Another Joe Horn thread, specific Penal Code content only please.

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TexasRifleman

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In the several locked threads people keep bringing up the "this was in the daytime so the law doesn't apply" argument.

Just to clear this up here is the Texas Penal Code relating to this.
I have placed some words in bold and it is necessary to have a rudimentary understanding of sentence structure and comma use.

This shooting does not have to happen at night to be justified.

I'm tired of some folks misquoting this statute because this incident happened in the daytime.

No debates on morality here, this is a grammar discussion please.

Does anyone have a valid reason why they think the nighttime restriction still applies?

§ 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.
Click to expand...


OK. The operative piece of this is:

(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;
Click to expand...

So we have a list of crimes here. ONLY theft and criminal mischief need to be occurring at night for this statute to apply. Arson, burglary, robbery, and aggravated robbery, as well as fleeing with property after committing them are not touched by the nighttime restriction. That ONLY applies to theft and criminal mischief. If it applied to all of them then the last 2 would not have a separate calling out of the nighttime restriction.

Breaking into an unoccupied house is Burglary, not theft.

There is no nighttime restriction to be within the Texas code here whatsoever .

Legal types, am I correct?
 
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I came in here to close this. You've constructed a narrow legal question that should . . . SHOULD be a focus of legal discussion only, so for now, I'm going to leave it here.

However, it should be clear to everyone that after TWO locked threads, arguments about who's going to hell and who should be shot and whose state is the biggest big meanie are off-limits. Several posters who participated in those other two threads have had their first and last warning, which means that if they decide to pop in here and make trouble, they're off THR. For good.

I hope that's clear enough.
 
Thanks Don.
I was really hoping to hear from some of the legal minded folks to make sure a) I was understanding it right and b) maybe get some of the others to rethink their position, at least on the legal side.

I understand locking it if it goes south.
 
I read it as allowing for deadly force to prevent burglary. If it meant that all of the listed were only valid during night-time, I would expect it to read something like this:

(A) to prevent the other's imminent commission of
arson, burglary, robbery, aggravated robbery, theft, or criminal mischief during the nighttime
Click to expand...

The grammar and redundancy of "during the nighttime" seems to suggest that arsonists, burglars, or robbers may be shot at any time.

Juries (based on composition/attitudes) can be a good or bad thing. If the jurors decided that what Joe Horn did was right, regardless of the law, it's well within their power to just say he's not a criminal. In this case, I see the law as backing Mr. Horn, and it appears jurors saw the same.
 
I keep trying to make this point, TR, but no one wants to listen to me. One of my best friends, a shooter and a lawyer, looked at it, argued with me, re-read it, then said, "Oh..."

The word "or" is especially important when discussing statutes.
 
Not hard to understand. The Grand Jury did. Everyone involved knew their own state law and acted accordingly. It has already been proven, through this man being found innocent(no billed, never even made it to trial), that he simply broke no laws.
 
You folks are looking at the wrong statute

§ 9.31. SELF-DEFENSE. (a) Except as provided in
Subsection (b), a person is justified in using force against
another when and to the degree the actor reasonably believes the
force is immediately necessary to protect the actor against the
other's use or attempted use of unlawful force. The actor's belief
that the force was immediately necessary as described by this
subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person
against whom the 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 aggravated kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery;
 
You're right, Guillermo. Self Defense was his defense.

We're just discussing the other statutes that could specifically have come into play had he been True Billed.
 
BTW

I confess to being one of the miscreants that Don mentioned.

I was baited into acting less than polite and therefore not of THR standards.

Thank you for allowing me to hijack this thread long enough to offer a public apology.
 
Yes Thumper,

"Self defense" as defined by the Texas Criminal Code goes beyond the defense of one's person, but also includes stopping a robber or burglar.

9:33 states that since he was justified for his property, he was justified for a 3rd party
 
You folks are looking at the wrong statute
Click to expand...


I dunno about that. The statute you quoted says :

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;
Click to expand...

The house next door was neither occupied nor the property of the actor.

Same with 9.33, the property was not occupied so it's not self defense yet.

This particular self defense statute doesn't apply I don't think.

At the point where Mr Horn stepped outside I think he was covered solely by the protection of PROPERTY statutes.

I DO think it became self defense once these guys stepped over onto Mr Horns yard but that's a different discussion.
 
