I'll do my best to keep this brief, but not holding my breath...Ruark wrote: ↑Thu Jan 13, 2022 10:15 amTrue about the DAs and judges. In some cities, especially big liberal cities like Austin, Houston, etc. they'll be happy to charge you with murder. Other places, they'll slap you on the back and say, "good shot!"OneGun wrote: ↑Thu Jan 13, 2022 9:40 am Maybe some of the instructors can answer the OP's question. When can you shoot a burglar when you catch them in the act? I'm asking because a LTC instructor told me that in this situation, be a good witness, don't shoot. This issue is not the Texas Penal Code, but the activist DAs and Judges that are embracing Hug a Thug versus the law.
As far as the law, though, I'm not sure. Say you pull into your driveway and see a burglar coming out your front door carrying your TV. Can you do anything legally?
Here's the TPC definition of "Burglary" (https://statutes.capitol.texas.gov/docs ... /pe.30.htm):
Sec. 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.
(b) For purposes of this section, "enter" means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.
Here's TPC 9.41, 9.42, & 9.43 (https://statutes.capitol.texas.gov/Docs/PE/htm/PE.9.htm) :
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.
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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.
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Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his protection of the land or property;
(B) he has a legal duty to protect the third person's land or property; or
(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.
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So, for starters, 'hypotheticals' are difficult to analyze since no two events are exactly alike, and the little nuances can make a huge difference.
From the OP's linked article, there's not a lot of details, but from what we can surmise:
- it was around 5pm, so NOT 'in the nightime'. Note however that 'theft' & 'criminal mischief' are the only two crimes with the qualifier of "...in the nightime" to prevent, or "theft in the nightime" for recovery of the absconded items. For Arson / Burglary / Robbery, there's no such 'time of day' qualifier;
- the offender was committing burglary;
- the home owner had requested the neighbor / actor (actor= the guy who confronted & shot the offender) to check on the house.
So, as I understand the TPC ((NOT legal advice, so take it at face value from someone w/ just a Bachelors in CJ)):
- It hinges on the 'reasonableness' of the actor's belief, both on the reasonableness of whatever the actor believed the circumstances were in the event (ie, the Paul Harvey "Rest of the Story" not included in the article), as well as the reasonableness of the actor's belief that force / deadly force was immediately necessary:
- Under TPC 9.43 (either Force, OR Deadly Force, to protect OTHERS property), if under the circumstances as you reasonably believe them to be, you may be justified in using the same level of force (Force, or Deadly Force) that you would have been justified in using if it was your own property.
In this case, TPC 9.43(2)(A) was satisfied by the neighbor asking the actor to check the property.
I'd assess that 'under the circumstances as the actor reasonably believed them to be...', it would have been a reasonable belief that the offender was committing burglary (as an example of the logic train leading to this being a reasonable belief, BUT not clearly articulated in the linked article if these were the facts in this case:
neighbor called & said "my home alarm sent me an alert, please check it out" + observing a damaged front door + observing a person not known to be authorized in the neighbor's home + that person with an arm load of valuables heading towards the door = circumstances that would lead a reasonable person to believe that a burglary was occurring))
- Under TPC 9.41 (Force to protect YOUR OWN property), you may be justified in using FORCE to prevent, or to recover the property IF immediately after the property was taken ((ie, "caught in the act")), or if in FRESH PURSUIT when the property was taken (("Fresh Pursuit" generally means "Without Delay"; being a subjective term, each court may interpret this differently unless there's a legal precedent or 'case law' that I'm not aware of that would hold lower courts to the same usage)).
Remember, the amount or level of force used MUST BE reasonable under the 'totality of the circumstances'. ((Using your Alpha-voice & putting a hand on the offender's chest; grabbing offender & holding down; clothes lining; leg sweep / arm bar / submission hold; flying Ninja side-kick; etc). Under TPC 9.41, you're not justified in using Deadly Force, so whatever force you use must not be reasonably likely to result in death or serious bodily injury. So, if a reasonable person would believe that your flying side kick could cause a substantial risk of broken ribs to the offender that's smaller in stature to you, you might want to keep your Ninja feet on the ground)).
Under TPC 9.41, I'd assess the actor would have been justified in using a reasonable amount of FORCE to stop the offender from absconding w/ the property. If the offender had dropped the property & ran off, the justification for pursuit wouldn't be under TPC 9.41, but perhaps under the Citizen's Arrest statute since a Felony had been committed in his presence as long as it was without delay; BUT using reasonable force only, NOT deadly force. ((Reminder: just because something may be legal / lawfully justified does not make it tactically sound... )).
- Under TPC 9.42 (Deadly Force to protect YOUR OWN property), Burglary is listed as one of the offenses where Deadly Force may be justified to either stop/prevent from happening, or to prevent the offender from absconding w/ the property. HOWEVER, its not a blanket justification. Like the other justifications, you must believe that level of force must be IMMEDIATLY NECESSARY to use. Also, under TPC 9.42(3) there's two other qualifiers separated by an "OR" (meaning that either 9.42(3)(A), or 9.42(3)(B)) that must be met in order for deadly force to be justified. Only one or the other needs to be satisfied; NOT both):
9.42(3)(A): land or property cannot be protected or recovered by any other means, OR
9.42)3)B): using less than deadly force would put you or someone else at a substantial risk of death or serious bodily injury ((ie, if you attempted to use just force to prevent the loss you would be at a substantial risk of getting killed, or sustaining serious bodily injuries
So, after my long winded dissertation, to answer your hypothetical question of((Serious Bodily Injury (https://statutes.capitol.texas.gov/Docs/PE/htm/PE.1.htm) : 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.
. It depends on how much force you 'reasonably believe' is immediately needed to prevent the burglar from absconding w/ your TV. What would be 'reasonable' would be difficult to say without knowing anything about you personally, such as your height/weight/body build/strength/age; preexisting physical conditions that could raise your risk to death/serious bodily injury if you use less than deadly force; skill level in grappling; etc, AND without knowing anything about the hypothetical offender (his or her height/weight/build/age); armed or unarmed status; and acting alone or w/ multiple threat actors. What I think is clear is that TPC 9.41 justifies you to use a reasonable amount of FORCE to prevent the burglar from offing w/ your TV. Texas places a premium on the property owner's rights, & acknowledges that property owners have a right to prevent someone from taking our property, absent a legal justification to take it such as a court order. And, if exercising the right to prevent someone from unlawfully interfering w/ our property by committing one of the acts listed in TPC 9.42 would put us in 'substantial danger' of death or serious bodily injury, or if there's absolutely no other way to protect that property from one of the acts listed in 9.42, then Texas provides a justification for using deadly force."You pull into your driveway and see a burglar coming out your front door carrying your TV. Can you do anything legally?
Those are the legal considerations as I see them, and it would be up to you to understand & stay on the right side of what the law provides, and your lawyer to argue the specifics to your case. The variable that's unfortunately very real is that prosecutors & judges are elected officials; there will be some who cherry pick the evidence presented to a Grand Jury to get an indictment vs presenting all the known facts, & notwithstanding what the law actually provides as a justification. What the Grand Jury hears, & what your jury hears at trial, may be very different 'facts'.
ETA: All of the above are only citing the Defense of Property statutes in the TPC. If you are using a lawful level of force, & the offender uses unlawful force against you, that would expand your justifications to Defense of Self / Others under TPC 9.31/9.32/9.33. But that's another dissertation....