San Marcos: Home invasion stopped

[Purplehood]

Let me preface what I'm about to say by saying according to the story and things said so far, these kids were up to no good and bad things happen when you don't keep your nose clean. I am sorry for the parents loss, but I have two small kids and am going to do my best to keep them out of harms way by teaching them not to get involved with things like these kids did. But if they choose to not listen, you can only hope they make it through "that" stage.

I'm not tyring to be funny or offend anyone here, but to me, looking at the picture of the house in the story, it looks abandoned. Quote from the story says "As news crews arrived at the small, two-story gray house in the 900 block of Chestnut Street, residents inside boarded up windows and draped a curtain over the front entrance, which was missing a door." If it were truly not a drug deal, house looked in shambles like that, and had no front door, assuming these kids were just being kids, they could have thought it was an abandoded house and been playing dare games to see if someone would go in or tying to find some place to hid and smoke a cigarette or something "innocent". I wonder, in that instace, if charges might have been pressed if this were the case maybe with some type of negligence involved. I understand breaking and entering, but there was no breaking here. Maybe this is too far fetched and too many "what ifs", but it was the first thing that went through my mind after looking at the pictures.

Playing in an abandoned house with guns? How do you know that the door didn't come off as a result of the home invasion?

[Wisewr]

Details are trickling out. Pay attention to this:

Police took the home’s front door and other items of evidence along with the suspects’ weapons, the resident’s Glock and several others that belonged to the same resident.

It did indeed come off as a result of the invasion which was later found out after I posted that.

Just to clarify, my post was a "what if" situation and I was not implying that these particular kids thought this was an abandoned house and went in to do what have you. I was throwing a "what if" scenario out there when I thought the house didn't even have a door from the get-go.

[seamusTX]

Maybe people should keep spare doors as well, as it looks as if LEOs may help themselves to those, too.

I had never thought about this before, but nearly all the doors in my house are the same size (33 inches wide). If the front door were broken down, I could replace it temporarily with another door.

I don't know if this is generally the case.

- Jim

[Purplehood]

Not trying to disparage your remarks. I simply have difficulty believing that these kids travelled with weapons that distance for any innocent intent; perhaps my imagination/creativity is lacking.
I know that I might experience some hesitancy if a bunch of "kids" burst in my door with guns due to the cultural bias that we have here in the US regarding the presumed innocence and relative immunity that kids currently enjoy. But in reality I agree with previous posters that a threat is a threat, and regardless of public opinion a gun-toting individual invading my home is subject to whatever force is required to stop them.

[Wisewr]

But in reality I agree with previous posters that a threat is a threat, and regardless of public opinion a gun-toting individual invading my home is subject to whatever force is required to stop them.

I totally, 100% agree with this also. And in this particular case I stand behind the home owners actions 100%. Those kids were in the wrong and there was nothing right about what they were doing. The owner took the nesecarry actions to stop the unwanted force.

Maybe I should have made my comments in a completely different thread and posted it as a question because I think they have been confused here. Here goes the last attempt on trying to clear it up. I was only posing a scenario, question, or "what if" when I posted that and was using the state of the house and not using the kids with guns which was the actual situation. So, to help your thoughts, take these kids and their guns out of the situation completly and plug in some neighborhood kids who are just fooling around and enter a "rundown-lookin" house without a front door for some teenage "fun"(when I made the comments originally, it was under the presumtion that the house lacked a door BEFORE the invasion). I would think if the house was like this to start with that the home owner would have some type of liability being that his house looked abandoned. It was only a thought and was not a defense provided for the kids and their actions in the news story.

Clear as mud?

[seamusTX]

I would think if the house was like this to start with that the home owner would have some type of liability being that his house looked abandoned.

The law does not distinguish between a mansion and a run-down shotgun shack with a sheet of plastic over the door opening. Burglary is burglary.

Prosecutors and grand juries seem to agree.

