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Old June 30, 2009, 08:36 PM   #26
MLeake
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Posters need to remember that there are these things called states...

... which have a degree of sovereignty in setting their criminal codes.

Knowledge of Tennessee or Florida or Alaska law might, but does not necessarily, help with knowledge of Texas law.

Texas tends to give homeowners a lot more leeway in the defense and recovery of property. The posters from Texas all seem to believe nighttime burglary falls under Texas felonies, and would allow homeowners to pursue.

I don't know how this will pan out, but just bear in mind that your legal absolutes may not have bearing in other people's instances.

Tactically, was it smart to pursue instead of call the police? Probably not. Was it illegal in this case? We'll see...
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Old June 30, 2009, 08:52 PM   #27
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Yes our state allows the florida resident to handle this case the same daylight or dark.... Property issues not with standing either!
Put a boot on the door of an occupied dwelling and you are committing a violent felony and any means needed may be used to stop this crime and the criminal.
Home invasion is an absolute~! Female dog equivalent slang comes to mind!
Brent
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Old June 30, 2009, 08:53 PM   #28
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The law gives a lawful occupant of a house the right to defend himself against an intruder. But once the intruder has left the house and even the property, that right of the occupant to protect himself in his home vanishes, even in Texas.

Here, the persons took it on themselves to leave the house and hunt down the intruder; at that point they became the aggressors. I suspect they saw themselves as avengers and would probably have killed him no matter what he did; his attempt to defend himself gave them an excuse of sorts for the killing.

Some posters seem to think they can kill anyone who bothers them and get away with it. Those folks need a dose of reality; I hope they don't kill someone and find that life in prison is not a TV show.

Jim
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Old June 30, 2009, 08:53 PM   #29
OuTcAsT
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Quote:
Knowledge of Tennessee or Florida or Alaska law might, but does not necessarily, help with knowledge of Texas law.
You are correct, of course.

Quote:
Of course you've checked the appropriate Texas statutes. Burglary is, indeed, a Felony.
Of course I have, and you are incorrect, it is not a felony. Read, and be enlightened, to wit; (TEXAS PENAL CODE)


Quote:
§ 30.02. BURGLARY. (a) A person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
A number of terms in this statute are defined in the TPC. “Effective consent” basically means voluntary consent by a competent person. Sec. 1.07 provides
(19) "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:
(A) induced by force, threat, or fraud;
(B) given by a person the actor knows is not legally authorized to act for the owner;
(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or
(D) given solely to detect the commission of an offense.
Sec. 30.02 (b) provides:, "’enter’ means to intrude: (1) any part of the body; or (2) any physical object connected with the body” (e.g., crowbar). Notice that the common law requirement of a “breaking” is not included, and the person does not have to get completely inside the habitation or building. The second form of burglary, requires no entry with intent. It requires “remaining concealed” with intent after entering, even if the initial entry was with consent. Note that the intent to commit the other crime,(a) (1) and (2), must occur at the same time as the entry or remaining.
Other terms are defined in sec. 30.01:

§ 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or
he enters or remains in a building of another without effective consent and he:
129 Burglary, Trespass, Arson, and Mischief
(1) had notice that the entry was forbidden; or
(2) received notice to depart but failed to do so.
Note that unlike burglary, there is no requirement of any intent to commit another crime. Some of the key terms are defined in the section:
(b) For purposes of this section:
(1) "Entry" means the intrusion of the entire body.
(2) "Notice" means:
(A) oral or written communication by the owner or someone with apparent authority to act for the owner;
(B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock;
(C) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden;
(D) the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:
(i) vertical lines of not less than eight inches in length and not less than one inch in width;
(ii) placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground; and
(iii) placed at locations that are readily visible to any person approaching the property and no more than:
(a) 100 feet apart on forest land; or
(b) 1,000 feet apart on land other than forest land; or
(E) the visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry.
Note the difference in the definitions of ‘entry’ between burglary and criminal trespass. “Effective consent” is defined as in the offense of burglary. Depending upon the type of area entered and certain other circumstances, the offense ranges from a Class C Misdemeanor (fine only) to a Class A misdemeanor.

