Not so hypothetical question regarding right to defend...

[newlife12176]

I have always thought that a criminal breaking into a vehicle to commit theft was a felony. It's obviously burglary, but listed as burglary of a vehicle in chapter 30 of Texas Penal Code. The charge is only a class A misdemeanor. Burglary of a habitation is a felony and deadly force can be used to prevent the imminent commission of that.

I am not advocating using deadly force to stop burglary of a vehicle, but does anyone know why burglary of a habitation is a felony and burglary of a vehicle is only a misdemeanor?

Furthermore, why can you use deadly force for one and not the other? I really think they need to specify the differences in Sec 9.42 when they list burglary as something deadly force can be used to stop. I have always thought that was an option if someone was breaking into my car. That might confuse some folks. And I am fairly well versed in handgun laws and deadly force. However, I have never looked up burglary of a vehicle vs habitation. Glad I did!

[WildBill]

I have always thought that a criminal breaking into a vehicle to commit theft was a felony. It's obviously burglary, but listed as burglary of a vehicle in chapter 30 of Texas Penal Code. The charge is only a class A misdemeanor. Burglary of a habitation is a felony and deadly force can be used to prevent the imminent commission of that.

I am not advocating using deadly force to stop burglary of a vehicle, but does anyone know why burglary of a habitation is a felony and burglary of a vehicle is only a misdemeanor?

Furthermore, why can you use deadly force for one and not the other? I really think they need to specify the differences in Sec 9.42 when they list burglary as something deadly force can be used to stop. I have always thought that was an option if someone was breaking into my car. That might confuse some folks. And I am fairly well versed in handgun laws and deadly force. However, I have never looked up burglary of a vehicle vs habitation. Glad I did!

I believe it has its roots in common law.
I can think of two explanations
1 - The home is their castle. A vehicle doesn't have the same standing.
2 - A habitation is more likely to have people in it and the potential for harm is much greater.

[casp625]

I have always thought that a criminal breaking into a vehicle to commit theft was a felony. It's obviously burglary, but listed as burglary of a vehicle in chapter 30 of Texas Penal Code. The charge is only a class A misdemeanor. Burglary of a habitation is a felony and deadly force can be used to prevent the imminent commission of that.

I am not advocating using deadly force to stop burglary of a vehicle, but does anyone know why burglary of a habitation is a felony and burglary of a vehicle is only a misdemeanor?

Furthermore, why can you use deadly force for one and not the other? I really think they need to specify the differences in Sec 9.42 when they list burglary as something deadly force can be used to stop. I have always thought that was an option if someone was breaking into my car. That might confuse some folks. And I am fairly well versed in handgun laws and deadly force. However, I have never looked up burglary of a vehicle vs habitation. Glad I did!

I believe it has its roots in common law.
I can think of two explanations
1 - The home is their castle. A vehicle doesn't have the same standing.
2 - A habitation is more likely to have people in it and the potential for harm is much greater.

In regards to what I bolded above, the law does, however, allow for deadly force if the vehicle is occupied. Unoccupied vehicles, I believe, are then treated as, more or less, regular property.

[vjallen75]

In regards to what I bolded above, the law does, however, allow for deadly force if the vehicle is occupied. Unoccupied vehicles, I believe, are then treated as, more or less, regular property.

I do believe you are correct on the occupied vehicle part. IF someone tries to remove you from the vehicle or breaks in with you in it, by law you are justified using deadly force.

I believe burglary of a vehicle is only a misdemeanor because nobody is in the vehicle at the time of burglary, if they are in it things change.

IF I'm wrong please correct me.

V

[casp625]

In regards to what I bolded above, the law does, however, allow for deadly force if the vehicle is occupied. Unoccupied vehicles, I believe, are then treated as, more or less, regular property.

I do believe you are correct on the occupied vehicle part. IF someone tries to remove you from the vehicle or breaks in with you in it, by law you are justified using deadly force.

I believe burglary of a vehicle is only a misdemeanor because nobody is in the vehicle at the time of burglary, if they are in it things change.

IF I'm wrong please correct me.

V

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.

