Posted: 7/6/2006 4:29:56 AM EDT
| I need some help with this. Texas law says you may use force to prevent robbery,arson,rape and etc. Then it has a sentence about these crimes commited at night. Does that mean you may be libel if you defend yourself or property during the day? |
Actually, Texas law does not say you may use force for any reason. Using force that is listed in chapter 9 of the penal code is a "defense to preosecution". That means that if you meet the requirements listed, then you have a defense in court from the potential charge of assault, aggravated assault, murder, etc. It is an important concept of Texas law. If you shoot and kill a person who is robbing you at gunpoint, you have committed murder as per the penal code definition. However, Texas law provides a justification for using deadly force if certain conditions are met to prevent a robbery. You can still be charged, but the law allows you a specific defense. The law you are referring to is the defense to using deadly force to prevent the imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime. That means that the justtification for using deadly force to prevent the imminent commission of theft and criminal mischief only apply during the nighttime. The others have no time of day restriction. Chapter 9 of the penal code is very thick with phrases such as "when and to the degree", "reasonably believe", "immediataly necessary", etc. I invite you over to the Texas forums where we have had MANY discussions of deadly force and use of force. It is important to understand. |
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Here is a post I made on another forum. Hopefully it'll help; §9.02. Justification as a defense. It is a defense to prosecution that the conduct in question is justified under this chapter. The "conduct in question" refers to the use of fore that one would apply to protect oneself. For instance, if I walk up and without any prior provication I strike Bob in the face, that is an assault. It is assault because it meets the definition of the assault statute. If; however, Bob first grabs my shirt, pulls his fist back and states thru clenched teeth and a tightned jaw, "I am going to kick your tail (edited for 10 year-olds), and I am able to first strike Bob in a the face and break away............ my striking Bob in the face is STILL an assault. What we want to know if that assault was justified under the law. The "conduct in question" in that scenario is my striking Bob. We want to know if that was justified. I am not going to get into that here. As we all know, at a trial for striking Bob, the prosecution must prove, beyond a reasonable doubt, that I committed an assault. Lets see, his blood is on my palm, he has a bloody nose.....pretty easy. I then have to prove, beyond a reasonable doubt, that "the conduct in question", in this case striking Bob in the nose, was justified under chapter 9. We will explore that later. Lets look at the definition of "a defense to prosecution" §2.03. Defense. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ." (b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense. (c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense. (d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted. It is a Defense TO Prosecution, not a Defense FROM Prosecution. You must prove, beyond reasonable doubt, that your conduct or use of force was justified. If a person dies from my use of deadly force (called a homicide), a Grand Jury is going to hear the case. This could happen with or without my being arrested or charged with the homicide. In any case of use of force, you CAN be arrested and charged with the assault. Ultimately, a jury or Grand Jury will determine if your "conduct in question" was "justified under chapter 9". Sometimes, if it is CLEAR that the use of force was justified no criminal action is taken against the person. It is important to remember; though, that criminal action CAN be taken, and it will be up the the individual to prove justifcation. Bottom line, if you use deadly force the best case scenario is a referral t the Grand Jury and a No-Bill. Worst case is you get arrested at the scene, charged, indicted and convicted. |