Spooky noises and things that go bump in the night

[david]

On Friday 11 January 2002 07:34 am, Jim Choate wrote:

> > In Texas deadly force is legally justified to prevent the imminent
> > commission of burglary.
>
> Actually it isn't.
>
> > This means you can shoot if someone is getting ready to break
> > in.  You don't have to wait until they are inside.
>
> Actualy they only time you can shoot somebody like this is AFTER DARK,
> there are other caviats as well.
>
If you will reread your own link to the Penal code you see that only theft 
and criminal mischief have the nighttime stipulation.

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. 

> > The Texas penal code
> > requires that you retreat instead of using deadly force if you have the
> > option unless you are using deadly force against someone who is
> > unlawfully entering your habitation.  In that case you don't have to
> > retreat even if you can.
>
> Better check that one again. 
>
>I've been burglarized three times.

The following statute is the one that says you have to retreat unless you are 
at home.  I am a Texas Department of Public Safety certified Concealed 
Handgun License instructor.  Commander Rodriquez, the DPS use of force 
instructor explained that "immenent commision" means someone is getting ready 
to do something.  The statutes say that you have to have a reasonable belief 
that someone is about to commit one of the above crimes and that deadly force 
is necessary to prevent it.  You don't even have to be right.  You just have 
to be able to explain to a jury why you belief was reaonable.  

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in 
using deadly force against another: 
~ ~ (1) if he would be justified in using force against the other under 
Section 9.31; 
~ ~ (2) if a reasonable person in the actor's situation would not have 
retreated; and 
~ ~ (3) when and to the degree he reasonably believes the deadly force is 
immediately necessary: 
~ ~ ~ (A) to protect himself 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) [added 9/1/95] The requirement imposed by Subsection (a)(2) does not 
apply to an actor who uses force against a person who is at the time of the 
use of force committing an offense of unlawful entry in the habitation of the 
actor.

> Can't booby trap either.
>

The following statute says that you can install devices if they don't cause 
death or serious bodily injury.  Punji sticks are verboten.  Rigged pepper 
spray dispensing devices are not.

Sec. 9.44. USE OF DEVICE TO PROTECT PROPERTY. The justification afforded by 
Sections 9.41 and 9.43 applies to the use of a device to protect land or 
tangible, movable property if: 
~ ~ (1) the device is not designed to cause, or known by the actor to create 
a substantial risk of causing, death or serious bodily injury; and 
~ ~ (2) use of the device is reasonable under all the circumstances as the 
actor reasonably believes them to be when he installs the device. 

David Neilson