It’s midnight, and you awaken to strange sounds somewhere outside the front of your home. You get out of bed, grab your firearm, run to your front window and look outside. That’s when you see a masked man in your yard, peeking into your car, and looking around for security cameras. What can you legally do to stop him? Do you have to let him steal your property?
Let’s change it up a bit, what if the sound turns out to be broken glass from your front door, and you walk into your living room only to discover your front door wide open? You hear someone moving in the next room, and you know your wife and child are still in bed, asleep. What should you do?
These are very frightening scenarios we hope you never face, but we want you to understand the potential criminal consequences that you, as a responsible gun owner, could face if you use force or deadly force to defend against certain types of crimes involving property. Remember, many states strictly forbid the use of deadly force to protect your property.
Let’s look at the potential criminal consequences you could face if you decide to confront these types of perpetrators with force or deadly force.
Texas Penal Code Section 9.41 explains that a person is allowed to use force, but not deadly force, to terminate a mere trespass or interference with property.
- “Trespass” occurs when a person enters onto or into property, knowing that entry is forbidden or remains on the property after being told to leave by someone with authority.
- “Theft” or “Interference with Property” occurs when a person takes another’s property with the intent to deprive them of that property and without the owner’s consent.
Going back to the example above, if you grab your firearm, go outside and fire a shot at the trespasser or someone merely creeping around your yard, you will likely find yourself facing a serious felony. In these circumstances, Texas Law only permits the use of force, not deadly force.
Now, what if the trespasser sees you, but instead of running away, he comes toward you with a weapon in one hand and your property in the other? It’s important to note that this is no longer a mere trespass. It has quickly changed to an attempted murder or an aggravated robbery. This distinction is important when we discuss the use of force or deadly force because if you choose to use deadly force and fire upon the perpetrator, your conduct will likely be justified.
Remember, the starting point for using force or deadly force in Texas can be boiled down to two things: reasonableness and immediate necessity.
So, when can you use deadly force in Texas to protect property? Texas law allows you to use deadly force to protect property if you would be justified in using force, and you reasonably believe it is immediately necessary to prevent the imminent commission of specific enumerated property crimes. These are arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime.
Turning to the second example we discussed earlier, the sound of breaking glass and finding your front door wide open. It is very likely that you’ve discovered the imminent commission of one or more of the crimes where Texas law allows the use of deadly force. The bad guy is no longer a mere trespasser and his conduct is elevated to the point where he’s probably committing or attempting to commit burglary or worse.
Let’s take both examples one step further and address a common question we’re asked: “What happens if I discover that the criminal already has my property and runs away when he sees me approach with a firearm? What can I legally do to recover my property?” When it comes to using deadly force to recover your stolen property, Texas juries will have a three-step process to decide if you were legally justified.
- Step 1: The jury must find that you were justified under Texas Penal Code section 9.41 to use force to stop a trespasser or an interference with your property.
- Step 2: The jury must decide whether you had a reasonable belief that deadly force was immediately necessary to prevent a perpetrator from fleeing immediately after committing a burglary, robbery, aggravated robbery, or theft during the nighttime.
- Step 3: The jury must find that when you used deadly force to protect property, you reasonably believed it could not have been protected or recovered by other means; or using something less than deadly force would expose you to a substantial risk of death or serious bodily injury.
If the jury finds you were reasonable in your actions under all three of these steps, they should find your use of deadly force legally justified. Be very careful though. It may be a daunting task to convince 12 jurors that you acted reasonably in shooting someone to recover property alone, particularly where the criminal no longer posed a threat to you or your family.
Also, keep in mind this three-step analysis occurs after you’ve been arrested and charged with a crime for defending your property, during a trial, and nothing is ever guaranteed when you put a verdict in the hands of a jury.
It’s critical that you completely understand these legal concepts. If you have any questions about your rights to defend your property or any other self-defense law in Texas, don’t hesitate to call Texas Law Shield and ask to speak to your Independent Program Attorney.