Texas-Book-Gun Law Armed And Educated - Flipbook - Page 183
EXAMPLE:
One day, looking for a shortcut through the neighborhood,
Simon hops a fence (a trespass) and is walking across open
property to reach the street on the other side of the property.
Simon is confronted by the property owner and tries to explain
that he meant no harm and was just taking a shortcut. However,
the property owner becomes irate and cocks his gun, aims it at
Simon, and says “I’m going to kill you!”
Under this example, Simon is a trespasser, and since this is
considered being “engaged in criminal activity” under the statute,
Simon is disqualified from any legal presumptions under Sections
9.31 and 9.32. See discussion later in this Chapter regarding not
being engaged in criminal activity. As such, any presumption of
reasonableness to a belief in the immediate necessity of force or
deadly force will not be given to Simon, even though the property
owner made his intention to kill Simon very clear. Further, because
he is a trespasser and has no legal right to be at his location, Simon
will not be entitled to the “No Duty to Retreat” protections of the
law. The highest Texas criminal court has held that “the failure
to retreat may be considered in determining whether a defendant
reasonably believed his conduct was immediately necessary to
defend himself or a third person” Morales, 357 S.W.3d at 5. Thus,
a prosecutor could argue that before the use of force or deadly force
by Simon was immediately necessary, Simon should have retreated.
It does not mean Simon may not be ultimately legally justified in
defending himself; it just makes it more difficult to convince a jury
of his justification. Now, let us look a little further.
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