On a practical level, I have read plenty of these self-defense stories where burglars came to a bad end after entering through unlocked doors or open windows, and the homeowner was not prosecuted.

Note: This is not the case in ever state. Some states still have a duty or retreat, or prohibit the use of deadly force unless the attacker is attempting to use illegal deadly force.

- Jim

[ELB]

On a practical level, I have read plenty of these self-defense stories where burglars came to a bad end after entering through unlocked doors or open windows, and the homeowner was not prosecuted.
- Jim

The statute that makes it legal to use deadly force against someone in your home doesn't actually reference burglary (Penal Code Cah 9), but self-defense (Penal Code Ch/Sec 9.31). It is legal to use deadly force against someone who

...unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation...

( "With force" seems to be an element of burglary in some other states, but not in Texas. It is an element to consider when judging an inhabitant's use of force.)

The threshold for "with force" is pretty low. I google-researched this, and all the references I came across from various jurisdictions said pretty much the same thing -- opening an unlocked door is well into the "with force" area. Mr. Cotton commented on this in another thread:

Charles L. Cotton wrote: During the debate on SB378, one of the Senators stated that he too didn't like the "with force" requirement and he too gave the example of a burglar opening an unlocked door and coming in. Quite by accident, one of the ADA's gave testimony that was helpful. He testified that, for purposes of unlawful entry, burglary, etc., pushing a door open constitutes the use of force. When he said this, I looked around the room and all of the criminal attorneys (prosecutors and defense lawyers) were nodding their heads in agreement. Even Sen. Henajosa, a criminal defense attorney, agreed. This went a long way toward easing my concern about the "with force" requirement.

http://www.texasshooting.com/TexasCHL_F ... =7&t=26340" onclick="window.open(this.href);return false;

Going into any house without permission, abandoned looking or not, is generally not legal and definitely not a good idea...especially at 2 a.m. I try to remember this when I am doing the firefighter/first responder thing -- I just don't wander in the door without people knowing who I am and why I am there...

[A-R]

Police confirmed the 4 teens were looking to steal marijuana from a "dealer" who supposedly lived at the address. Police confirmed a small amount of weed was found in the house, but doesn't sound like it was in large enough quantities to qualify as a "dealer".

Does bring up an interesting scenario, related to whether Castle Doctrine applies if the "defender" in the case was also in the act of committing a crime (such as drug distribution or possession with intent to distribute) ... assuming this was a "dealer" who lived at the address (note: this has not been alleged by anyone other than the surviving teen suspect) what if the resident/shooter was NOT the dealer or possessor of the marijuana, but merely a roommate? Does he/she still have protection of the Castle Doctrine? Or does the dealer's criminal activity cloud the legal rights of residents of the entire property?

In college, I once lived with a guy who regularly smoked pot and kept a stash on hand. I confronted him about it and told him not to stash it at our apartment because it was my understanding that I could be held just as criminally liable for it as he could (that's what someone else told me at the time).

Anyway, would love to know thoughts from some of the legal Eagles on this ... Charles? SRothstein?

http://www.statesman.com/news/content/n ... arcos.html" onclick="window.open(this.href);return false;

PUBLIC SAFETY

San Marcos police: Teen suspects sought pot
Four sought to steal marijuana from dealer they knew as 'Harry Potter' but ended up being shot at, affidavit says.
By Patrick George

AMERICAN-STATESMAN STAFF


Wednesday, September 09, 2009

SAN MARCOS — Four Luling teenagers accused of breaking into a San Marcos home with guns last week — resulting in a shooting that left two of them dead and a third seriously injured — had planned to steal marijuana, according to court documents.

According to the arrest affidavit for Frank Castro, 17, he and Rudy Tinoco, John Alvarez III and Jordan Mendez, all 16, entered the home in the 900 block of Chestnut Street about 2 a.m. Friday armed with pellet guns, a pellet rifle and a Ruger pistol.