Quote:
And where do you get the idea that you can't make a citizen's arrest for a misdemeanor
Perhaps I just pulled it from my rear, same as you, unless , of course, you would care to post the statute that gives you arrest authority. perhaps you could cite some of the cases you claim knowledge of ?
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Old June 30, 2009, 08:59 PM   #30
wickedrider
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One major point that no one seems to have addressed. So far in the report, I haven't heard of a gun being recovered. The only people who "saw" the gun were the Homeowner and his brother. BG's not talking.
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Old June 30, 2009, 08:59 PM   #31
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Florida law allows detainment of a suspect involved with a violent felony at any means of force needed until LEO arrives!
Going after the suspect so LEO knows where he is likely allowed if you had a visual ID of said punk!
Brent
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Old June 30, 2009, 09:01 PM   #32
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Wicked, No weapon is required in the hands of the violent felon in florida! Not burglary... home invader.
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Old June 30, 2009, 09:03 PM   #33
OuTcAsT
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Quote:
The law gives a lawful occupant of a house the right to defend himself against an intruder. But once the intruder has left the house and even the property, that right of the occupant to protect himself in his home vanishes, even in Texas.

Here, the persons took it on themselves to leave the house and hunt down the intruder; at that point they became the aggressors.
Mr. Keenan has it spot on.
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Old June 30, 2009, 09:08 PM   #34
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No weapon is required in the hands of the violent felon in florida!
You are correct Brent, FL does indeed classify burglary as a class 1 felony, but we are discussing a different State, so different rules apply.
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Old June 30, 2009, 09:15 PM   #35
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does pursuit make one an aggressor?

If the homeowners pursued with intent to engage, an argument could be made that they intended to escalate the situation, and it could conceivably be inferred that they acted as aggressors.

OTOH, if the homeowners pursued with intent to report to police on the location of the burglar, and the burglar caught on and confronted them, it could easily be argued that the burglar escalated the situation.

The intent of the pursuit could matter.

Again, not sure what the law in Texas says about pursuing a person who has committed a crime on one's property.

With regard to OuTcAsT's comments, I think he may have confused two separate crimes. Criminal Trespass is not a felony. However, if he'd read a bit further down the Texas penal code on burglary, it becomes obvious that this crime would have qualified as either a second or first degree felony, depending upon intent:

§ 30.02. BURGLARY. (a) A person commits an offense if,
without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion
of a building) not then open to the public, with intent to commit a
felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony,
theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or
attempts to commit a felony, theft, or an assault.
(b) For purposes of this section, "enter" means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.
(c) Except as provided in Subsection (d), an offense under
this section is a:
(1) state jail felony if committed in a building other
than a habitation; or
(2) felony of the second degree if committed in a
habitation.
(d) An offense under this section is a felony of the first
degree if:
(1) the premises are a habitation; and
(2) any party to the offense entered the habitation
with intent to commit a felony other than felony theft or committed
or attempted to commit a felony other than felony theft.
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Old June 30, 2009, 09:16 PM   #36
hogdogs
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Yes it is a different state. But does that state deem forcible violent entry into an occupied dwelling as just burglary or is it a "home invasion" by simple definition? Sliding the window of the bathroom compared to booting a main entry door is often the difference in many states....
Brent
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Old June 30, 2009, 09:27 PM   #37
OuTcAsT
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Quote:
With regard to OuTcAsT's comments, I think he may have confused two separate crimes. Criminal Trespass is not a felony. However, if he'd read a bit further down the Texas penal code on burglary, it becomes obvious that this crime would have qualified as either a second or first degree felony, depending upon intent:

MLeake,

That part did not escape me, and it is possible you may be proven correct. The article is a bit thin on detail but, it appeared that the guy kicked in the door, and the chase began, whether the decedent entered the residence will be he deciding factor I reckon. Excellent point, as details emerge we shall see more I'm sure.

Either way, a pursuit is likely not the wisest action legally, or tactically.
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Old June 30, 2009, 09:31 PM   #38
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Quote:
But does that state deem forcible violent entry into an occupied dwelling as just burglary or is it a "home invasion" by simple definition?
Usually that would depend on whether the BG Knew the dwelling was occupied or not, tough to prove if the BG has assumed room temperature.
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Old June 30, 2009, 09:34 PM   #39
MLeake
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another example of a pursuit

While I don't know in this instance what the intent of the homeowner was, or the intent of the decedent, or whether the decedent initiated gunplay, I'd like to ask a question about another pursuit by civilians.

