TexasCHLforum.com

My amateur opinion , and for the sake of argument (altho this is indeed a serious subject, and I like to use these posts to research and educate myself): I think you are unlikely to be prosecuted in Texas for shooting a drunk who turned the door knob and walked into your home at 2:00 a.m.

It appears to me that the "Castle doctrine" as implemented in Texas law was to relieve the resident of a habitation from having to determine an intruder's intent. Trying to determine "intent" when someone unlawfully and with force enters the house puts the resident at a huge, and potentially fatal disadvantage. The resident is supposed to be there -- the intruder is not, and that is sufficient to tip the scales in favor of the resident presuming the worst and acting accordingly.

As Seamus noted, a self-defense justification requires "the actor reasonably believes the force is immediately necessary;" BUT "The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary ... is presumed to be reasonable if ...the person against whom the deadly force was used...unlawfully and with force entered, or was attempting to enter unlawfully and with force..."
http://www.statutes.legis.state.tx.us/D ... m/PE.9.htm" onclick="window.open(this.href);return false;

No real requirement to determine if someone is applying for Charles Manson discipleship or is just the drunken frat kid from two doors down. If he opened the door and entered without permission, you are presumed to rationally believe deadly force is necessary to deal with him. (See big exception to the "permission" in last para below!)

As noted earlier, I tried looking up legal definitions of "force" to see what this actually meant. This does not seem to be codified in statute, but what I found were teaching examples used in law schools and police training materials, and they were fairly consistent with each other and the post I made above (with the quote from Mr. Cotton). "Force" can be as simple as pushing open a door. Breaking and splintering not required. Locks not required. I can't point to a case, but it would seem there are so many cases that this has pretty much been "codified" in teaching materials across the country. The legislators who enacted this Texas law understood it this way.

I think the example Seamus linked to of a homeowner being prosecuted for shooting an intruder does not counter any of this, because he is not being prosecuted for shooting an intruder in his house. According to the police a) the homeowner and the college kid did not encounter each other in the house, and b) the shooting took place off the property, in the street. This did not fall under the Castle Doctrine. And since the kid did not have any of the homeowner's property, nor confronted the homeowner or offered any threat out in the street, it doesn't fall under any other doctrine. Had the homeowner shot him in the house, I really don't think he would have any problem with the DA.

Now I don't recommend you blindly shoot at anyone moving around in your habitation or banging on the door without at least identifying that he is really not supposed to be there. There are too many stories of family members or house guests coming in late and getting shot. Also, there are people who can lawfully enter or attempt to enter your house with force, among them police and firefighters responding to emergencies. I have knocked on the wrong door more than once in the wee hours as a first responder, because the dispatched address was wrong, or the houses were not marked and we had to search around. (I always stand to the side when I knock). I have broken into houses when the party who called was not able to get to the door (we try to let the cops be the first one in the door to sort things out, but they are not always available). We don't like to do this, and it doesn't happen often, but it can, and police and firefighters can come to the wrong address too. "Be sure of your target and what lies behind it" is still a good rule at 2 a.m.

Thank you for pointing out the 9.32(b) presumption. I had forgotten about that.

However, this law went into effect two years ago, and as far as I know it has not been tested.

If you shoot someone, the prosecutor can always go for an aggravated assault or murder charge (depending upon the result of the shooting). The grand jury may or may not agree. If a majority sympathize more with the intruder than you, you're in a bad position that I never want to be in.

If you look at the comments on various web sites about the case that this thread is based on, a large number are sympathetic to the alleged burglars. Granted, most of them seem to be from Luling and may be relatives or classmates of the suspects. But imagine getting a block of people like that on a grand jury.

In any case, IMO, there's no excuse for leaving your doors unlocked in this day and age.

- Jim

seamusTX wrote: Thank you for pointing out the 9.32(b) presumption. I had forgotten about that.

However, this law went into effect two years ago, and as far as I know it has not been tested.
- Jim

If by tested, you mean the DA chose to prosecute the homeowner anyway, and the defense used this law as defense, I don't know of any either. But there have certainly been shootings that clearly fell within the law and were not charged, were not prosecuted, were no-billed, etc.

seamusTX wrote:If you shoot someone, the prosecutor can always go for an aggravated assault or murder charge (depending upon the result of the shooting). The grand jury may or may not agree. If a majority sympathize more with the intruder than you, you're in a bad position that I never want to be in.
- Jim

Yes, prosecutors can ignore or stretch the law based on their own agendas -- I think we went two rounds on the MPA because of this -- and once he does so there is always the "ham sandwich" effect -- but I am not going to hesitate in self-defense on the off-chance the prosecutor and the jury are a bunch of idiots. If there is not an truly obvious good reason that guy is standing in my living room at 2:00 a.m., I am going to assume he is hostile and act as necessary.

seamusTX wrote: In any case, IMO, there's no excuse for leaving your doors unlocked in this day and age.

- Jim

I think its wise to keep your doors locked, but I cannot see making it a homeowner's moral burden to do so because someone else might do something bad or just stupid (i.e. get drunk and enter the wrong house). I myself am a fanatic about it -- I pretty much lock the door anytime I step off the porch, and I think to do otherwise is very unwise, but there is a difference between what is morally, legally, and tactically required or wise.

ELB wrote:If by tested, you mean the DA chose to prosecute the homeowner anyway, and the defense used this law as defense, I don't know of any either. But there have certainly been shootings that clearly fell within the law and were not charged, were not prosecuted, were no-billed, etc.

Clearly is the key word there. All the cases that I know of, either the intruder was a real burglar or other do-bad, or he was a drunk or nut trying to break down the door.

I don't know of a case where someone got a pass for shooting an unarmed person who entered through an open door.

I think its wise to keep your doors locked, but I cannot see making it a homeowner's moral burden to do so because someone else might do something bad or just stupid ...

Unfortunately, we have to deal with a system where laws are vague, prosecutors can have agendas, juries can be ignorant or prejudiced, and some judges are not worthy of their office.

Therefore, I think I have a moral obligation to myself and my family to make it difficult for anyone to get into the house.

- Jim

seamusTX wrote:

Therefore, I think I have a moral obligation to myself and my family to make it difficult for anyone to get into the house.

- Jim

I agree with this for myself as well -- but my obligation is to my family, not to some fool from off the street who wanders into my house. I may have misinterpreted your original remark ("no excuse"] to imply this.

I was not implying that leaving the door of a residence unlocked was a defense for the intruder. Everyone over the age of five should know that it's wrong to enter a house or apartment uninvited. See my earlier statement about a shack with plastic sheeting over the doorway.

- Jim