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Interesting story.
Aside from legal definition of defending one's self against deadly force, Texas Penal Code addresses use of deadly force in such a scenario as described, to protect property in the night time. However section 9.42-3A is the definitive line in the legal sand..." the land or property cannot be protected or recovered by any other means;" . This includes via insurance coverage. So, in a situation such as this, even in the night time, one must consider recovery options.

Sec. 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.

Sec. 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;


It's a lot to think about in the heat of the moment. But it's also a quick check list if one has done homework on using deadly force. IMO anyone who owns a firearm, whether it's used for CC or just home defense, would benefit from taking a CC course where such laws are discussed. I suspect that most people who purchase a new gun, whether at their local GS, or maybe end up with one from a family member, or by whatever means, aren't inclined to read the State Penal Code and get a clear understanding of the laws that will apply in the event they end up using it against another person, for whatever reason.
Seems like section 9.42-3A would not need to apply since section 9.42-2A crimes were being committed regardless if any property was taken.
 

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but shooting into the darkness is just foolish - and wrong
Even more foolish to verbalize it to the investigators, especially having consulted an attorney prior to calling 911. Most attorneys just tell you to shut your mouth and let the lawyer do the talking. Will be interesting to know if the burglar was shot from behind or not.

Dallas≠Texas in politics, so this guy is at the mercy of the D.A. now. If he isn't convicted, he will still be impoverished in the process, so penalized either way. Time for a new lawyer I think.
 

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Interesting story.
Aside from legal definition of defending one's self against deadly force, Texas Penal Code addresses use of deadly force in such a scenario as described, to protect property in the night time. However section 9.42-3A is the definitive line in the legal sand..." the land or property cannot be protected or recovered by any other means;" . This includes via insurance coverage. So, in a situation such as this, even in the night time, one must consider recovery options.

Sec. 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.

Sec. 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;


It's a lot to think about in the heat of the moment. But it's also a quick check list if one has done homework on using deadly force. IMO anyone who owns a firearm, whether it's used for CC or just home defense, would benefit from taking a CC course where such laws are discussed. I suspect that most people who purchase a new gun, whether at their local GS, or maybe end up with one from a family member, or by whatever means, aren't inclined to read the State Penal Code and get a clear understanding of the laws that will apply in the event they end up using it against another person, for whatever reason.
The insurance argument doesn’t hold water. If someone is stealing from you, you can assume you will not see that property again. Insurance would pay you for the loss, but it’s reasonable to assume your property is gone.

Now, I’m probably not going to shoot someone for stealing if they aren’t a threat to me. But the law is clear in this instance and likely helps to dissuade some scum bags from robbing people, knowing they may not make it out alive.
 

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"Just fire two blasts", you know who....just doing as he was told.
 

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Does the shed show damage from the pick axe. Was there stolen property on or near the dead person. Was the a guy in the yard contemplating stealing something, saw the old man, turn and ran, then got shot in the back? Is the old man disclosing all the salient details? Was there another article that filled in the missing critical pieces?
 

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The insurance argument doesn’t hold water. If someone is stealing from you, you can assume you will not see that property again. Insurance would pay you for the loss, but it’s reasonable to assume your property is gone.

Now, I’m probably not going to shoot someone for stealing if they aren’t a threat to me. But the law is clear in this instance and likely helps to dissuade some scum bags from robbing people, knowing they may not make it out alive.
In every CC renewal class I've taken over the past 20 years that 942.3.A clause has been emphasized. Insurance coverage is considered a means of recovery in Texas. I don't know if that law has been challenged but it's part of the code. The scenarios that were presented were burglary of structures on one's property that are not attached to the home. Such as barns, storage buildings, etc.
 

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News story I read several hours ago did not look too good for the defendant. It said the deceased had one gunshot wound to the back of his neck. It also said he claimed two shots fired but neighbors heard three. And of course there is that issue with evidence tampering.
He certainly didn't go out of his way to make his lawyer's job easier.

If the guy actually took something it would be helpful. But if he didn't the shot from behind as he is running away could be problematic. He is no longer preventing a theft and he is not recovering property.
 

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Police say he told investigators the person took several steps toward him, so he fired and the burglar dropped his pickax and ran toward the park behind his home. Police say he said he fired again "into the night" in the direction of the park then went back to bed.
What are they going to charge him with that will stick? The burglar had a pickax, Jesus I can sit here and think up a defense.
He can tell the court that he swooned, out of fear for his life, and woke up 4 hours later. How can they prove differently?
If the old boy is as cool in court as he was in his house, he will be found guiltless. He will be acquitted in any jury trial, IMHO.
 

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Maybe they don't condone killing somebody over attempted theft. Is it still called burglary if the perp. is just stealing stuff out of your yard? I think that the best defense would be that the old guy was terribly tired and that he didn't feel safe trying to sleep with somebody running around his property with a pickax. No matter how badly we hate the idea property can be replaced especially if you have home owners insurance. In Illinois you can't shoot somebody for just stealing your property but it would be different if the perp. invaded your house or was robbing your person. It might not sound like it but I like it when somebody uses force to protect their property because it sends a message to potential bad guys that honesty is the best policy.
 

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If he had been a millennial he would have posted on 2 or 3 different social media sites and updated his/her status several times prior to calling 911!:rolleyes:
 
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