What happens if i have to shoot someone in texas?

[Frank Ettin]

Originally Posted by csmsss

...I would always recommend to anyone who is involved in a self-defense shooting to speak with an attorney experienced in such cases before mouthing a word to the police....

That's a common recommendation, but if you are claiming self defense, it's not necessarily the best idea.

1. Here's what a lawyer and well known commentator on self defense law, Andrew Branca, says about not saying anything to the police without your lawyer:
   
   
   1. (emphasis in original)

      ...The “say nothing until lawyer” advice is based on the reality that anything you say to police can and may be used against you. It’s certainly true that the only 100% certain way to avoid saying anything incriminating is to say nothing at all.
      
      Rarely mentioned, however, is that what you DON’T say can also be used against you. Sure, you have a Constitutional right to remain silent, and once you’ve asserted that right your silence cannot be used against you.
      
      But this privilege applies post-arrest. Your silence before then can certainly be used by the Prosecution to infer guilt—an innocent person would have mentioned self-defense at the time, they’ll argue, and the fact that you did not do so suggests you only fabricated your story of self-defense after the fact to avoid criminal liability....

   2. (emphasis in original)

      The 911 Call: Be the Complainant, Not the Respondent
      
      A huge problem for Michael Dunn in his claim of self-defense was the considerable consciousness of guilt evidence he provided to prosecutors. In particular, his flight from the scene well beyond the need to secure his safety and his failure to ever report the shooting to law enforcement before he was arrested at gun point on a murder warrant. This conduct was far more consistent with the behavior of someone who believed he’d “gotten away with it,” than it was with the behavior who believed they’d acted in lawful self-defense. This was especially damaging given that the only evidence of self-defense came from Dunn’s own testimony in court....

   3. (emphasis in original)

      ...Let’s assume for purposes of this post, then, that you buy into the value of being the complainant rather than the respondent, and you therefore are the first to call 911.
      
      Taking the “say nothing until I talk to my lawyer” advice literally, exactly what are you going to say when the dispatcher answers your call? “I will say nothing until I’ve spoken to my attorney.” Really? When they ask “what’s your emergency?” surely that statement can’t be your reply. Rather, you’ll necessarily provide some description of what’s happened and the location to which you’re asking law enforcement (and ambulance) be sent.
      
      So, you’re ALREADY speaking with the police. And as long as you’re doing so, my advice is to get your claim of self-defense into the evidentiary record as soon as possible. You were attacked, you were in fear for your life, you were forced to act in self-defense. Of course, all of this will be recorded, and that recording will be admissible in court. As a result, the jury will get to hear your claim of self-defense in your own words and voice, with all the stress of the moment that such an event necessarily brings with it....

   
   
2. It's long been the fact that conduct can be evidence and that a jury may draw inferences from conduct.
   
   
   1. U.S. v. Perkins, 937 F.2d 1397 (C.A.9 (Cal.), 1990), at 1402:

      ...the instruction explicitly stated, "the jury may consider [the false statements] as circumstantial evidence of the defendant's guilt." Id. at 1104. Second, we have approved the use of this instruction on false exculpatory statements. See United States v. Boekelman, 594 F.2d 1238, 1240 (9th Cir.1979) (court noted approval of standard Devitt & Blackmar instruction and distinguished Di Stefano in upholding a variation from the standard instruction); United States v. Wood, 550 F.2d 435, 443 (9th Cir.1976)....

   2. State v. Wimbush, 260 Iowa 1262, 150 N.W.2d 653 (Iowa, 1967), at 656:

      ...In Wigmore on Evidence, Third Ed., section 276, Volume II, page 111, under the title 'Conduct as Evidence of Guilt' the editor states: 'It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.'
      
      McCormick on Evidence, section 248, pages 532, 533, puts it thus: "The wicked flee when no man pursueth.' Many acts of a defendant after the crime seeking to escape the toils of the law are received as admissions by conduct, constituting circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself. In this class are flight from the locality after the crime, assuming a false name, resisting arrest, * * *.' See also Jones on Evidence, Fifth Ed., section 386, page 717.
      
