TexasCHLforum.com

boomerang wrote:In Texas a person doesn't have to enter with force to commit burglary.

True.

The above discussion was focused on "can you shoot burglars." The part of the penal code dealing with intruders in your habitation, vehicle, etc actually doesn't specify "burglary," it deals with "unlawful entry with force," which are among the traditional elements of burglary. Many of the legal outlines and presentations I wrote about above also mentioned that the legal definition of burglary has been broadened over the many years since English common law was formed, and that the "force element" was greatly reduced or dispensed with entirely in many states (as in Texas' case). The use of self-defense/defense of a third party against an intruder still has the element of "force" to it tho, altho as Srothstein notes, this is not a great burden to meet and probably gets little attention in Texas.

re: unlawful entry with FORCE --- I just googled this, and found a few teaching outlines and presentations that dealt with it, most of them related to Texas law. They pretty much all note that it doesn't take much to meet the "force" (or as it was originally known, "breaking") element of burglary. A frequent example was pushing open an already partially open window. Some stated that pushing open a door sufficed. It seems about the only time the "force" element would not be present would be where the suspect was in someway invited in or had consent. For example, in a public store during opening hours, a person who walked in and swiped something of the shelf would not be guilty of burglary. Theft/shoplifting, but not burglary. Similarly, in some jursidictions at least, someone you brought into your house (say to paint it) who then stole your TV would not be a burglar, because he did not use force (and was not there unlawfully). He'd be a thief, but not a burglar.

However, I am pretty confident that someone who opened your front door, walked in, and swiped your jewelry box would be successfully charged with burglary -- if he survived the encounter.

Aha, I see when previewing this that KD5NRH came up also with the door-pushing example from a source close to home...

Key points:

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:
(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;...

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;

The following is important! Especially to me! It appears under the Criminal Trespass section rather than the deadly force sections, but never the less, you may not legally shoot at anyone who enters your house -- only those who enter unlawfully...

(c) It is a defense to prosecution under this section that the actor at the time of the offense was a fire fighter or emergency medical services personnel, as that term is defined by Section 773.003, Health and Safety Code, acting in the lawful discharge of an official duty under exigent circumstances.

I'm still looking for what exactly "...and with force..." means with respect to these statutes. I am pretty sure it does not require at least a splintered door or broken glass... but I am having trouble finding where I came across it before.

Stupid wrote:By law, anybody breaking in your room is a free target, right?

Umm, not quite. I would have to look up the statute to be absolutely sure, but in plain terms, you are legally authorized to use deadly force (or force in general) against someone who is unlawfully breaking into your home.

Stupid wrote:However, if you forget to lock the door and someone just waltzes in, you cannot just shoot him legally, right?

Again, I believe the legal definition of "breaking in" encompasses someone who merely turns the doorknob and comes in, as long as the entry was unlawful.

I have broken into homes before, but not unlawfully...I would appreciate people not shooting at me when I do so.

Believe I will go review the statutes just for grins.