Houston man shoots two burglars

[ElanR]

Originally Posted by wjmphoto

(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


(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

Josh, thanks for posting this and I hope you don't mind me isolating this part. (highlights added by me)

In a nutshell, this guy was not defending his property and was actually committing the crime of trespassing on his neighbor's property to shoot these criminals. On its face, he will be convicted of manslaughter with some mitigating circumstances. The whole scene changes if the neighbor steps in and credibly states that he assigned this guy to watch over his property. In that case, he becomes an agent for the neighbor and is allowed to use the same level of force to protect the neighbor's property as he would his own, and of course, he would not be trespassing. This would then become a justifiable homicide.

This is how I understand the law. I'm not an attorney.

[crazeazn]

my house got broken into a couple months back, worst feeling in the world. no way in the world the cops would catch the perps though, response time is slow. robbers know this and abuse it b/c they know we will make claims on insurance. while this guy is at the extreme end of things, i'm glad he killed the bastards. the hazy end of things is b/c its not HIS property.

[mjdmike]

Originally Posted by ElanR

Josh, thanks for posting this and I hope you don't mind me isolating this part. (highlights added by me)

In a nutshell, this guy was not defending his property and was actually committing the crime of trespassing on his neighbor's property to shoot these criminals. On its face, he will be convicted of manslaughter with some mitigating circumstances. The whole scene changes if the neighbor steps in and credibly states that he assigned this guy to watch over his property. In that case, he becomes an agent for the neighbor and is allowed to use the same level of force to protect the neighbor's property as he would his own, and of course, he would not be trespassing. This would then become a justifiable homicide.

This is how I understand the law. I'm not an attorney.

I'm not an attorney, but I read it differently. Also, the man was in his own front yard.

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON.

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor 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) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) 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; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

[Wes]

Kinda gives new meaning to "Neighborhood Watch", doesn't it?

To be honest, I'm really not sure how to feel about this one. I can see how the killings would weigh heavily on the shooter. It should. The redneck in me agrees with whoever said, "2 less bad guys". The Christian in me has a problem with a citizen doing what should only be in the purview of the government. I dunno. It's a tough call. I don't know if I would use deadly force to protect stuff. The lives of my family and I, absolutely. But stuff can be replaced.

[Duffy Pratt]

Mike:

You can't go as far as you went in looking at statutes, and then decide that you got the answer. Here is the definition of Robbery in Texas:

§ 29.02. ROBBERY. (a) A person commits an offense if, in
the course of committing theft as defined in Chapter 31 and with
intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes
bodily injury to another; or
(2) intentionally or knowingly threatens or places
another in fear of imminent bodily injury or death.
(b) An offense under this section is a felony of the second
degree.

From what, I've read about this case, its unlikely that these two guys were committing Robbery, as defined in Texas. Thus, the killer will probably not be able to use that part of the Castle laws as a defense.

If the Grand Jury decides to charge this guy, I think he will probably be convicted of manslaughter or murder. From the tapes, I would lean towards murder.

Not only that, but I think that its the right policy. In this case, the guy may have been absolutely right about what was going on. But I have broken into a friend's house before, at his own request. I had a friend who was out of town and had decided to get married really fast. He needed his tuxedo shipped to him, and his house was locked up. He told me to break in through the back and take it. I did it in the middle of the day. I'd hate to think that a stranger could have lawfully shot me for that. I wouldn't mind so much having the cops called on me, because it was an easy enough thing to explain.

Also, I'm not sure if the net result of this sort of behavior is to make it less likely for burglars to break into houses (probably some), or to make it more likely that they go into the houses heavily armed and pre-disposed to shoot (also probably some). So, the vigilante behavior may make people safer or less safe, depending on how determined the theives are.

Duffy

[ElanR]

Mike, my understanding is that he was defending property, not person, and that this took place at his neighbor's yard. If either is not the case then things are obviously different. As I understand the events, he was in the safety of his home and made the choice to exit that safety and confront criminals who were not on his property at the time he made that choice.

