't consider whether or not you failed to retreat. However, it does not say that you have a duty to retreat if you don't meet that clause.
by locke_n_load
Mon Mar 20, 2017 1:59 pm
Forum: General Texas CHL Discussion
Topic: Penal Code-Deadly Force on 06/07 Property
Replies: 29
Views: 5146

Re: Penal Code-Deadly Force on 06/07 Property

Riley wrote:You would lose the automatic presumption but you can assert the defense in TPC 9.32(a) as justification.
So to be justified in using force,
Sec. 9.31. SELFDEFENSE.
(a) Except as provided in Subsection
(b), a person is justified in using force against another when and to
the degree the actor reasonably believes the force is immediately
necessary to protect the actor against the other's use or attempted
use of unlawful force.
The actor's belief that the force was
immediately necessary as described by this subsection is presumed to
be reasonable if the actor:
So your actions can still be found to be reasonable if they don't fall under the next subsections, you just don't have the automatic presumptions that it was reasonable. You can use force against any form of unlawful force, not just the ones listed under that. You just lose the automatic presumption of reasonableness, but it can still be found to be reasonable.

Then,
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:
Deadly force is a little different I see, that you can only use it
(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.
The use of deadly force is not allowed for any other situations. However, if they meet one of those items, you can still be found to be reasonable even if you don't meet the later parts of the code, you just lose the automatic presumption.
by locke_n_load
Sat Mar 18, 2017 4:43 pm
Forum: General Texas CHL Discussion
Topic: Penal Code-Deadly Force on 06/07 Property
Replies: 29
Views: 5146

Re: Penal Code-Deadly Force on 06/07 Property

dlh wrote:Some other possibilities to look at would be Section 8.05 of the Texas Penal Code--DURESS, and

Section 9.22 of the Texas Penal Code--NECESSITY although the necessity defense might not apply due to Subsection 3 of that Section.

And then, there is always jury nullification :) That works best when the deceased bad guy you shot had a long criminal history and was covered in gang tats.
Usually a pretty good chance in Texas!
by locke_n_load
Sat Mar 18, 2017 2:55 pm
Forum: General Texas CHL Discussion
Topic: Penal Code-Deadly Force on 06/07 Property
Replies: 29
Views: 5146

Re: Penal Code-Deadly Force on 06/07 Property

This may be one of the ones that would need case law, but I was just wondering if anyone had anything more concrete.
by locke_n_load
Sat Mar 18, 2017 2:43 pm
Forum: General Texas CHL Discussion
Topic: Penal Code-Deadly Force on 06/07 Property
Replies: 29
Views: 5146

Re: Penal Code-Deadly Force on 06/07 Property

Ruark wrote:This doesn't answer the question, but a couple of points:

1. Carrying past an 06 sign isn't "trespassing." It's "carrying past an 06 sign."

2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.

You sure about #1?
Sec. 30.06. TRESPASS BY LICENSE HOLDER WITH A CONCEALED HANDGUN
2. I know. It is just a theoretical. I'm not advocating walking past proper signage.
by locke_n_load
Sat Mar 18, 2017 1:30 pm
Forum: General Texas CHL Discussion
Topic: Penal Code-Deadly Force on 06/07 Property
Replies: 29
Views: 5146

Penal Code-Deadly Force on 06/07 Property

Okay, question for the law gurus.
You are carrying your handgun under the authority of your LTC, and you enter a property that is properly posted with 30.06/30.07. I don't think TPC makes a distinction between accidentally (didn't notice sign) or purposely (saw it and proceeded anyway). This would normally be a class C misdemeanor in most locations.

While on that property, your life becomes in danger and you shoot in defense of your person. You met all requirements of 9.31 and 9.32, except you were carrying past valid 06/07 notice, which is trespassing, a criminal activity that isn't a class C misdemeanor for traffic. Do you lose your presumption of reasonableness since you were engages in "criminal" activity? And therefore used unlawful deadly force?

Sec. 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 the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(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.
(b) The use of force against another is not justified:
(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;

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