Castro told police that a resident at the house, known on the street as Harry Potter, was known to sell large quantities of hydroponically grown marijuana, or "dro," according to the affidavit. Castro said they went to rob the man, whom police have not identified.

When the teens went inside, a resident of the house began shooting, the affidavit states.

Tinoco and Alvarez were fatally wounded. One was pronounced dead at the scene, and another died at Central Texas Medical Center in San Marcos, the affidavit said.

Castro, who was unharmed, fled the home when the shooting started but was arrested after he returned to the scene. He has been charged with aggravated robbery and remains in the Hays County Jail with bail set at $50,000.

The other teen remains hospitalized at University Medical Center Brackenridge, San Marcos Police Chief Howard Williams said. Williams said he cannot provide more information because the suspects include juveniles.

Williams said officers found a very small amount of marijuana inside the home. It will be up to the Hays County district attorney to decide if drug charges will be filed, he said. The names of the shooter and other residents have not been released because they have not been charged with a crime, he said.

Under state law, a homeowner or a resident has the right to use deadly force when someone makes an unlawful and forcible entry into their home.

pgeorge@statesman.com; 512-392-8750

[seamusTX]

Well, I'm not a lawyer, but I have more time on my hands.

PC 9.31 (which includes the Castle Doctrine) was clearly intended to remove the justification for the use of force from a criminal actor. So, if a customer robs a for-real drug dealer, the dealer cannot legally defend himself.

The issue of possession is complicated. Let's say, hypothetically, "Tom" had a few grams of pot in his sock drawer, and his roommate "Fred" was the shooter.

IMHO, in that case, "Fred" has justification, and "Tom" gets dinged with a misdemeanor possession charge, especially if "Tom" admits that the pot was his.

OTOH, let's say there was a bong in plain view in a common area. In that case, everyone in the house probably could be charged with possession.

Whether the prosecutor would use that as a factor to get an indictment against the defender is anyone's guess. I would guess not. Remember, the prosecutor can always choose not to prosecute, and he has a lot of control over the information that the grand jury sees.

I don't know of any case law in this area.

- Jim

[HankB]

News radio had the "Harry Potter Drug Stash" story this morning, pretty much repeating what was in the Statesman's story, except the news reader said that police had not found drugs.

So the residents either did or did not have "some" drugs, but there was apparently no hydroponic growing operation in the house.

The drugs either did or did not belong to the shooter.

If the drugs belonged to the shooter, he either will or will not be charged, and castle doctrine either will or will not be applicable.

Are we all clear on this now?

[lonewolf]

That made my head hurt.......

Did, or did not? Was or was not? Kind of weird ground on this one. If the invaders were the criminals and they were shot by the homeowner who just happened to have drugs on the premises then aren't they all criminals? I'm only saying....If they guy had a stash of some kind then didn't he just use the firearm during the conduct of that crime? Thus escalating the ramifications therof? This thing could get real nasty for the homeowner real quick-like. And if he DID have drugs in the house, so be it. If he didn't, then it appears on the surface to be a justified SD situation. Kind of sticky. The devil will be in the details on this, and we're likely to never know the outcome....

[A-R]

If the invaders were the criminals and they were shot by the homeowner who just happened to have drugs on the premises then aren't they all criminals? I'm only saying....If they guy had a stash of some kind then didn't he just use the firearm during the conduct of that crime? Thus escalating the ramifications therof? This thing could get real nasty for the homeowner real quick-like. And if he DID have drugs in the house, so be it. If he didn't, then it appears on the surface to be a justified SD situation. Kind of sticky. The devil will be in the details on this, and we're likely to never know the outcome....

I have not researched this facet of the law as others have, but SURELY there must be some reasonable line drawn with regards to what kind of crime a homeowner must be committing AT THE TIME of the incident to lose his/her Castle Doctrine protections. I mean, if someone was signing their tax return that they KNEW they cheated on when someone breaks into their house .... or maybe they're tearing the tags off their mattresses? Or they are enjoying "free" cable TV etc etc.

