Here are the Texas statutes
that justify the use of deadly force in defense of property:
Originally Posted by Texas Penal Code Section 9.41 & 9.42
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.
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
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; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
The biggest issue I see off the top of my head is that stealing a potted plant from your neighbor's yard is theft. Under Texas law, deadly force may only be used to prevent the imminent commission of theft during the nighttime
or prevent the other who is fleeing immediately after the theft during the nighttime
from escaping with the property
According to online sources, dawn was at 7:14am on the day of the shooting and the article reports the shooting took place around 8am... meaning it was about 45 minutes into daytime if the report is correct. The second issue is that if the shootee did something rational like drop the plant or flee, then any shot that struck him after that point may be problematic for the homeowner who can no longer claim a reasonable belief that the shot was necessary to prevent him from escaping with the property.
I'll be interested to see how this plays out legally. There have been cases like this that have been no-billed and cases like this where they buried the guy under the jail. Tough to say how it will play out.
Here is a Google Maps link to the site of the shooting: http://g.co/maps/93dq7