Keith B wrote: tbrown wrote:
It happened Sunday around 3:00 a.m.
Police said no one will be charged in the shooting.
Police said no one will be charged in the shooting. But the case is being referred to the Tarrant County District Attorney's Office
Burglary of an unoccupied motor vehicle is usually treated differently than actual theft or burglary of a habitation. For theft, there has to be intent shown that the reason they were breaking into the vehicle was to steal it or something in it. And burglary in the penal code is defined only for a habitation or building, not a vehicle (separate section). So, while nighttime does play into it, the guy was not necessarily committing one of the offense listed in penal code 9 for justification of use of deadly force.
So, will be interesting to see how the prosecutor handles this one.
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 Check
(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.
Sec. 28.03. CRIMINAL MISCHIEF. (a) A person commits an offense if, without the effective consent of the owner:
(1) he intentionally or knowingly damages or destroys the tangible property of the owner;
(2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or
(3) he intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner.
Sec. 31.03. THEFT. (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner's effective consent;
So if the vehicle is being broken into, I would think that a reasonable person would believe that theft (at night time) is going on here.
If not, isn't the vehicle getting damaged via break-in, in which criminal mischief at night time would apply? How would it not apply? I see nothing about the classification of the crime (misdemeanor, felony, etc.) anywhere in the justification for deadly force in those instances. Not trying to be argumentative, just trying to get a better understanding of the law.
"They that would give up Essential Liberty, for a little temporary Safety, deserve neither Liberty nor Safety"
EDC - Glock 26 Gen IV
CHL Holder since 10/08