[locke_n_load]

You have the right to use force to keep someone from stealing your property, so you are covered to use the THREAT of deadly force, i.e. drawing your firearm. NOT the actual use of deadly force, unless certain conditions apply (items not covered by insurance/invaluable/your life or someone else's is in danger, nighttime, etc.). Read the penal code for those exceptions. I wouldn't risk going to jail over an unjustified use of deadly force for someone running off with my GPS/laptop/etc. after I told them to stop.
Now if they pull a weapon, charge you, etc., then have the right to use deadly force.
Home driveway, I believe the same rules apply.

I may be wrong but I don't believe insurance or value play a part in justification.

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.

It may be open to interpretation, but I believe some would believe that protected/recovered might also mean protected or replaceable via insurance. Or, if something is invaluable (family heirloom), that is not recoverable/replaceable. That's how my CHL instructor years ago explained it. I don't know if it's ever been clarified via case law.

[vjallen75]

In regards to what I bolded above, the law does, however, allow for deadly force if the vehicle is occupied. Unoccupied vehicles, I believe, are then treated as, more or less, regular property.

I do believe you are correct on the occupied vehicle part. IF someone tries to remove you from the vehicle or breaks in with you in it, by law you are justified using deadly force.

I believe burglary of a vehicle is only a misdemeanor because nobody is in the vehicle at the time of burglary, if they are in it things change.

IF I'm wrong please correct me.

V

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.

So as long as it is occupied, by law you are allowed to use deadly force. IF someone is trying to enter and/or remove you from the vehicle.

I meant to Quote newlife as well... oops.

Thanks casp for clarification

[Soccerdad1995]

You have the right to use force to keep someone from stealing your property, so you are covered to use the THREAT of deadly force, i.e. drawing your firearm. NOT the actual use of deadly force, unless certain conditions apply (items not covered by insurance/invaluable/your life or someone else's is in danger, nighttime, etc.). Read the penal code for those exceptions. I wouldn't risk going to jail over an unjustified use of deadly force for someone running off with my GPS/laptop/etc. after I told them to stop.
Now if they pull a weapon, charge you, etc., then have the right to use deadly force.
Home driveway, I believe the same rules apply.

I may be wrong but I don't believe insurance or value play a part in justification.

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.

It may be open to interpretation, but I believe some would believe that protected/recovered might also mean protected or replaceable via insurance. Or, if something is invaluable (family heirloom), that is not recoverable/replaceable. That's how my CHL instructor years ago explained it. I don't know if it's ever been clarified via case law.

So my rights change depending on whether I have bought insurance? If I file an insurance claim, my premiums go up, so I am paying for the replacement either way.

Also, does insurance typically cover all of the items in your vehicle, including high dollar value items, or do you need a rider for those similar to home owners insurance?

[Solaris]

[
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.

It may be open to interpretation, but I believe some would believe that protected/recovered might also mean protected or replaceable via insurance. Or, if something is invaluable (family heirloom), that is not recoverable/replaceable. That's how my CHL instructor years ago explained it. I don't know if it's ever been clarified via case law.

Your CHL instructor should stick to the DPS curriculum.

Insurance does NOT protect property, nor does it recover it.

i have fire insurance. I had a fire. My insurance did not protect the property that burned. It did not recover it either. Insurance did give me the financial means to find a suitable replacements, but not in all cases.

[WildBill]

I have always thought that a criminal breaking into a vehicle to commit theft was a felony. It's obviously burglary, but listed as burglary of a vehicle in chapter 30 of Texas Penal Code. The charge is only a class A misdemeanor. Burglary of a habitation is a felony and deadly force can be used to prevent the imminent commission of that.

I am not advocating using deadly force to stop burglary of a vehicle, but does anyone know why burglary of a habitation is a felony and burglary of a vehicle is only a misdemeanor?

Furthermore, why can you use deadly force for one and not the other? I really think they need to specify the differences in Sec 9.42 when they list burglary as something deadly force can be used to stop. I have always thought that was an option if someone was breaking into my car. That might confuse some folks. And I am fairly well versed in handgun laws and deadly force. However, I have never looked up burglary of a vehicle vs habitation. Glad I did!

I believe it has its roots in common law.
I can think of two explanations
1 - The home is their castle. A vehicle doesn't have the same standing.
2 - A habitation is more likely to have people in it and the potential for harm is much greater.

