Tyler photographer kills intruder

[Tom]

http://www.dfw.com/mld/dfw/16000715.htm

A 22-year-old Fort Worth man died early Saturday in Tyler after he kicked in a door and was shot multiple times by the homeowner, police said.

Justin A. Herrera, 22, a University of Texas at Tyler student, died at the East Texas Medical Center from gunshot wounds to the chest, Tyler police said.

Robert Delk, 63, told police that he and his wife were awakened about 4:30 a.m. by banging on their door, said Don Martin, a Tyler police spokesman. As a precaution, Delk grabbed his .44-caliber Magnum, and as Delk approached the door, Herrera kicked it in.

"He was shot more than once as he came into the house," Martin said. He said he did not know how far into the house Herrera had gotten.

After being shot, Herrera left the house and collapsed in the driveway, Martin said.

Herrera, who public records show is from southeast Fort Worth, had no connections with Delk, who owns a photography company in Tyler. Police are still attempting to determine why Herrera kicked in the door.

"We don't know if he was mistaken about whose house he was at or what," Martin said. "The circumstances are still unclear."

Police are trying to determine why Herrera was in the neighborhood and why he was wearing only jeans, Martin said.

"That's the one clue that is strange," Martin said. "It's not the type of clothing that you would be wandering around in on a cold night."

According to public records, Herrera has been involved in criminal activity before and has served time in prison. His most recent sentence was three months on a criminal mischief charge. He had also been in prison for aggravated assault with a deadly weapon, burglary of a vehicle and two misdemeanor charges of driving while intoxicated.

Police have not located a vehicle at the scene that has ties to Herrera, and they do not know how Herrera got to Delk's house, which is more than three miles from Herrera's apartment, Martin said.

Investigators will present the case to a grand jury, but Martin said it was too early to tell whether charges would be brought against Delk.

"This isn't something we normally see," Martin said.





One less bad guy for the rest of us to deal with.

[Daniel Bates]

The headline should read "Tyler Photographer Shoots Intruder: Intruder Dies of Shock".

[rages4calm]

Yes, I heard this on the radio earlier, that is pretty damn weird and screwed up.

[VisualOddity]

Werd

[Tom]

Originally Posted by Daniel Bates

The headline should read "Tyler Photographer Shoots Intruder: Intruder Dies of Shock".

Whether he died of the bullet stopping his heart, shock from being shot, blood loss or exposure from losing blood and being outside, he was still killed by the shooter. Had it been in cold blood - he would be prosecuted accordingly. The shooter killed him.

[VisualOddity]

If the facts the article gave are correct, he shouldn't be in any trouble at all. In TX, you have the right to use deadly force in that situation. That is why we have the best all around gun laws in the country. We have the right to defend ourselves to any degree the situation calls for. It's a great thing. I assure you, if someone breaks into my house where my family could be in danger, I have 3 words for them: "Rest In Peace"...

[johnastovall]

Looks like a very clean and legal under Texas Law of the correct use of deadly force. Any rational grand jury should deliver a no-bill in about a New York minute.

I would be interested in what the drug test of the home intruder will show.

[DEMDeepEllumMusic]

Once he crossed that threshold he set his own fate.
http://www.delkphoto.com/

[Toad]

Just in case any of you were curious about the actual laws regarding deadly force in Texas;

Texas Penal Code

§ 9.41. Protection of One's Own Property
(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

§ 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.

§ 9.43. Protection of Third Person's Property
A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his protection of the land or property;
(B) he has a legal duty to protect the third person's land or property; or
(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

[TxLerman]

I'm no expert on the law, but I think the thorny issue here is that the man died outside of the house. I heard that in Texas, if the culprit/dead person dies outside of the home, you to prove that they were in the house. Of course the remains of a kicked-in door are pretty convincing and the fact that the culprit/dead person was not an invited guest, but a person with a history of legal troubles should all play into the homeowners favor.

[VisualOddity]

Werd...

[johnastovall]

Originally Posted by TxLerman

I'm no expert on the law, but I think the thorny issue here is that the man died outside of the house. I heard that in Texas, if the culprit/dead person dies outside of the home, you to prove that they were in the house. Of course the remains of a kicked-in door are pretty convincing and the fact that the culprit/dead person was not an invited guest, but a person with a history of legal troubles should all play into the homeowners favor.

Not required under Texas law. You can even shoot them outside the home if it's night. It's all spelled out in section 9 of the Penal Code. I used to work with people getting CHL's and have lobbied in the past regarding Current Texas CHL and Deadly force laws.

§ 9.42. DEADLY[0] FORCE[0] TO PROTECT PROPERTY. A person is
justified in using deadly[0] force[0] against another to protect land or
tangible, movable property:
(1) if he would be justified in using force[0] against the
other under Section 9.41; and
(2) when and to the degree he reasonably believes the
deadly[0] force[0] 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[0] other than deadly[0] force[0] to
protect or recover the land or property would expose the actor or
another to a substantial risk of death or serious bodily injury.

You can see all of section 9 here.

[johnastovall]

Sorry double post. Need to learn to delet them.

[Wes]

Originally Posted by Thomas Campbell

"He was shot more than once as he came into the house," Martin said. He said he did not know how far into the house Herrera had gotten.

Good grief! He was shot multiple times with a .44 magnum!!! My guess is that he didn't make it past the front door. According to Dirty Harry, the .44 magnum is the most powerful handgun in the world. I guess this punk didn't feel very lucky.

[Duffy Pratt]

I don't suppose its ok to feel sorry both for the guy who got killed and also sorry for the guy who shot him. Even if the shooter was within his rights (and he probably was), its nothing to be happy about.

As for the facts, the one thing you can be pretty sure of is that the newspaper got it wrong, at least in some of the important details. They almost always do.

Duffy