TexasCHLforum.com

Jumping Frog wrote:

C-dub wrote:Yeah, but if I'm carrying and spit on someone, since it is at minimum assault, won't I loose my right to the Castle Law because I started it?

Please don't call it "Castle Law". That term gets so ambiguously overused that it tends to confuse issues rather than clarify them. I think it is more useful to look at the actual concepts.

If the MO Road Rage case was assessed under these conditions, the slap/punch would count as (1)(A) entering "unlawfully and with force, the actor's occupied . . . vehicle" . However, if the defendant spit first he loses (C)(2) by provoking him and by spitting at all he commits an assault and loses (C)(3).

Thus the defendant's use of deadly force not presumed to be reasonable under Part (b), so he is back to a traditional affirmative defense under Part (a).

Duty to Retreat: Part (c) discusses the duty to retreat:

(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.

If the defendant committed an assault by spitting on the other person, then they lose the justification provided in Part (c). He should have driven his car away. Thus, when the traditional justification defense is presented under Part (a), he will also have to prove how he attempted to retreat and could not do so.

One common defense on duty to retreat by the way is that you could not do so safely. For example, if the other guy is shooting at you, it is hard to out run a bullet.

Anyway, if the facts as presented in the news article are accurate (which is a low probability anyway), this guy would have a hard time proving self defense under Texas law.

seamusTX wrote:Spitting on a person is at a minimum assault.

If party A spits on party B, it's done. B can't stop it by slapping A or anything else. From that point further action is escalation and revenge.

The problem with understanding this case from news reports is knowing what really happened, versus the he said-he said aspect. Anyone who has raised kids knows about "He started it." One or the other party may have been more in the wrong, but the DA can't prove it beyond a reasonable doubt.

In my opinion, stuff happens when you're driving. Sometimes it's purely accidental. Sometimes it's momentary inattention not amounting to negligence.

If no one gets hurt, mature adults shrug and continue on their way. Immature people shout, make gestures, stop, argue, fight, and shoot at each other.

- Jim

seamusTX wrote:P.S.: There is always more than one side to the story. The man who was shot wanted the grand jury to consider charges against the man who shot him. This was a day or two after the incident. The DA restated that the shooter was justified.

The biker admits to "slapping" the shooter in reaction to being spat upon.