      We have held many times that evidence of escape from custody and flight of an accused is admissible as a criminating circumstance. State v. O'Meara, 190 Iowa 613, 625, 177 N.W. 563, 569; State v. Heath, 202 Iowa 153, 156, 209 N.W. 279, 281; State v. Ford, Iowa, 145 N.W.2d 638, 641. See also 29 Am.Jur.2d, Evidence, section 280, and 22A C.J.S. Criminal Law § 625 a....

   3. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (Neb., 1991), at 743:

      ... Although Clancy involved evidence of the defendant's attempted intimidation or actual intimidation of a State's informant or witness, evidence which was admissible under Neb.Evid.R. 404(2) ("other acts"), the rationale for "conscious guilt" evidence is equally applicable in Lonnecker's case.
      
      Lonnecker's hiding in the crawl space was evidence of his "conscious guilt" concerning the marijuana located on the premises which were under his control, that is, a conscious guilt concerning possession and cultivation of marijuana as a controlled substance. ...

   4. Martin v. State, 707 S.W.2d 243 (Tex.App.-Beaumont, 1986), at 245:

      ...In 2 RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL sec. 1538 (Texas Practice 3rd ed. 1980), we find:
      
      "Sec. 1538 Conduct as Evidence of Guilt
      
      "A 'consciousness of guilt' is perhaps one of the strongest kinds of evidence of guilt. It is consequently a well accepted principle that any conduct on the part of a person accused of crime, subsequent to its commission, which indicates a 'consciousness of guilt' may be received as a circumstance tending to prove that he committed the act with which he is charged." ...
      
      See also Cuellar v. State, 613 S.W.2d 494 (Tex.Crim.App.1981)....

   
   
3. Also see post 6.

[pax]

Here's an excellent video on that topic, also from Andrew Branca.

https://www.corneredcat.com/dont-tal...e-good-advice/

pax

[bungiex88]

I was told no matter what if you were even in the right to do so you don't tell the cops nothing until you talk to a lawyer. Near tell the police the story because most are taught you are guilty until proven innocent now days.

[pax]

Oh, well, if you were told differently, I guess it doesn't matter what case law or expert advice says.

pax

[Frank Ettin]

Originally Posted by bungiex88

I was told no matter what if you were even in the right to do so you don't tell the cops nothing until you talk to a lawyer....

It would be useful to consider who told you that. Anyway, some lawyers and others with some knowledge about how the law works have some different recommendations -- at least when self defense is involved.

See posts 6, 26, and 27.

[Brit]

In the case of a 911 call, in which you are reporting some act, an act that you were involved in, you really must give information, at that time, to obtain a response, you did call them, did you not?

The response, in my experience, has been "What is your emergency?"

That sets up the tenure of all that follows?

[kilimanjaro]

If you say nothing when the cops show up at your self-defense shooting scene, you will be arrested and jailed. Guaranteed. You'll get to talk to your lawyer then. I'll bet that's not going to be the same idiot that advised you to clam up, either.

If you tell them the basic facts, instead, being "I was attacked. I had to shoot. He had a knife. I'm pretty shook right now, I'll give you a full statement tomorrow at the station.", you probably won't be arrested, you probably won't go to jail for a day or two, you won't lose your firearms, and you won't be the laughingstock of the legal community.

[rickyrick]

I know of several defensive shootings, non were arrested that I know about.

It does go to the DA briefly, then no charges filed.

[Spats McGee]

Being charged with a crime following an SD shooting is fundamentally different than being charged with a garden-variety crime. In many jurisdictions, SD is an affirmative defense. In some jurisdictions, it's a "simple" defense. In either case, it's incumbent on the defendant to produce some evidence that the shooting was, in fact, a case of SD.

That means that in the case of garden-variety charges, a defendant's best posture is often one of: "You can't prove that I did it." In the case of charges arising from an SD event, the SD Shooter/Defendant has to admit to having shot (& perhaps killed) someone in order to claim SD, so his posture is more like: "I did it, but I had a REALLY good reason."