A few years ago, my father was badly injured in a crash caused when a young idiot in a Mustang forced his way from an on-ramp into busy interstate traffic, then cut across three lanes to try and go fast. He ran my dad into the median. My dad's car spun out of control, ending up in the oncoming lanes, and in an offset headon with a Jeep. The Jeep driver was hurt even worse than my father was.

The Mustang took off. Several witnesses in other cars followed the Mustang, giving running reports via cell phone to 911.

Theoretical: What if the Mustang driver had attempted to run those witnesses off the road (assault with a deadly weapon: vehicle) or had pulled a gun on the other drivers? Would it have been the fault of the other drivers for "escalating?"
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Old June 30, 2009, 09:36 PM   #40
hogdogs
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That whole room temp thing is a kick in the shorts for bad folks in many of the 50 states these days.... same with those outside the auto... let the kind officer know he slapped you and told you the car was his now...
Brent
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Old June 30, 2009, 09:37 PM   #41
skydiver3346
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Guy chases burglar:


Let's see now: The bad guy who is armed, breaks down your door in a home invasion, (scaring the hell out of you and your family). You and your brother grab your guns and chase the felon down the street so you can make a citizen's arrest. The bad guy pulls a gun on you (for stopping him because he just broke in your home) so you shoot him before he shoots you!

May not be "textbook" justified in the eyes of some, but I guarantee you that a lot of folks out there might do the exact same thing. Some of you would not, I can understand that as well. I would have probably done exactly what the victim did, (knowing myself and my beliefs). The burglar is the bad guy here! He pulled a gun on the citizen (he just tried to rob) and unfortunately, paid the price for his decisions. Right or wrong in this situation, things like this have to happen to you personally, (before you can really understand why people react the way they do to crimes being committed against them). I know, because I have been there before myself.
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Old June 30, 2009, 09:38 PM   #42
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Quote:
"Police are not sure if the homeowner's brother will face any charges, saying the shooting may be considered a case of self defense."
Seems to be more and more common that the police feel the incident could easily be self defense, but members of a forum condemn the citizen.

It appears that some are rather phobic in that respect.

Once again someone has condemned the intended VICTIMS and claimed they put themselves in the situation by FORCING the criminal to defend himself after committing an armed invasion of their home.

I'm not defending their tactics, but I'd like to see Bubba share some of the responsibility for his own demise.

OK, I'm drinking Red Bull again, but some folks are sick and tired of being crime victims. If I'm on the jury with a couple of posters I could mention, we'll have one hell of an argument, won't we?

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Old June 30, 2009, 09:49 PM   #43
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[quote]Churns my stomach to hear some point out that the original VICTIMs "put themselves" in the situation without mentioning the initial criminal act by the[COLOR="red"]CRIMINAL[COLOR="red"] while the intended VICTIMS turned the tables on the CRIMINAL who then DREW A GUN and was shot by his intended VICTIMS[quote]

Vigilantism is irresponsible, people who own guns should know better.
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Old June 30, 2009, 09:59 PM   #44
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Since this forum is a worldwide meeting place... i revert to florida's rules... commit a violent felony and the guy running you down is not a vigilante. He is a concerned citizen well within the law and doing his state given right to stop a violent felon at any level of force he may need! Bugger for the bad guy! Legal use of force is fine by me! so far I see nothing that makes this less than clean shoot had it occurred in Florida.... I doubt Texas has too much more limitation in these situations of violent home invasion. Booting a front door and not expecting a person home is a big ol' stretch... I don't care if everyone on the block is at work and you ring my door bell, I choose who I answer to! Home? Front door? obviously not an abandoned home... CONSIDER IT OCCUPIED! Bed ridden elderly folks or preggo wifey.... They may wish to ignore the possible magazine salesman and religious recruiters! Didn't ring? No reason to consider the dwelling unoccupied!
No defense for the defense!
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Old June 30, 2009, 09:59 PM   #45
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Quote:
Vigilantism is irresponsible, people who own guns should know better.
We agree on that. What me may disagree on is the definition of vigilantism.

