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....
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