Parent's home and gun laws

[cubbyjg]

Once i graduated from college, i moved in back with my parents since i wanted to save money and pay my college debt off. I recently received my CHL and purchased a new gun. My parents know i have a firearm and really dont ask too much about it. Ive explained to them that i am licensed and why i carry. If someone were to break into my parent's house, am i within my legal rights to use my gun and shoot the BG even if there are not armed (im thinking a night time scenario)? I ask only because i dont own the property, my parents do. From my understanding and what i was told, if someone breaks into your house, you can shoot the BG even if he isnt armed. If i am incorrect, please correct me. If anyone has a link to information that pertains to home invasion and texas gun laws, that would be appreciated. I found a link to the Castle Doctorine and intend to read it a couple of times.

[boomerang]

If anyone has a link to information that pertains to home invasion and texas gun laws, that would be appreciated.

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[seamusTX]

The bottom line is that in Texas you are justified in using deadly force to stop a burglar, whether or not you own the property and whether or not the burglar is armed.

There are two points that people seem to overlook here:

• If you shoot someone, you have committed the elements of the crime of aggravated assault. If he dies, it is criminal homicide. The justifications in Chapter 9 of the Penal Code are defenses to prosecution. That means that you can be prosecuted and have to defend yourself.
  
  As a practical matter, people who stop burglars from entering occupied residences are rarely prosecuted.
• The justifications in Chapter 9 are not "gun laws." They are justifications for the use of force and deadly force. Deadly force could be use of any weapon or even fists and feet.

Now let's walk through the statutes. In all these statutes, I am going to quote the portions that are relevant to the scenario that you are asking about.

Definition of 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.

Definition of burglary:

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;

The definitions of robber and burglary make no reference to the criminal actor being armed.

Breaking into an occupied residence is robbery and burglary. It is often called home invasion robbery, but this is not an offense defined in Texas law.

Use of force (including deadly force) in self defense:

9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the 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; [or]

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery

The presumption in this statute is the Castle Doctrine.

Now, use of force (not deadly) to protect property:

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.

Deadly force to protect property:

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;
(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.

Protection of third person's property:

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:
(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.

So you can see you are covered two ways for home invasion robbery or burglary of an occupied residence.

In all of these justifications, reasonableness is an issue. If someone is kicking down your door or coming through a window, there is no question that use of deadly force is reasonable.

If someone is outside and displaying a clear intention to break in, especially if displaying a weapon, use of deadly force is justified.

Use of deadly force is not justified for peeping toms or other trespassers on land, until some other factor comes into play.

As usual, I am not a lawyer. This is my understanding of current Texas law.

- Jim

[cubbyjg]

Seamus, thanks for the explanation. This helped alot!

[seamusTX]

You're welcome.

- Jim