Joe Horn

[Kevin]

I read the statute wrong. 9.43 -- see the "and" after the first paragraph, and note that the rest of the elements are "or" sorts of elements. So you only need one of these:


(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.

-- I think the bolded one works. It all does come to a question as to whether his belief that deadly force was immediately necessary... but we're dealing with Texas here folks

Criminal mischief in the night....

[Drolefille]

(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.

I don't think either A or B are viable here, although again, a lie is all that's required to get him off. He knew the police were on the way so A is not valid. B requires some sort of threat to himself that would suggest that deadly force is necessary. If he saw the burglars carrying a gun for example.

ETA: Also, I don't think this happened at night. That's a BIG issue here. Reports said about 2 in the afternoon I think? I'm trying to find that.

[DaemonSeid]

Originally Posted by Kevin

I read the statute wrong. 9.43 -- see the "and" after the first paragraph, and note that the rest of the elements are "or" sorts of elements. So you only need one of these:


(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.

-- I think the bolded one works. It all does come to a question as to whether his belief that deadly force was immediately necessary... but we're dealing with Texas here folks

Criminal mischief in the night....

wait...was it at night? I thought this happened in broad daylight.....the deadly force....well again...that may work against him since we come back to the 911 ops telling him several times not to discharge his weapon....interesting...

[Kevin]

Originally Posted by DaemonSeid

wait...was it at night? I thought this happened in broad daylight.....the deadly force....well again...that may work against him since we come back to the 911 ops telling him several times not to discharge his weapon....interesting...

I only say criminal mischief during the nighttime to illustrate how low the standard is. In this case, I believe burglary was the crime. That used to have an element of it being nighttime, but not really anymore.

[Kevin]

Originally Posted by DaemonSeid

wait...was it at night? I thought this happened in broad daylight.....the deadly force....well again...that may work against him since we come back to the 911 ops telling him several times not to discharge his weapon....interesting...

I'd like to direct your attention to the "or" following (A).

Anything under B is unnecessary if A is met. The converse is also true.

Also, from a practical standpoint, try picking a jury that's not going to hang on this case

No charges will be filed.

[Drolefille]

Originally Posted by Kevin

I'd like to direct your attention to the "or" following (A).

Anything under B is unnecessary if A is met. The converse is also true.

Also, from a practical standpoint, try picking a jury that's not going to hang on this case

No charges will be filed.

The real question is, is it "burglary", "robbery", or "theft in the nighttime" OR "burglary", "robbery", or "theft" in the nighttime.

[Kevin]

Originally Posted by Drolefille

The real question is, is it "burglary", "robbery", or "theft in the nighttime" OR "burglary", "robbery", or "theft" in the nighttime.

Since it lists criminal mischief during the nighttime as well as theft during the nighttime as two separate things, I don't see "during the nighttime" applying to the rest of the passage. If your proposed construction were true, the first "during the nighttime" would be redundant.

I'll bet if you go to the Texas Penal Code, you'll find that those two things are distinct crimes.

[Drolefille]

Originally Posted by Kevin

Since it lists criminal mischief during the nighttime as well as theft during the nighttime as two separate things, I don't see "during the nighttime" applying to the rest of the passage. If your proposed construction were true, the first "during the nighttime" would be redundant.

I'll bet if you go to the Texas Penal Code, you'll find that those two things are distinct crimes.

Quite possibly, but I'm not that bored today I have to read enough laws and codes at work.

I'm still not convinced though. Particularly since his story does NOT mesh with the 911 call, and he (or his attorney) doesn't claim to be defending his neighbor's property but his own.