Texas Penal Code - Deadly Force on 30.06/07 Property

Discussion in 'Texas Concealed Handgun (CHL)' started by locke_n_load, Mar 18, 2017.

  1. locke_n_load

    locke_n_load Well-Known

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    Okay, question for the law gurus.
    You are carrying your handgun under the authority of your LTC, and you enter a property that is properly posted with 30.06/30.07. I don't think TPC makes a distinction between accidentally (didn't notice sign) or purposely (saw it and proceeded anyway). This would normally be a class C misdemeanor in most locations.

    While on that property, your life becomes in danger and you shoot in defense of your person. You met all requirements of 9.31 and 9.32, except you were carrying past valid 06/07 notice, which is trespassing, a criminal activity that isn't a class C misdemeanor for traffic. Do you lose your presumption of reasonableness since you were engaged in "criminal" activity? And therefore used unlawful deadly force?

    [FONT=&amp]Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:[/FONT]
    [FONT=&amp](3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.[/FONT]
    [FONT=&amp](b) The use of force against another is not justified:[/FONT]
    [FONT=&amp](5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:[/FONT]
    [FONT=&amp](A) carrying a weapon in violation of Section 46.02; [/FONT]
     


    Last edited: Mar 18, 2017
  2. texasnurse

    texasnurse Well-Known

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    It's really up to the owner of the property if they want to press charges.


    Sent with my IPhone with electronics and fuzzy logic...
     
  3. txinvestigator

    txinvestigator TGT Addict

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    That's not what he asked

    OP, based on your scenario you would have no presumption of reasonable simply due to location, unless the other person was committing or attempting to commit robbery, aggravated robbery, sexual assault, aggravated sexual assault, aggravated kidnapping or murder.

    And you quoted the wrong law, and not enough snippits. 9.31 does not address use of deadly force.

    Here is the bottom line, and when I get back to the computer I will post relevant laws and explain...

    Ino your scenario you could be prosecuted for violating 30.06/07. A trier of fact will determine if you were reasonable to believe that deadly force was immediately necessary under 9.32
     
  4. jrbfishn

    jrbfishn TGT Addict

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    Correct me if I am wrong, but I thought that carrying past 30.06/07 sign was a class C misdemeanor now.

    from an idgit coffeeholic
     
  5. locke_n_load

    locke_n_load Well-Known

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    I did not make the presumption that 30.06/07 gives any sort of reasonableness for force or deadly force just based on location, I said if all other facets of 9.31/32 were met (i.e. robbery, agg sex assualt, etc.), except that 30.06/07 notice had been given and you were committing trespass by license holder at the time of the shoot, would you lose your presumption of reasonableness because you were technically committing a crime at the time (a disqualification of reasonableness you could say). I only posted 9.31 because the "not otherwise engaged in criminal activity is in there (in both actually), and you must satisfy 9.31 in order for 9.32 to be justified, and I did not feel the need to post all the relevant law.

    I know the property owner could press charges for violation of 06/07, but the bigger item is did you use unlawful deadly force if you met all qualifications of 9.31/32 except that you were carrying on 30.06/07 posted property.
     
    Last edited: Mar 18, 2017
  6. locke_n_load

    locke_n_load Well-Known

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    It is for most locations, but I'm asking if you used deadly force after being given 30.06 notice, did you use unlawful deadly force (much worse than the class C for 30.06 violation).
     
    Last edited: Mar 18, 2017
  7. txinvestigator

    txinvestigator TGT Addict

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    Losing the "presumption" of reasonable belief does NOT remove your justification for deadly force. If you lose the presumption, you simply fall under the subjective reasonable belief.

    Under 9.32, you can have reasonable belief if the presumption does not exists.

    Here is an example; the presumption exists if you meet any of these three conditions;

    So let's say you are at the mall, but don't work at the mall and don't live at the mall. Let's also assume for this example that there is no 30.06/7 notice. Let's also assume that the unlawful deadly force being used against you does not qualify as aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

    In that scenario, you can still have reasonable belief that DF was immediately necessary; however, the jury will decide if your belief was reasonable.

    Make sense? 9.21 (a) is subjective. The conditions under 9.32(b)(1) make the "reasonable belief" clause in 9.31(a) objective.


    It is similar to the .08% BAC for intoxication. A person an be intoxicated under .08% BAC or even with NO BAC. The definition is subjective. However, if a person is .08% BAC, the they are presumed to be intoxicated, an objective definition.

    I hope this helps.
     
  8. txinvestigator

    txinvestigator TGT Addict

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    Violating 30.06/07 does not invalidate your justification for deadly force. It simply removes the instruction to the jury that they must presume that you had reasonable belief that deadly force was immediately necessary.

    Prior to 2007 and the ill-named Castle Doctrine, 9.32(a) read exactly the same. 9.32(b) did not exist. The jury ALWAYS decided if your belief was reasonable. Now, there are conditions that require the jury presume your belief reasonable.
     
  9. locke_n_load

    locke_n_load Well-Known

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    I appreciate both posts, but this one nails what I was asking. Just because you didn't check every item off, your actions could still be reasonable based on the situation, especially understanding the history of the law.

    I figured this question was going to go above most people's understanding of the law, and I would only get a few replies, because it starts to be a lawyer interpretation. Thank you.
     
  10. txinvestigator

    txinvestigator TGT Addict

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    I am a slow and terrible typer I am glad I was able to convey the point in the written word. I can explain better verbally. ;)
     

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