Because of the preceding, it's really important for the SD Shooter to get the investigation off to a good start. If the bad guy threw his knife down a storm drain, the SDS needs to tell the police, "He had a knife and he threw it down that storm drain." If he doesn't, no cop in the world is going to go down that drain looking. If the bad guys used improvised weapons, SDS needs to point them out. Otherwise, the broken bottle with which Thug #1 threatened you is just a broken bottle, not a reason to shoot.

In dealing with the police in the aftermath, the best thing would be to say the right thing. The second best thing is to say nothing. The worst thing would be to say the wrong thing.

[Tom Servo]

I know of several defensive shootings, non were arrested that I know about.

I know of several people who exceed the speed limit on a regular basis. None have been cited that I know about. That doesn't mean I'm going to go whizzing through a school zone at 90mph.

I'm acquainted with several people who've been involved in self-defense shootings. In two of those cases, the situation was fairly obvious, and no arrests were made. Both people had to testify before a grand jury.

Another case involves someone I'll call Bob. A man beat and killed someone in front of several witnesses. The man then took the victim's car and tried to get away. In the process, he struck Bob's car. When Bob stopped, the man attacked him. Bob shot him, again in front of several witnesses.

Bob was charged. Bob had to make bail. Bob had to pay over $4000 in legal fees. Bob got raked over the coals in a very long grand jury investigation before the DA decided not to charge him.

There is simply no way to say that X will happen if you do Y. None. A homicide has been committed, and everything goes on the line.

[Frank Ettin]

Originally Posted by Spats McGee

...That means that in the case of garden-variety charges, a defendant's best posture is often one of: "You can't prove that I did it." In the case of charges arising from an SD event, the SD Shooter/Defendant has to admit to having shot (& perhaps killed) someone in order to claim SD, so his posture is more like: "I did it, but I had a REALLY good reason."...

Folks need to ponder and truly understand what my colleague, Spats McGee, has pointed out here. If you are claiming self defense "innocent until proven guilty" doesn't mean anything. You will necessarily have to admit to having committed acts which are the elements of the crime you're charged with.

Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.

As Ms. Steele explains the unique character of a self defense case in Part 1:

...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use....

[Oysterboy]

Frank, thank you for post #6. Now I have a clear understanding that I did not get in my conceal carry class. I just had the paperwork done and now awaiting my permit.

[markm_04]

Noone can tell you for sure how the process will go after the incident.

One thing to remember though, if you HAVE to shoot someone in self-defense and are legally justified in doing so as your OP says, you are the one that is alive and walking away. You will get to see your family again and did absolutely nothing wrong in defending your own life or someone's life that you care about.

[Spats McGee]

Originally Posted by markm_04

Noone can tell you for sure how the process will go after the incident.

One thing to remember though, if you HAVE to shoot someone in self-defense and are legally justified in doing so as your OP says, you are the one that is alive and walking away. You will get to see your family again and did absolutely nothing wrong in defending your own life or someone's life that you care about.

Yes, but the other thing to remember is that the SD Shooter doesn't get to decide whether the shooting was legally justified. That's up to a great many other people including police, investigators, prosecutors, and perhaps a judge and jury.

[markm_04]

I understand what you are saying and it is true, but if you are six feet under, it really doesn't matter what other people decide then.

[zincwarrior]

Oh, well, if you were told differently, I guess it doesn't matter what case law or expert advice says.

pax

Wait, are you advising someone to not wait for their attorney before speaking with police? Trying to get more clarity on what your advice is.

[Tom Servo]

Wait, are you advising someone to not wait for their attorney before speaking with police? Trying to get more clarity on what your advice is.

I don't believe she, or anyone else in the thread, is saying that.

You do need to be careful what you do say to law enforcement. You're going to be coming down off a tremendous adrenaline rush, and you may blab something that could be used against you later.

"He kicked in the door and attacked me with a knife" is good. It helps establish the situation.

"That ratchety sleazebucket deserved a few extra holes" is not so good. It implies a vigilante mindset.

Generally, the best thing to do is give law enforcement the information they need to secure and process the scene. That guy on the floor kicked in my door. He had the knife that's over there. I discharged this weapon. Those two people there witnessed the event. I'll be glad to cooperate, but I'm a mess right now. I'd like to have an attorney present during questioning.