Seems to me it would make sense (yeah yeah, i know, laws aren't supposed to make sense) that you only lose your Castle Doctrine defense if you're using deadly force to not only protect yourself but also to protect or continue to hide your CRIME. If you just happen to have a few ounces of pot in the medicine cabinet, and someone breaks in while you're watching TV and stone-cold sober, then to say you lose your Castle Doctrine defense seems particularly extreme.

Basically if you shoot someone to protect your weed, then no Castle Doctrine. But if you shoot to protect your life and you just happen to have some weed, justified in my book.

[lonewolf]

Its always my hope that common sense like that would prevail, but alas, it doesn't always.

I've learned that just because I (I hope) am a reasonable and well-grounded person doesn't mean those around me are. It'll be interesting to see how this plays out. All it takes is one eager DA or LEO.

[Purplehood]

On a practical level, I have read plenty of these self-defense stories where burglars came to a bad end after entering through unlocked doors or open windows, and the homeowner was not prosecuted.
- Jim

The statute that makes it legal to use deadly force against someone in your home doesn't actually reference burglary (Penal Code Cah 9), but self-defense (Penal Code Ch/Sec 9.31). It is legal to use deadly force against someone who

...unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation...

( "With force" seems to be an element of burglary in some other states, but not in Texas. It is an element to consider when judging an inhabitant's use of force.)

The threshold for "with force" is pretty low. I google-researched this, and all the references I came across from various jurisdictions said pretty much the same thing -- opening an unlocked door is well into the "with force" area. Mr. Cotton commented on this in another thread:

Charles L. Cotton wrote: During the debate on SB378, one of the Senators stated that he too didn't like the "with force" requirement and he too gave the example of a burglar opening an unlocked door and coming in. Quite by accident, one of the ADA's gave testimony that was helpful. He testified that, for purposes of unlawful entry, burglary, etc., pushing a door open constitutes the use of force. When he said this, I looked around the room and all of the criminal attorneys (prosecutors and defense lawyers) were nodding their heads in agreement. Even Sen. Henajosa, a criminal defense attorney, agreed. This went a long way toward easing my concern about the "with force" requirement.

http://www.texasshooting.com/TexasCHL_F ... =7&t=26340" onclick="window.open(this.href);return false;

Going into any house without permission, abandoned looking or not, is generally not legal and definitely not a good idea...especially at 2 a.m. I try to remember this when I am doing the firefighter/first responder thing -- I just don't wander in the door without people knowing who I am and why I am there...

Am I reading this right? It is within the realm of law to shoot someone that walks through your unlocked door by accident (say they were drunk and thought your apartment door belonged to them).

[seamusTX]

Am I reading this right? It is within the realm of law to shoot someone that walks through your unlocked door by accident (say they were drunk and thought your apartment door belonged to them).

That is uncertain and IMO unlikely.

Before the "Castle Doctrine" law was passed, preventing burglary was a justification for the use of deadly force. Burglary is defined as entering a building with the intent to commit a felony, theft, or assault.

In that case, someone simply walking into your house would not be justification for the use of force until you determined the person's intent.

In the case of this hypothetical drunk, it is quite likely that he would flee when you confronted him verbally.

The "Castle Doctrine" added as a justification for the use of force "unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation..."

Now we have the question of what "with force" means. There is some case law that says turning a doorknob is force, but it's a gray area.

Then we have the often-overlooked "when and to the degree the actor reasonably believes the deadly force is immediately necessary..."

If a trespasser does not present some sort of threat other than his mere presence, it is difficult to argue that deadly force was immediately necessary.

I posted a story recently where a homeowner shot a drunk who had entered his house and was fleeing. The homeowner was indicted for murder: http://www.texasshooting.com/TexasCHL_F ... 23&t=25714" onclick="window.open(this.href);return false;

You don't want to have to defend yourself legally against a felony charge. It can ruin your whole decade.

As usual, I am not a lawyer. All of the above is only my amateur opinion.

- Jim