Texas-Book-Gun Law Armed And Educated - Flipbook - Page 223
Was Gary justified under Section 9.42 to use deadly force?
To answer this question, start the three-step analysis under
Section 9.42. First, is Gary justified under Section 9.41 to use
force? Gary has to show a jury he had a reasonable belief that it was
immediately necessary to use force to stop the interference with his
property or a trespass. It seems pretty clear that with his TV and
watch being stolen, there is both interference with property and
a trespass. So if Gary reasonably believes (as decided by a jury)
that force is necessary to stop the threat, he may use force under
Section 9.41. Gary likely passes step one.
Next, under Section 9.42, the jury will decide if Gary had a
reasonable belief that his use of deadly force was immediately
necessary to prevent burglary, theft during nighttime, or to prevent
the person he shot from fleeing immediately after the person
committed a burglary or theft during the nighttime from escaping
with his TV and watch. This second requirement seems fairly
straightforward, and Gary likely passes step two, as well.
Finally, a jury must find Gary’s belief reasonable that his TV and
watch could not have been protected or recovered by other means,
or that using less than deadly force would have endangered him or
another under the language of Section 9.42. In this case, the jury
is again the ultimate arbiter, and persons may reasonably disagree.
Because there are no legal presumptions of reasonableness available
to Gary in protecting property, we do not know how the jury will
decide this case, but the facts definitely seem to be in Gary’s favor.
212 | CHAPTER TEN