I suppose I have the right to clam up and refuse to say anything, but that could lead to critical evidence being overlooked.

[zincwarrior]

Quote:
Wait, are you advising someone to not wait for their attorney before speaking with police? Trying to get more clarity on what your advice is.
I don't believe she, or anyone else in the thread, is saying that.

You do need to be careful what you do say to law enforcement. You're going to be coming down off a tremendous adrenaline rush, and you may blab something that could be used against you later.

"He kicked in the door and attacked me with a knife" is good. It helps establish the situation.

"That ratchety sleazebucket deserved a few extra holes" is not so good. It implies a vigilante mindset.

Generally, the best thing to do is give law enforcement the information they need to secure and process the scene. That guy on the floor kicked in my door. He had the knife that's over there. I discharged this weapon. Those two people there witnessed the event. I'll be glad to cooperate, but I'm a mess right now. I'd like to have an attorney present during questioning.

I suppose I have the right to clam up and refuse to say anything, but that could lead to critical evidence being overlooked.

Ok, as noted was trying to clarify. Your statements above are exactly in line with what I have been told as well (at least for Texas).

[skizzums]

I live in Georgia, so I can't speak for what goes on in Texas, but we have almost daily CCW usage in the news here and I have yet to hear of the defender getting arrested. Just in the last month, we have a man at a car wash shoot the driver of SOMEONE ELSE'S carjacked car,a man defending his life during a smoke shop robbery and a man holds a would be carjacker at gunpoint until police arrive. That's just outside the home ccw, this doesn't include thw dozens of burglars that get shot every year. But I have yet to hear a case of the ccw holder getting arrested after a "good" shoot. I'm not saying it doesn't ever happen and tgat we shoukdnt take time to understand the laws and repercussions, I just think its outside the normal to be put in cuffs IF the police have reason to believe you were in fear of injury or death. But like I said, this is Georgia, and the courts seem to be working on our side lately.

[NJgunowner]

In NJ you'd end up in jail. Even though we do have some right to self defense, most prosecutors are of the opinion you should just go ahead and get die. Then the cops will arrest them and they'll go to jail for murder.

[zincwarrior]

Indeed. As noted, jurisdiction matters a lot.

[Spats McGee]

Originally Posted by skizzums

. . . . I just think its outside the normal to be put in cuffs IF the police have reason to believe you were in fear of injury or death.

It's also important to remember that the police also put people in cuffs for officer safety. I've heard a lot of griping about that phrase ("officer safety") over the years, but even if the police have a hunch that it really was SD, the shooter may find himself or herself in handcuffs for a while.

[Spats McGee]

Originally Posted by markm_04

I understand what you are saying and it is true, but if you are six feet under, it really doesn't matter what other people decide then.

True enough, but there's a line of thinking that goes something like this: "a good shoot is a good shoot." The same folks that spout that overlook the fact that the shooter doesn't get to make that call.

[Frank Ettin]

Originally Posted by skizzums

...I have yet to hear a case of the ccw holder getting arrested after a "good" shoot....

But again, you don't get to decide if ir was a good shoot. If the police and prosecutor decide it was a good shoot you won't be arrested (or you'll be arrested and quickly cleared). But if you thing it was a good shoot, but the prosecutor and/or grand jury don't, you will get arrested; and it won't be a good shoot unless the jury at your trial decides it is.

Originally Posted by zincwarrior

....As noted, jurisdiction matters a lot....

Maybe or maybe not. See post 6. Hickey, Abshire and Fish were in "gun friendly" States.

[kilimanjaro]

Of all the SD shootings noted above, where the shooter was not arrested, how many of them involved the shooter clamming up when the police showed up, refusing to say anything without a lawyer?

I'm betting not a single one.

Also, several shootings were in public, with witnesses, giving the police more than just the shooter's word for it.

When the police show up and find you standing over a body, or two, with a smoking gun in your hand, you'd better tell them the basics. "This is my house. I live here. I woke up and found these men in the hall. They attacked me. I was afraid for my life. I shot them both. They had a screwdriver and that iron bar you see on the floor. I'm pretty shook, I'll make a full statement tomorrow downtown. What time should my lawyer and I come by?"