Further Proof That Texans Are Some Trigger-Happy Crackers

This really isn't about what anyone's personal idea of right and wrong is or how the dictionary/common law defines murder. What matters here is how Texas law applies in this case. Here's the law that Horn is relying on:

Quote:

Texas Penal Code

§ 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.


§ 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.


§ 9.43. Protection of Third Person's Property

A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:

(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person's land or property; or

(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

In order to be justified under this law, Horn has to not only meet the elements of 9.43, but also the elements of 9.41 or 9.42. However, 9.41 only covers force; 9.42 covers deadly force which clearly is what was used here. Therefore, in order to be lawful, Horn needs to meet the elements of 9.43 AND 9.42.

Notice the section under 9.42 that I highlighted. While Horn certainly meets some of the elements under the statute, 9.42 requires that this have happened during the nighttime, and this case happened at 2 PM, which is about as far away from the nighttime as one can get. Granted, innocent until proven guilty and all that jazz, but the law that he justifies his actions by is clearly against him on a critical point. The fact that a Texas state senator says that the law does not apply in this case only further demonstrates the law's intent.

All this probably explains why in the original article posted, it mentions that "His attorney says Horn just feared for his life." The attorney probably already realizes the law won't apply here and is hoping that he can get Horn off on some sort of self-defense theory. But Horn's conversation with the dispatcher is pretty damning to that defense, so that probably won't work either.

The lesson: wait until a nighttime burglary.

Jam it back in, in the dark.

Well, the jury can disagree with the statute if they want, but that just means it's a dead letter law, in which case the case defaults to the common law--and I'm pretty certain the jury can't override the common law murder rule.

There's nowhere I can't reach.