[Howard Treesong]

[ QUOTE ]
All,

The most reasonable reading of the "at night" element of Section 9.42 is that it applies to all of the victim's offenses, not just the criminal mischief and theft offenses. That's why I didn't include 9.42 in my statutory excerpts. I don't see how the guy can claim justification under that section.

Still, I agree with Howard that it's unlikely that this guy gets convicted, although I'm inclined to take him up on his 10:1 prop bet. IMHO a lot will depend on what the forensic evidence shows in terms of where exactly the victims were when they were shot and why the guy shot that delayed 3rd shot. If he was legitimately taken by surprise that the burglars were closer to him than he expected, then I think it's more likely he will get off, especially given his obviously heightened emotional state. But I count a good 5 or 6 seconds between the 2nd shot and the 3rd, and he says that the 2nd burglar was "down the street," not in his yard. Also, his statements to the 911 dispatcher that he had a right to defend himself when he was clearly not in any imminent danger are somewhat damning. It seems to me that yes, he wanted to defend his neighbors' property, but that he had already made up his mind about shooting and was even already in cover-your-ass mode.

[/ QUOTE ]

Wow. 9.43 wasn't in the original post quoting 9.41 and 9.42, and it's really broad -- it wraps in all of 9.41. I think the "at night" requirement is an artifact of old common law, where burglary had to be of a dwelling house and at night. Most modern statutory schemes write that requirement out, but Texas would appear to be stuck in the 1600s.

Action is still live, yen. I'm happy to ship $1K to El D if you want an escrow. Gotta cover a couple of details, but I'm pretty confident this guy doesn't get convicted of homicide of any kind.