Sorry Tex,

I was not clear

9.33 says that as long as he was legal under 9.31 or 9.32 he is legal for a 3rd party

He was clearly legal under 9.31
 
Occupation is not required...
Read down the statute

was committing or attempting to commit aggravated kidnapping, murder,sexual assault, aggravated sexual
assault, robbery, or aggravated robbery;
 
He claimed self defense because he occupied his own property and burglars enter it toward him. I thought anyway and that is when he became scared for his life and defended himself not neighbors property.
 
This was not robbery. This was burglary.

Robbery requires a victim to be present.

AFTER he went outside with the gun and they started towards him things change but until then, there is just a burglary in progress, not a robbery.

Disclaimer: I'm not arguing with you Guillermo, I'm really trying to work myself through all the verbage to figure out where he may or may not be covered by the statute.
 
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Unfortunately the inner sanctum of the Grand Jury are secret so we will never truly know what the reasoning for the no-bill was.

Fear for his life would also be a reasonable assumption and bolstered by the fact that one of the criminals had a pry bar of some sort.
 
You also have to take into account, that the two burglars had just come out of house with full bags.

How was Mr. Horn to know what was in them ( heavy blunt objects/ guns/ knives ) ? Heck, even bags can be used offensively, if of proper construction and content.

Mr. Horn also did not know of the two burglars might have had objects in their pockets that could have been used offensively.

"Fear or ones life" is quite acceptable in the face of these facts, imho.
 
Tex,

Just looked up the definition of Robbery in the Texas Penal Code.

I stand corrected.

On the other hand, did he know at the time the house was unoccupied?
 
Disclaimer: I'm not arguing with you Guillermo, I'm really trying to work myself through all the verbage to figure out where he may or may not be covered by the statute.
Click to expand...

I understand...no offense taken...not even close

This kind of discussion is interesting, entertaining and informative
 
I don't know, but the CCW instructors I've had pretty much washed over the "in the nighttime" phrases, like it's antiquated and out of date by interpretation I guess. It's not dwelled upon at any rate. Me, I don't want the legal hassles protecting property, but that's an individual decision and we have a good response time to 911 calls in this town.

Closed threads, eh? I wondered how this BBS would get on with the Joe Horn case, ROFL! People outside Texas don't really understand Texas law. It is quite different and we have more freedom to stop crime here even in defense of property, not that it's wise do get involved or anything. All I'll say on that, not looking to peeve anyone off. The man got no billed, so I'm thinkin' he was within his rights somehow, some way.

There are civilized discussions of it on some of the Texas boards. They did a poll in Houston one one of the TV channels and seems ol' Joe is a hero to 87 percent of the viewers. :D On subject, though, daytime, nighttime, if you just take the tack that no stuff is worth risking it over, you can defend life anytime, anywhere. I never quite figured out why they put that "in the nighttime" stuff in the code, though. What the heck were they thinkin'? But, then, technically, I think there's still a statute or amendment in the Texas constitution making it illegal to carry wire cutters. That stemmed from the range wars in the late 1800s as I understand it. Lots of retro-code in there that probably should be cleaned up just like the "traveling" thing that they finally took care of.
 
Occupy:

1. to take or fill up (space, time, etc.): I occupied my evenings reading novels.
2. to engage or employ the mind, energy, or attention of: Occupy the children with a game while I prepare dinner.
3. to be a resident or tenant of; dwell in: We occupied the same house for 20 years.
4. to take possession and control of (a place), as by military invasion.
5. to hold (a position, office, etc.).
–verb (used without object) 6. to take or hold possession.
Click to expand...

To say that it was occupied is to say that it was "held" not that someone was in there at the time of the burglary.

I hate to say this, but all of you are correct, it is abundently clear that the SPIRIT of the law was designed to protect life and property. Joe Horn falls squarly into the spirit of the law as written.
 
MCGunner,

"Theft during the nighttime," and "criminal mischief during the nighttime" are just additional things someone can get shot for in addition to "arson, burglary, robbery, [and] aggravated robbery" with regard to property crime.

The burglary stands alone just fine (note the commas, they are there for a reason).

Reread what Texas Rifleman said above. He explained it just fine:

So we have a list of crimes here. ONLY theft and criminal mischief need to be occurring at night for this statute to apply. Arson, burglary, robbery, and aggravated robbery, as well as fleeing with property after committing them are not touched by the nighttime restriction. That ONLY applies to theft and criminal mischief. If it applied to all of them then the last 2 would not have a separate calling out of the nighttime restriction.
Click to expand...
 
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