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AFCop wrote:Thirdly, doesn't Castle Doctrine incorporate your vehicle with the same sanctity as your home

Only if you are in the vehicle at the time.

... knew or had reason to believe that the person against whom the deadly 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;

- Jim

Thank you SeamusTX for the clarification.

Bryan

AFCop wrote: txflyer,

What article, could you link please.

Secondly if TPC 9.42 lists burglary, wouldn't it be safe to say the legislative intent was to cover all burglaries or else it could have specifically stated arson, burglary (of a habitat), etc, etc.

That was the question that came to my mind. But Taylor v United States seems to indicate that if burglary is being used as a "generic" term then it applies only to buildings with intent to commit another crime. Since the legislature used what I think is a generic term of burglary in 9.42 Taylor may box us into the "generic" definition that says only burglary of a building applies.

Again, IANAL, and I could be misreading the Supreme Court decision. So if a real lawyer could give us a better reading of Texas 9.42 with Taylor in mind, I would love to hear it. But in the meantime, I think I'll err on the side of safety and not shoot the bad guy if his crime is burglary of a vehicle (unless I'm in the vehicle).

http://en.wikipedia.org/wiki/Taylor_v._United_States" onclick="window.open(this.href);return false;

I am not a lawyer either, but here's my thinking:

The Taylor decision applies to federal sentencing guidelines when a crime is not defined in federal law (which burglary is not).

Burglary is defined right there in the Texas penal code along with the justifications for the use of force, so I don't think Taylor would apply.

I noted earlier that unaggravated burglary of a motor vehicle is a misdemeanor, unlike the other justifications for deadly force (attempted murder, rape, robbery, etc.), which are felonies. That indicates that the legislature considers burglary of a vehicle a lesser offense. Burglary of a vehicle does not put the life of the vehicle owner in immediate danger, as the other justifications do.

The law is full of these ambiguities; and if things go badly, you run the risk of being prosecuted and having your name attached to an appeals court decision for all time.

- Jim

I'm a real estate broker and I just reviewed the standard Texas Association of REALTORs(R) Lease that is widely used for leasing duplexes and single-family homes. There is no mention of weapons in the lease although it leaves a broad opening for "illegal activities" and "nuisances."

I manage a few properties and I can't imagine evicting someone for defending him or herself.

Tom

Thanks SeamusTX for the insight and explanation, makes sense.

Bryan

seamusTX wrote:Your may be right. I had forgotten or never knew that Texas has a crime of burglary of a vehicle;

§ 30.04. BURGLARY OF VEHICLES. (a) A person commits an offense if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft.

Unlike burglary of a habitation, this can be a misdemeanor under some circumstances.

I wonder if there is any case law or history of burglary of a vehicle being used as a justification for the use of deadly force.

- Jim

I don't believe there was any case law, but there was a guy who shot and killed a guy attempting to repossess his car. Aparently the guy thought his car was being stolen and he shot and killed the repo guy. The guy who did the shooting walked ( no billed if I remember correctly. ) This was out of Harris County,

I vaguely remember that. It was at night, so we don't know if the grand jury took into account theft during the night time.

There have been other car burglaries where the thief pointed something shiny at the vehicle owner, which takes it to a different level.

- Jim

On whether or not burglary includes of a vehicle, I am going to weigh in with Jim that it does not. If you look at the list of crimes, it mentions both robbery and aggravated robbery. These are titles of specific sections of the penal code (29.02 and 29.03 respectively). Burglary is also the exact title of a specific section (30.02). Burglary of vehicles is section 30.04.

So, based on this, I think the court would see it as the specific sections named. But all this is a guess until a good lawyer gets it into the right court. And even then, as Charles pointed out in another thread, it may depend on how the jury feels about the defendant too.

I support the shooting, and wish that the complex would "see clearly" concerning the lack of safety that they provide, which in turn forces it's tenants to arm themselves and ultimately creates a fertile breeding ground for such scumbags.....i hate criminals

seamusTX wrote:I am not a lawyer either, but here's my thinking:

The Taylor decision applies to federal sentencing guidelines when a crime is not defined in federal law (which burglary is not).

Burglary is defined right there in the Texas penal code along with the justifications for the use of force, so I don't think Taylor would apply.

I noted earlier that unaggravated burglary of a motor vehicle is a misdemeanor, unlike the other justifications for deadly force (attempted murder, rape, robbery, etc.), which are felonies. That indicates that the legislature considers burglary of a vehicle a lesser offense. Burglary of a vehicle does not put the life of the vehicle owner in immediate danger, as the other justifications do.

The law is full of these ambiguities; and if things go badly, you run the risk of being prosecuted and having your name attached to an appeals court decision for all time.

- Jim

Agreed Taylor applies to sentencing, but without other case law I would think a good lawyer might be able to extrapolate it for use in prosecution. Maybe not. Again, I'm not schooled in the lawyerly arts. I'm just using the logic I learned in school when taking all those math classes.

Any way as pointed out, the title of the sections for burglary and burglary of a vehicle may provide us with the intent of 4.92. So given that, it's probably best to avoid shooting someone for burglary of a vehicle unless it some how turns into a threat against your life or someone else's life.

I think the Landlord is getting a "kickback" from the bad guys!

Now on a serious note: Correct me if I am wrong, but if it is your property (I know apartment would probably not apply here) and it is night time, then you can use deadly force if there is ANY criminal mischief involved? My CHL instructor used the example of Cheerleaders "TPing" one of his trees the night before his son's football games gives him the right to use deadly force.

Me I would worry if they were all indestructable cheerleaders and come get revenge :). Maybe that wouldn't be so bad though haha.

Nintao wrote:Now on a serious note: Correct me if I am wrong, but if it is your property (I know apartment would probably not apply here) and it is night time, then you can use deadly force if there is ANY criminal mischief involved? My CHL instructor used the example of Cheerleaders "TPing" one of his trees the night before his son's football games gives him the right to use deadly force.

There's no minimu damage amount specified anywhere that I've seen. Don't try for headshots on the cheerleaders unless you have AP rifle ammunition, though; nothing else can get through that much makeup and hairspray.

I am truly concerned that people are forgetting "when and to the degree he reasonably believes the deadly
force is immediately necessary..."

If kids are TPing your house, a water hose is likely to shoo them off and save you a lot of trouble down the road.

A grand jury has a lot of opportunity to interpret reasonably and immediately necessary in a way that may not be in your favor. The fact that a particular grand jury ruled in favor of a homeowner at some point does not guarantee that another grand jury will do the same.

- Jim

seamusTX wrote:A grand jury has a lot of opportunity to interpret reasonably and immediately necessary in a way that may not be in your favor. The fact that a particular grand jury ruled in favor of a homeowner at some point does not guarantee that another grand jury will do the same.

- Jim