We all know that nighttime can be scary. In some states, daytime can affect whether or not your use of deadly force is justified.
In Texas, the use of deadly force is not controlled solely by the rising and setting of the sun. You can use deadly force in one of those locations subject to the Castle Doctrine, such as an occupied home, occupied vehicle or place of work, or in response to a serious criminal act (such as murder, aggravated robbery, sexual assault, aggravated sexual assault, aggravated kidnapping, burglary, and arson).
However, Texas law also allows you to use deadly force in response to theft and criminal mischief, but only in the nighttime and provided you meet the other requirements to protect your property. So, what is the nighttime? Nighttime is defined as 30 minutes after sunset up through 30 minutes before sunrise. What’s criminal mischief? Criminal mischief is when someone intentionally or knowingly damages, destroys, marks, or tampers with your tangible property or deprives you of its value. What’s theft? A person commits theft when they unlawfully appropriate your property, with the intent to deprive you of your property. Remember: if you encounter criminal mischief or theft during the daytime, you may only respond with force, not deadly force.
If you find yourself in a situation where you have to use deadly force to counter another’s use of unlawful force that doesn’t fit into one of the categories listed, it must be reasonable under the circumstances. One of these circumstances will most certainly be the visibility of the threat you encounter. Generally, jurors will understand that the night amplifies the ominous and threatening nature of a criminal encounter. “Is that a weapon concealed in the darkness, are there other accomplices lying in the shadows?” These questions are born out of an instinctual fear of the dark that should be persuasive with those who judge your reasonableness. If the encounter occurs during the day, the prosecutor can argue, for example, that your perception of the attacker was unimpeded, and it was obvious they were alone, unarmed and not a threat.
As always, remain vigilant in protecting yourself and your property against crime. Just remember that the use of deadly force to protect property during the daytime could be more legally precarious than you might imagine.
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