I listened to some contentious portion of the 911 recording and based on what I heard, it should be pretty easy to make the case that the use of force was premeditated. If not for the recording, he could -- after the fact -- claim that he just heard a noise, grabbed his gun and went out to check things out, ran into the criminals, feared for his life and killed them in self defense. He cannot make that claim now.

[Joe A.]

Originally Posted by Gambit

So you've never made a serious decision under pressure and then regretted it later? Lucky you...

I agree that this case is riding the limits of castle doctrine or self-defense. But it's equally true that the police don't usually arrive in time to prevent the loss of property and also often don't/can't recover it. I don't mean to denigrate police officers - most work very hard and deserve much more than they typically get, but if the law enforcement system for whatever reason is ineffective at protecting people and their property, and no one else is allowed to take action, the rule of law is small comfort.

You make good points. As to the decision of being under pressure and making a questionable decision, yes, I've been there and guess most people who have a few years on them have as well. In this case, though, Mr. Horn was talking to 911 who kept urging him to stay inside and not shoot anybody. Despite that advice, he fired anyway. My point is, he wasn't in a corner when he made the decision. He probably was frustrated with all the crime in today's society and saw an opportunity to stop at least one burglary by shooting DeJesus and Ortiz. I'm sure he regrets it happened, as do the families of the deceased.

I wish him the best.

[RhondaKH]

.

[Concisus Cognatus]

Originally Posted by KJ Smith

There was the one in the late 80's in Pleasant Grove (Dallas).

Guy's house had been broken into several times, He took to going by his house during his lunch hour. Popped two guys coming out his bedroom window, from his truck, with a deer rifle,

I don't remember the outcome. seemed a little more justifiable.

Kevin

If memory serves me right(can't always count on it these days), the incident you refer to was an elderly black guy and initially he was charged for shooting those guys. Can't remember whether it went to trial, but, it I think he was eventually no-billed after a community uproar.

[*Mike*]

The psycho should be locked up for life. And if he goes to a church, he should also be excommunicated.

"...no jury will convict the guy." That's just sad.

[CincoJoe]

Originally Posted by CobyPhoto

This should play out very interesting...

If those two were there with permission and there was a mistake being made...they probably would have stopped, talked to the guy and there would have been NO shooting, at least got on the ground and let the police get there to sort it out.

We will never really know, as there will only be the old man's side of the story on how the two reacted when the pointed the gun at them. Faced with someone sticking a shotgun in my face, due to the fact they percieved me as a threat...OF ANY KIND, I am getting on the ground in order to NOT provoke that person any further.

This is another interesting set of circumstances that will be worth watching the outcome.

I do know this...criminals are getting away with too much any more and something needs to be done. I think that is a pretty general feeling among citizens of Houston.

CJ

If some nut case with a shot gun in his hands came out would you stop and talk to him??? I'm not saying that they should have been there, I'm saying as an example what if someone should have been there or was allowed to be there? We can't have neighbors walking outside with shotguns confronting people.

[KJ Smith]

Originally Posted by nikkonhobbyman

If memory serves me right(can't always count on it these days),

Yea, thats my problem also.

Kevin

[Shane]

What part of the law does everyone not understand???
==================
He was well within his rights to shoot the scumbags the moment they stepped towards him! If they would have stopped (like you can hear him asking them to on the tape), they would not have gotten shot.

He will not even get indicted, so there will be no trial, no conviction and no punishment. What grand jury in their right mind is going to indict a guy that shot 2 guys robbing a house - who cares if was his house or his neighbor's house? In my mind, I would be thinking . . . "if I let them go now, my house could be next" . . . and for those of you that have never been robbed, it is not a fun feeling to come home and find half your stuff missing (I got robbed in college - it stinks).

So, bad guys listen up - it is very simple - if you don't want to get shot, don't rob houses or commit any of the other offenses listed above because in Texas, we have the right to shoot!

