Appropriate use of deadly force Texas style

[arch308]

I like the law as it stands. Just because you don't agree with this one verdict you need to change the law? Seems rash to me.

 

[zincwarrior]

While I don't think this will start a run of convenience store shootings, its a definite defence in a slew of criminal activity.

And no I don't like the law. Just because its night time doesn't mean you should be ok shooting someone stealing your purse.

 

[JRH6856]

Its applicable.
1) it occurs at night.
2) the clerk leaving when you're displeased with the product, is taking your property (money), without providing the product you desired.
3) you shoot said clerk and claim defense of property.

Not applicable as all conditions required by the law are not met. To wit, there are other avenues available for later recovery than by immediate use of deadly force.

Another example:
1) buyer pulls up to illegal crack dealer at night.
2) an exchange is made.
3) buyer reviews the product in more detail and is not happy with the weight or consistency of the product.
4) crack dealer attempts to flee with buyer's money.
5) buyer shoots the crack dealer.
Thats a good shoot using this case as stare decisis.

Not the same as the San Antonio case. In the example above, and exchange was made. Goods were received in exchange for cash. In the San Antonio case, there was no exchange. Nothing was received in exchange for the cash. Could have been fraud in either case.

In any event, the theft at night justification could be claimed, and I'm fairly certain a search of cases would find that it has been claimed many times under similar circumstances without success.

What makes the San Antonio case notable is that the jury accepted the defense. (Juries are not bound by stare decicis.)

 

[Double Naught Spy]

Its applicable.
1) it occurs at night.
2) the clerk leaving when you're displeased with the product, is taking your property (money), without providing the product you desired.
3) you shoot said clerk and claim defense of property.

NO! Once you purchased the product and took possession of it, the money you used to pay for it was no longer yours. You don't get to own the money you paid somebody else and the product you purchased with it as well. You made a purchase transaction, and EXCHANGE. That is how proper purchases work. That you are not happy, after the fact, when the clerk at 7/11 did nothing wrong does not give you any right under any law to shoot him, even at night.

Another example:
1) buyer pulls up to illegal crack dealer at night.
2) an exchange is made.
3) buyer reviews the product in more detail and is not happy with the weight or consistency of the product.
4) crack dealer attempts to flee with buyer's money.
5) buyer shoots the crack dealer.
Thats a good shoot using this case as stare decisis.

Again, no. In this case, the shooter did NOT receive the product. He paid for a service he did not receive and the person left with the money. That is theft.

What you are describing with your crack example and your candy bar example is not theft. In both cases of your cases, the sellers delivered and payment was made. In the OP court case, money was paid but the seller did not deliver.

 

[deepcreek]

I wonder how much the shooter has spent in legal fees to stay out of jail for his effort to collect his $150.

This is my thought.

I could see shooting at someone for stealing a box of jewelry, horse, car, etc probably what the law was made for. But where do you draw the line?

It would be sad to see a kid get killed for stealing a garden gnome, a hooker stealing money not so much.

 

[JRH6856]

FWIW, I believe the theft at night law was initially passed primarily to deal with cattle rustlers. It is a pretty old law.

 

[csmsss]

One thing I'm surprise that (I think) no one has brought up is that the defendant was never charged with solicitation of prostitution!

 

[JohnKSa]

That's kind of a surprise--where did you find that information?

 

[JRH6856]

I believe that since solicitation is a misdemeanor, it must be witnessed by the arresting officer in order to be charged. Money changed hands. But who was there to testify as to why?

 

[zincwarrior]

The one positive, her next of kin now owns him in civil court. He's a bankrupt man walking. Its no consolidation but it helps.

As to changing the law, yes it should be changed and put in line with the self defense statutes. To narrowly tailor the change the law should include the same language that the party cannot claim the defense provision if the defendant are themselves in commission of a crime or conspiring to do so (I think the last part is my language).

 

[arch308]

I don't see anything positive in your statement. He was legally found not guilty. The law has been working fine for a long time and should remain on the books as is. Not sure why you need consolation.