In a number of instances where the police said it was self defense, we still had the usual condemnations by folks who seem to have their own definition.

Some believe it's always the fault of the citizen attempting to apprehend the criminal should an injury, or worse, occur to the latter. Talk about quick on the trigger.
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Old June 30, 2009, 10:02 PM   #46
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Quote:
A few years ago, my father was badly injured in a crash caused when a young idiot in a Mustang forced his way from an on-ramp into busy interstate traffic, then cut across three lanes to try and go fast. He ran my dad into the median. My dad's car spun out of control, ending up in the oncoming lanes, and in an offset headon with a Jeep. The Jeep driver was hurt even worse than my father was.

The Mustang took off. Several witnesses in other cars followed the Mustang, giving running reports via cell phone to 911.

Theoretical: What if the Mustang driver had attempted to run those witnesses off the road (assault with a deadly weapon: vehicle) or had pulled a gun on the other drivers? Would it have been the fault of the other drivers for "escalating?"

Wow, Bad situation, good question. I will assume we are trying to contrast these two incidents, in the burglary, the BG saw the residence was occupied, and fled, thus basically ending the threat himself. Had the brothers not chased him, called the 5-0 and reported this guy they knew, that would likely have ended in an arrest of the BG, and end of story.

In the case of your Dad, this was a crime that had the potential to continue. had the guy kept driving, and good witnesses continued to go their merry way while providing intel to police, resulting in an arrest, that is the best outcome. Had the H&R driver started running people off the road, or pulled a weapon, that would be a crime that was continuing, and would be dynamic until he was arrested or bit the dust himself. Driving down the road and passing info to police is not aggressive, chasing a wanna-be burglar, and confronting him yourself is. (IMHO)
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Old June 30, 2009, 10:06 PM   #47
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Mr. Composer:

Quote: "Vigilantism is irresponsible. People who own guns should know better".......

Yeah, that is a brilliant assumption for sure! Why the hell should we own guns, if we can't prevent a crime being committed against us or our family? Does that make us irresponsible? To you I guess it does.

When the bad guy (who just broke down you door) pulls a gun on you (when you try to stop them), he definitely risks being shot for making bad decisions like this. All this happens in just a few seconds and no one is thinking "I"M A VIGILANTE"......... They are trying to stop the intruder and make sure he is arrested for his actions. If the bad guy escalates the situation by pulling a gun on his victim, (again that is another bad decision on his part) and he may get more than he bargained for with that decision.
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Old June 30, 2009, 10:08 PM   #48
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[Quote]We agree on that. What me may disagree on is the definition of vigilantism.

In a number of instances where the police said it was self defense, we still had the usual condemnations by folks who seem to have their own definition[Quote]

This is how i see it, strictly just my opinion. This scenario is pretty simple the BG fled, they wanted revenge and justice because they knew the guy.
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Old June 30, 2009, 10:13 PM   #49
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quote: Yeah, that is a brilliant assumption for sure! Why the hell should we own guns, if we can't prevent a crime being committed against us or our family? Does that make us irresponsible? To you I guess it does.

When the bad guy (who just broke down you door) pulls a gun on you (when you try to stop them), he definitely risks being shot for making bad decisions like this. All this happens in just a few seconds and no one is thinking "I"M A VIGILANTE"......... They are trying to stop the intruder and make sure he is arrested for his actions. If the bad guy escalates the situation by pulling a gun on his victim, (again that is another bad decision on his part) and he may get more than he bargained for with that decision... Quote]

If you blatantly chase a BG down its vigilanstism. The intruder already removed himself thus ending the threat. Someone chasing a BG down and shooting them is just as bad as a gang hit. Of course i'd kill someone in self defense but I won't go driving around trying to kill someone.
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Old June 30, 2009, 10:15 PM   #50
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Not quite contrasting the incidents

because I still don't know what the intent of the brothers was (revenge, citizen's arrest, recon to pass location to police - could be any of the above, or something I haven't thought of).

Therefore, I can't really contrast the two.

However, for those who feel that citizens should not pursue bad guys, and that any citizen who should pursue, for whatever reason, bears liability for outcome to the bad guy, I thought it would be interesting to throw in the traffic hit and run scenario.
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