TexasCHLforum.com

I'm not getting the logic as it applies to the penal code...or aviation for that matter.

If you meet conditions A, B, C, you definitely have no duty to do D (retreat)... You may have a duty to do D if you don't meet the conditions...

But that must be specified somewhere in statute, common law (where applicable), or case law. It is not automatically implied that you always have a duty to do D, only that you assuredly DON'T have a duty...

The law prohibits something....assaulting someone with deadly force, or killing someone. 9.32 provides a Defense.... If you raise it at trial, the prosecution must prove beyond a reasonable doubt, that:
...
(2) when and to the degree the actor (did not) reasonably believes the deadly force (was) 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.

You then even have section (d) which says...

(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.


You can CONSIDER it in determining (whether the actor) "reasonably believed" IF they don't meet all the criteria in section (c), but there is no direction that you must find the belief "unreasonable". The prosecution must establish (with certainty), to the finder of fact that your belief was NOT reasonable. Otherwise they have not refuted your Defense.

Whether you failed to retreat or not CAN go to determining your reasonableness IF you don't meet all the section (C) criteria, BUT doesn't absolve the prosecution of their requirement to additionally refute your section a(1) &(2) Defense.

thetexan wrote:...


I just watched a 2 hour NOVA or some show that was precisely on the history of the doctrine concerning retreat.

Yes. There has been a centuries old doctrine concerning this.

We can all read the words of the statute. One must not be trespassing, not be provoking, and not engaged in criminality If one does not have a duty to retreat before using deadly force.

tex

OK there is a multiple millennia old doctrine that says I may gouge someone's eye out if they gouged mine out... I watched a 5 part series on A&E about it.

But it's not relevant to the 9.32 statute. You are claiming that because the statute says that you DO NOT HAVE a duty to retreat...if you meet condition x, y, z...That you affirmatively DO HAVE a duty to retreat, if you don't meet all the conditions, before you may claim justification under 9.32.

Yet I see nothing in the plain words of the statute (that we can all read) that says such. There is case law in some states and maybe even in Texas that creates a DUTY TO RETREAT, but not necessarily for any or all of the reasons in the statute, which doesn't explicitly do so.


Hypothetical...you are shoplifting and the proprietor begins beating you with a baseball bat, so hard as to easily cause death. You have a duty to retreat, before striking back with enough force to be considered deadly?

A person is trespassing past a 30.05 sign by skateboarding in a no skateboarding posted shopping mall. An attacker begins shooting the individual with a .22 rifle. The (armed) individual retrieves her lawfully carried handgun and without retreating returns fire? Did she lose her justification under 9.32 because she first failed to retreat? Would she have been otherwise justified in not retreating if she wasn't skateboarding?

...that one IS REQUIRED to retreat before using deadly force if one is committing one of the listed conditions, namely, criminality, provocation, and trespass and one does not retreat BEFORE using the deadly force. This is in keeping with the centuries old doctrine of duty to retreat and its associated castle doctrine. Many states have nullified the retreat requirement by providing the enumerated nullifying conditions listed in this statute. Of course, in addition, your belief of immediate necessity will NOT be presumed reasonable by virtue of the trespass.

There is no centuries old doctrine in common law or case law, that one has the "DUTY TO RETREAT" in the face of an attack, prior to responding with deadly force. There is some case law that supports a duty to retreat, but the circumstances are not necessarily those that are specified in the statute. The statute states when there is affirmatively NO DUTY TO RETREAT. Only another statute, or case law relating to the specific circumstances (trespass by LTC) would specifically establish this duty. So you should be very careful when contemplating deadly force when violating 30.06, but there is currently no DUTY TO RETREAT. Perhaps a judge could find one...

thetexan wrote:

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.

Incorrect. The moment you pass a compliant, properly posted sign, you are committing a Class C Criminal Trespass, BY DEFINITION. Do not let the fact that refusing to thereafter leave after subsequently being told to leave thus elevating it to a Class A Criminal Trespass, BY DEFINITION, confuse you into believing that committing the first trespass by walking past the sign is a gimme. You do not get two chances. Walk past a sign and at the least you are a Class C criminal and then refuse to leave when asked and you become a Class A criminal.

And, being in a state of committing a criminal offense, you have to defend yourself resulting in shooting someone, you will not receive a legal presumption that your belief that deadly force was immediaitely necessary was "reasonable" and you will have to defend and justify that element at trial which could result in 20 years for manslaughter rather than acquittal.




In addition, since you are present at a location where you have no right to be, by virtue of the criminal trespass, you do not have the right to not retreat. You must retreat before engaging in deadly self-defense. 9.32c

tex

I don't think the LAW says you MUST retreat. Only that if you meet the criteria you statutorily DON'T have a duty to retreat.

There may however, be some previous case law that suggested or established a duty to retreat, as I think Charles had suggested was the reasoning behind the wording in 9.31/32.

Ruark wrote:

ScottDLS wrote:

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.

1. Technically it's TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN by the title of the statute.

2. This is a blanket statement that may or may not be true. Is carrying past a 30.06 sign illegal? Yes it is. Is it "carrying your firearm illegally" ? That would depend on your pre-paid legal service. But I'd argue that 46.035 sets out all the Unlawful Carry by LTC offenses. If you carried past 30.06are you "carrying illegally" and will you be defended by your pre-paid legal? I don't know, ask them. You will lose your presumption of reasonableness under 9.31/9.32 if you're carrying past a 30.06, or watering your lawn on the wrong day, when you defend yourself, and the prosecutor thinks to bring it up.

1. It may technically be "trespassing," but if you are caught carrying past an 06 sign, you aren't charged with trespassing, you're charged with something else. If I'm wrong about that, please enlighten me.

2. You're digging in the woodwork here. They will defend you only if you're carrying in a place where you can do so lawfully. They have no choice. If they would defend you if you carried past an 06 and shot somebody, people would just start ignoring 06's. This is based on a long discussion I had with the CEO of a major service.

1. You will be charged with violating TXPC 30.06, that's the statute you're violating. The title of the statute is TRESPASS BY A LTC. That's what it's called...TRESPASS, It's exactly one section higher than 30.05, The title of PC Chapter 30 is BURGLARY and CRIMINAL TRESPASS. So what else are you charged with for violating TXPC 30.06? Burglary?

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.

1. Technically it's TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN by the title of the statute.

2. This is a blanket statement that may or may not be true. Is carrying past a 30.06 sign illegal? Yes it is. Is it "carrying your firearm illegally" ? That would depend on your pre-paid legal service. But I'd argue that 46.035 sets out all the Unlawful Carry by LTC offenses. If you carried past 30.06are you "carrying illegally" and will you be defended by your pre-paid legal? I don't know, ask them. You will lose your presumption of reasonableness under 9.31/9.32 if you're carrying past a 30.06, or watering your lawn on the wrong day, when you defend yourself, and the prosecutor thinks to bring it up.

ETA: Corrected my statement about speeding since it's specifically mentioned 9.31/32