J Horn is acquitted of wrongdoing.

[WarHawk-AVG]

you missed one itty bitty word

"or"

A not so much because nightime is included..B on the otherhand has the , or

[DParker]

Actually here is what saved him...printed in black and white

§ 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.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.


§ 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.
http://tlo2.tlc.state.tx.us/statutes/do ... 009.00.htm

Once the bad guys have met the criteria to use deadly force it doesn't matter if you shoot them front to back or put 50 in their back (one the threat is stopped you stop..if you walk up and put one in the head of a badguy laying down you go to prison for murder)...you must realize the occupational hazard of being a scumbag thief/rapist/badguy is death, if they are lucky the guys in blue will showup and give them some nice bracelets and save them from the good guy that is sick and tired of being the victim and turning said badguy into a leaky walking gazebo

Your only error is in hilighting 9.43(2)(A) rather than 9.43(1). By his own admission Horn barely even knew his neighbor, let alone having been asked by that neighbor to protect his property. But that's unnecessary, with Horn being covered by 9.43(1).

[WarHawk-AVG]

k what does 1 mean?

[DParker]

k what does 1 mean?

That "the actor" (Horn, in this case) believed that the two thugs were attempting to steal or had just stolen the goods in question.

[LedJedi]

§ 9.42 does not apply because it was not nighttime.

You're missing the point man, which is easy to do in something this complicated. The night time requirement only counts for theft in that phrase. Night time is not required for burglary, arson, etc. That has always been the traditional interpretation of the phrasing. Otherwise you couldn't shoot a burglar in your home in daytime and there have been many such incidents where honest folks have done just that and walked away without the police batting an eye.

Night time requirement is only for theft in that phrasing. Admittedly they should have phrased it better.

[Keith B]

§ 9.42 does not apply because it was not nighttime.

You're missing the point man, which is easy to do in something this complicated. The night time requirement only counts for theft in that phrase. Night time is not required for burglary, arson, etc. That has always been the traditional interpretation of the phrasing. Otherwise you couldn't shoot a burglar in your home in daytime and there have been many such incidents where honest folks have done just that and walked away without the police batting an eye.

Night time requirement is only for theft in that phrasing. Admittedly they should have phrased it better.

Ah, I stand corrected. I see the phrasing now; theft or criminal mischief for nighttime. Otherwise you are good to go day or night.

[57Coastie]

Interesting discussion about burglary, robbery, theft in the nighttime, etc.

Since our comments seem to be dying out, I venture to interject something new.

I observe just as a possibly diverting aside, when considering Texas statutory or case law, that (a) burglary, at common law, envisioned breaking and entering of a dwelling to commit a felony in the nighttime, that is, proof that it occurred in the nighttime was an element of the offense, and that (b) robbery required an element of force or intimidation to be used against the victim(s) of a theft.

Under common law had Mr. Horn's targets committed burglary or robbery?

Would the same be true under Texas state law at the time of this event?

While I could not criticize one treating these questions as being academic, I really do feel that the technical definitions of robbery and burglary in Texas have a bearing on how one sorts out the issues in this case, and thus far I have not seen the technical definitions come into play.

Jim

[DParker]

There's no need to speculate, as the TX Penal Code offers definitions for these terms...

Robbery

§ 30.02. BURGLARY.
(a) A person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
(b) For purposes of this section, "enter" means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.
(c) Except as provided in Subsection (d), an offense under this section is a:
(1) state jail felony if committed in a building other than a habitation; or
(2) felony of the second degree if committed in a habitation.
(d) An offense under this section is a felony of the first degree if:
(1) the premises are a habitation; and
(2) any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft.

Robbery

§ 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.

The section on "Theft" is too verbose, so I'll just post the link:

http://tlo2.tlc.state.tx.us/statutes/do ... m#31.03.00

[LedJedi]

Interesting discussion about burglary, robbery, theft in the nighttime, etc.
While I could not criticize one treating these questions as being academic, I really do feel that the technical definitions of robbery and burglary in Texas have a bearing on how one sorts out the issues in this case, and thus far I have not seen the technical definitions come into play.

Jim

Good point, i figured that was a given since i've read it before.

§ 30.02. BURGLARY. (a) A person commits an offense if,
without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion
of a building) not then open to the public, with intent to commit a
felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony,
theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or
attempts to commit a felony, theft, or an assault.
(b) For purposes of this section, "enter" means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.
(c) Except as provided in Subsection (d), an offense under
this section is a:
(1) state jail felony if committed in a building other
than a habitation; or
(2) felony of the second degree if committed in a
habitation.
(d) An offense under this section is a felony of the first
degree if:
(1) the premises are a habitation; and
(2) any party to the offense entered the habitation
with intent to commit a felony other than felony theft or committed
or attempted to commit a felony other than felony theft.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994; Acts 1995, 74th Leg., ch. 318, § 8, eff. Sept. 1, 1995;
Acts 1999, 76th Leg., ch. 727, § 1, eff. Sept. 1, 1999.

I think that clears it up.

[seamusTX]

The preceding message contained a comment about the "remains concealed" clause. It was removed while I was composing my reply, which I can't delete.

The "remains concealed" part covers this scenario: Someone goes into a department store near closing time and hides in a dressing room. After the store closes, he steals stuff.

It is perfectly legal to be in the store while it is open, but it becomes burglary if the criminal stays there after closing time with the intention of stealing.

- Jim

[Bart]

Sec. 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.

Notice that it doesn't say serious bodily injury or death.

[LedJedi]

The preceding message contained a comment about the "remains concealed" clause. It was removed while I was composing my reply, which I can't delete.

The "remains concealed" part covers this scenario: Someone goes into a department store near closing time and hides in a dressing room. After the store closes, he steals stuff.

It is perfectly legal to be in the store while it is open, but it becomes burglary if the criminal stays there after closing time with the intention of stealing.

- Jim

yeah that dawned on me right after i wrote it... didn't realize you were gonna be that quick on the draw.... you're smokin :)

[Bart]

I hate to even mention this, but this morning there is buzz on the radio of hauling in the feds on this.

That would be great. The feds should charge the "widow" (actually girlfriend) for helping him violate immigration law. Maybe RICO forfeiture too.

[HerbM]

Searching Google NEWS for < "joe horn" ~federal >

(without duplicates there were 6 or so entries, most are accidental hits where "joe horn" appears on a news page with another story having the word "federal". And that is a TILDE in front of ~federal meaning 'approximate' or 'synonyms' and not a MINUS which excludes result with the term)

The only sourced reference to some Federal action seems to versions of this:

• "Frank Ortiz, a member of the local League of United Latin American Citizens chapter, said he hopes federal authorities investigate the case further."
  http://ap.google.com/article/ALeqM5gP3O ... wD91KVCD00

Consider the source. CITIZENS?


Or course we cannot easily search radio talk shows, but I also tried this for Google BLOG search too -- with similar (lack of) results.