Texas Penal Code - Deadly Force on 30.06/07 Property

[locke_n_load]

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]

 

[texasnurse]

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...

 

[txinvestigator]

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...

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

 

[jrbfishn]

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

 

[locke_n_load]

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

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.

 

[locke_n_load]

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

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).

 

[txinvestigator]

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.

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;

knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

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.

 

[txinvestigator]

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).

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.

 

[locke_n_load]

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.

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.

 

[txinvestigator]

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.

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.

 

[kotetu]

seems logical - the crime of trespass should not affect whether lethal force is justified. For example, had a CHL holder been present in Aurora and shot Holmes, he would have been justified in doing so.

Is it up to the business owner to press charges for a 30.06 violation, or is that up to the discretion of the city attorney?

 

[txinvestigator]

seems logical - the crime of trespass should not affect whether lethal force is justified. For example, had a CHL holder been present in Aurora and shot Holmes, he would have been justified in doing so.

Is it up to the business owner to press charges for a 30.06 violation, or is that up to the discretion of the city attorney?

The prosecuting attorney can file a violation of 30.06/07 without the complaint of the property owner. The property kind of already made their desire to prosecute by the posting of the signs.

 

[Thirtymike]

Once on the signed premises, you realize your error. No crime is committed in the course of removing yourself (walking toward an exit) from the premises. Exercise your right to self defense on your way to the door and you're ok? LTC instructors please chime in.


Sent from my iPhone using Tapatalk

 

[txinvestigator]

Once on the signed premises, you realize your error. No crime is committed in the course of removing yourself (walking toward an exit) from the premises. Exercise your right to self defense on your way to the door and you're ok? LTC instructors please chime in.


Sent from my iPhone using Tapatalk

Entering past a validly posted sign is an offense. However, it does not negate your justification for self defense.

 

[locke_n_load]

Once on the signed premises, you realize your error. No crime is committed in the course of removing yourself (walking toward an exit) from the premises. Exercise your right to self defense on your way to the door and you're ok? LTC instructors please chime in.


Sent from my iPhone using Tapatalk

See posts #7 and #8.

 

[locke_n_load]

Entering past a validly posted sign is an offense. However, it does not negate your justification for self defense.

A little further down the rabbit hole.

Sec. 9.31. SELFDEFENSE.
(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:
(1) knew or had reason to believe that the person against
whom the force was used:
(A) unlawfully and with force entered, or was attempting
to enter unlawfully and with force, the actor's occupied habitation,
vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting
to remove unlawfully and with force, the actor from the actor's
habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated
kidnapping, murder, sexual assault, aggravated sexual assault,
robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was
used; and
(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.

What's bolded states that you can use force against any other type of unlawful force. If it does not fall under the subsections (1)(2)(3), you lose your automatic presumption of reasonableness, but it can still be found to be reasonable.

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is
justified in using deadly force against another:
(1) if the actor would be justified in using force against
the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes
the deadly force is immediately necessary:
(A) to protect the actor against the other's use or
attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of
aggravated kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery.
(b) The actor's belief under Subsection (a)(2) that the deadly
force was immediately necessary as described by that subdivision is
presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against
whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting
to enter unlawfully and with force, the actor's occupied habitation,
vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting
to remove unlawfully and with force, the actor from the actor's
habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense
described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was
used; and
(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.
(c) A person who has a right to be present at the location where
the deadly force is used, who has not provoked the person against whom
the deadly force is used, and who is not engaged in criminal activity
at the time the deadly force is used is not required to retreat before
using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an
actor described by Subsection (c) reasonably believed that the use of
deadly force was necessary, a finder of fact may not consider whether
the actor failed to retreat.

What's bolded here is that deadly force is lawful if you are found reasonable under 9.31, and if someone is committing one of the specific acts listed in (2)(A)(B). The use of deadly force for any other act against you is not lawful, period. Your use of deadly force can still be found reasonable even if you don't meet the automatic presumptions in (b), as long as something in (2)(A)(B) is occurring against you.

If that is correct, I never recognized that there is that much difference in 31 and 32 before.