In regards to what I bolded above, the law does, however, allow for deadly force if the vehicle is occupied. Unoccupied vehicles, I believe, are then treated as, more or less, regular property.

Just because someone is in a vehicle does not turn it into a "habitation".
If the vehicle is an RV or trailer that is different.
In my opinion, I consider anyone trying to break into my vehicle while I am inside to be an attack on me, not just the car.

Sec. 30.01. DEFINITIONS. In this chapter:
(1) "Habitation" means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:
(A) each separately secured or occupied portion of the structure or vehicle; and
(B) each structure appurtenant to or connected with the structure or vehicle.
(2) "Building" means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.
(3) "Vehicle" includes any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of
commerce or transportation, except such devices as are classified as "habitation."

[casp625]

Right, and the PC justifies it as a defense of person, rather than defense of property. I'm getting a little bit off topic since this started off as protecting ones property.

[locke_n_load]

[
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.

It may be open to interpretation, but I believe some would believe that protected/recovered might also mean protected or replaceable via insurance. Or, if something is invaluable (family heirloom), that is not recoverable/replaceable. That's how my CHL instructor years ago explained it. I don't know if it's ever been clarified via case law.

Your CHL instructor should stick to the DPS curriculum.

Insurance does NOT protect property, nor does it recover it.

i have fire insurance. I had a fire. My insurance did not protect the property that burned. It did not recover it either. Insurance did give me the financial means to find a suitable replacements, but not in all cases.

Hopefully I will be taking my LTC instructor course this year, so I can see what the course states too. I will probably ask if they don't explicitly state.

[srothstein]

Furthermore, why can you use deadly force for one and not the other? I really think they need to specify the differences in Sec 9.42 when they list burglary as something deadly force can be used to stop.

They are being very specific in section 9.42 when they tell you which crimes justify deadly force. The crimes listed are very specific sections. Burglary is the title of section 30.02 and it means any offense under that section.

The part that is confusing to many is learning how to read the law. While burglary means a lot of things to you or me, in the law it refers to a specific section. The proof (or hint I use when reading the law) is to look at the other offenses listed. For example, in this section, it lists specifically robbery and aggravated robbery. If the term robbery was intended to mean any type of robbery, they would not have needed to include the term aggravated robbery. So, this makes the burglary very specific also and must refer to only 30.02 and not all of the burglary offenses like burglary of a vehicle or of a coin operated machine.

As an aside, I strongly suggest reading the other referenced sections. Kidnapping might not mean just what you thought it did, either. Some of the others might also be a little different too.

[newlife12176]

Steve,
Thank you. I understand what you are saying. It helps to look at it like you are referring. I just associated "burglary" in my mind to multiple forms of burglary such as burglary of a vehicle or habitation. I didn't consider the specific crime as it is listed in the penal code. That helps. And now that I have that clarification, I agree it is very specific.

[thetexan]

Scenario is this- LTC holder walks out of a local business (where carry is allowed) to find a man breaking into their vehicle. Holder legally allowed to pull their weapon to stop this crime in progress? Or to shoot if they refuse to comply?

What about same exact scenario in your home driveway?

In the parking lot...prior to the theft being consummated..."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." 9.41

to use deadly force in the parking lot prior to the theft being consummated...

(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 (note that burglary is different from burglary of a vehicle under Texa PC 30.03...this statute refers to burglary...also the theft trigger must be in the nighttime not daytime)
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the night¬time from escaping with the property; and (Note that this is after the consummation of the crime)
(3) he reasonably believes (this is an incredibly important ingredient) 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.

As to pulling the gun and pointing it at the perp 46.035 states..."(h) It is a defense to prosecution under Subsection (a), (a-1), (a-2), or (a-3) that
the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of force or deadly force under Chapter 9."

So assuming your situation meets the requirements of 9.41 or 9.42, which only you can determine as it relates to immediate necessity and reasonable belief, you may display your gun without violating the intentional display rule.

As to shooting them if they refuse to comply with a command by you to stop...you must "...REASONABLY BELIEVE 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.[/u]

That's a substantial burden on you to defend in a trial!

As to the same scenario in your own driveway...since the crime is not against your occupied vehicle, which would legally impute reasonableness to your belief of immediate necessity as per 9.32 the controlling statute would be 9.41 and 9.42 making the two scenarios the same.

tex