[*Mike*]

Originally Posted by Shane

In my mind, I would be thinking . . . "if I let them go now, my house could be next"

This would be part of the problem... ethical and moral decisions are not motivated by fear, or even self-interest.

Originally Posted by Shane

What part of the law does everyone not understand???

The part that equates a stolen stereo with the loss of life.

[dfwlens]

Originally Posted by cjphotog

This guy is going to prison.

Correct me if I am wrong, but the only time you use deadly force is if your life is in IMMEDIATE danger.

§ 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.


A real question will be did the house's owner ask him to keep eye on place, were friends, or more likely, whether he will say he asked the guy to keep eye on place.

A person is authorized in using force, including deadly force, in an attempt to arrest a person who comits a felony in their presence.

A person is authorized to use force, including deadly force, to apprehend a felon they are trying to arrest if that it the only means to do so. That aspect of Texas law was limited for police by the Supreme Court in Tennessee v Garner a few years ago, but the Court set the limits on government actors to effect an arrest, not private citizens. For government actors, the Court added the requirement that the felons escape must present an imminent danger to the public if let escape.

Granted, Ive not listened to tapes and if what I read here is correct he made some statements that give question to his intentions. However, his lawyer will argue, probably sucessfully, that he was irate and not articulating his intentions correctly. His lawyer has already turned his tone 180 degrees.

It will also turn on whether eyewitnesses say they guys were hands up surrendering and were executed. To some extent, that can probably be answered by autopsy.

A dispatcher has no authority to limit a citizens right to apprehend and use force if necessary against a person who has commited a felony in their presence that they are trying to 'citizen arrest.' The dispatcher was doing what she was trained to do, and was looking out for the callers safety by admonishing him not to be outside with a gun when the police rolled up. If that was the case, not only are the cops faced with an unknown man with gun they have to deal with, but when dealing with him, they are distracted from real bad guys during that time. Thats not even mentioning the good guy with gun that gets shot by the police every so often by mistake. So from a policy standpoint, she was doing exactly what she was supposed to.

The fact that he was not arrested at the scene and made to post a (probably very low) bond is a very telling fact in the way the PD will probably proceed with this.

Barring any surprise witnesses that he executed them while they were surrendering, barring any autopsy surprises, barring him going Exorcist while testifiying in front of Grand Jury, I stand by my prediction the guy will not be indicted.... unless the homeowner wants him to be.


We can talk about what he should do all day long, and all point in that respect are valid, but the ultimate outcome in a court of law is what you have a legal duty to do or NOT do, and in this case Chapter 9 of the Penal Code is and has been very, very liberal in use of deadly force.

Every so often things like this happen in Texas that start a debate about tightening the rules for use of deadly force. However, despite the occasional heated arguments, the trend overall has been for the Legislature to loosen those requirements.

What made the 'Castle Doctrine' newsworthy wasnt the ability to use deadly force to protect ones home, but the elimination of any duty to retreat before using deadly force. Thats why critics refer it to the "Shoot First, Ask Questions Later" law.

Another thing it it was add civil immunity to Castle shootings. Civil liability and criminal liability are seperate monsters. Under most states' tort doctrines, the poster above is correct. Deadly force is authorized only to protect lives and then mostly if retreat is not a reasonable alternative.

I see from the previous post that the Castle Doctrine did not remove the 'duty to retreat' when protecting third party property. Like many things in the law, that term oversimplifies a bit more complicated doctrine and how it has been applied by Texas courts.

EXAMPLE: Until about 4 or 6 years ago, it was legal to shoot a tresspasser at night. In tort, deadly force is never lawful against a mere tresspasser for what most people would consider very sound pubic safety reasons. Here in DFW about 15 years ago, a guy shot two guys cutting through his back yard right around sunrise in pretty much cold blood. The only legal question was whether the time in question met the legal definition of night (it did) and the guy walked.

He did get sued though.