 

[Spats McGee]

I seem to recall reading somewhere that the shooter in this case testified that he "didn't mean to kill her." If my memory of that is correct, it presents a bit of a quandry for the shooter. If not, y'all feel free to disregard the rest of my ramblings in this post. In most SD shootings, there's not much question about the shooter's intent. Most of the time, it's a situation of "I meant to kill him, but I had a really good reason." In this case, if the shooter said at the criminal trial that he didn't mean to kill her, then he may have given the civil suit (negligence) more wiggle room. (It may also be that TX law won't allow a civil suit now that he's been acquitted. I just don't know one way or the other.)

 

[zincwarrior]

I don't see anything positive in your statement. He was legally found not guilty.

Thats why a change needs to be made.

It may also be that TX law won't allow a civil suit now that he's been acquitted. I just don't know one way or the other

No he can still be sued in Texas.

 

[allaroundhunter]

If he was able to successfully use the castle doctrine as a defense then a civil suit would not be able to be filed against him, but that was not his defense.

And zincwarrior, I have no idea why you have such a beef with this law, but it is here to stay and I don't see a reason for it to be changed. When criminals understand that they are putting their lives in danger more then maybe it will cause them to rethink the actions that they are about to make. If it doesn't, well then it could lead to natural selection and one less criminal on the streets. Perhaps you don't want that, but I sure do.

 

[zincwarrior]

He can't effectively use the Castle Doctrine as that relates to self defense.

1) Thats one of two reasons I have a beef with the law. My wife defending herself from attack effectively has a higher standard of proof then someone shooting a prostitute over money.

2) The other beef is that someone shot a prostitute with an AK 47 over money, and got off scot free. As Dad would say, thats all kinds of crazy.

EDIT: this is not meant as an attack on anyone except the actual shooter in the fact pattern, and I respect other people's opinion on the subject although I disagree.

 

[allaroundhunter]

Zinc, we don't know all of the details. The shooter could have been (probably was) arrested. Then, he could have been charged with solicitation and the judge could have ruled it as time served since it is a misdemeanor. He still had to pay for his defense, and I assure you that he did not get off scot-free. Do I think that this defense should have applied to him? No, I don't think so. However I am not a lawyer (and you know how common sense works in this world )...

But, I do not want this law to change because it should be there for those who may have a more valid case for using it as a defense.

 

[zincwarrior]

Again, respectfully to those who disagree, I don't see arrest and legal fees sufficient punishment for the crime of murder.

I also understand the desire not to change the law (I'd rather a proved appeal on this, but I'll state I don't know very well what the State's requirements are for appeal). However a change limiting the defense to those who are not engaged in criminal activity at the time would be generally sufficient.

or just a half decent prosecutor.

 

[Tom Servo]

It may also be that TX law won't allow a civil suit now that he's been acquitted.

It's a bit murky. This is the relevant code section:

§ 83.001. AFFIRMATIVE DEFENSE. It is an affirmative
defense to a civil action for damages for personal injury or death
that the defendant, at the time the cause of action arose, was
justified in using deadly force under Section 9.32, Penal Code,
against a person who at the time of the use of force was committing
an offense of unlawful entry in the habitation of the defendant.

However, Section 9.32 doesn't say anything about theft. It only covers unlawful deadly force or "imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery."

 

[Evan Thomas]

Actually, it doesn't seem that murky to me. The passage you quoted refers specifically to section 9.32, which deals with defense of persons. Since it doesn't mention Subchapter D, section 9.41, which is the one on defense of property, wouldn't that exclude the latter as an affirmative defense in a civil suit?

I could be wrong, but I think this was an amendment passed as a sort of addendum to the stand your ground law.

 

[Tom Servo]

Since it doesn't mention Subchapter D, section 9.41, which is the one on defense of property, wouldn't that exclude the latter as an affirmative defense in a civil suit?

That's my thinking, yes.