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K.Mooneyham wrote: ↑Sun Nov 28, 2021 8:26 pm In reply to "MikeS", please define the term "butt whooping". I am curious where the line is drawn and how beaten someone has to be before it's not just a "butt whooping". How injured does someone have to be before it becomes "serious bodily injury"? Why should anyone have to put up with having someone else attempt to beat them? I'm an aircraft mechanic, and not a weakling per se, but I'm also no longer a young man. Additionally, I don't have any particular hand-to-hand fighting skills, such as tae kwando, krav maga, or kung fu. How am I to know if someone assailing me does have those skills, before it might be too late? To paraphrase that famous John Wayne character, I don't put my hands on anyone else and I shouldn't have to put up with anyone else doing that to me.

If it helps, here is the definition of serious bodily injury from the Penal Code Section 1.07(a)(46):

(46) "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

The way I was taught, permanent disfigurement means a scar or worse. Protracted loss or impairment of any bodily member or organ means a broken bone, a sprain, or similar injury. A big portion of the problem with this definition is that a lot of it depends what the DA will accept for it. In Bexar county, it was how I said above (at least while I was on the PD there). In Caldwell county, a lot more rural and conservative, the general rule was if it required medical treatment in the ER. Calling EMS was not enough but if they transported it was.

As to your question about the other person's skills, the answer is going to rely on common sense, unfortunately. There is a legal concept the courts have used called a disparity of force. For example, a 120 lb, 5'2" female can expect more injury and use more force against a 200 lb, 6'1" young male. Same for someone like me (a 65 year old in poor shape and with sever arthritis in multiple joints) against the 20 year old man who lifts weights and works out. In both cases, the opposite holds. The young fit male cannot escalate if fighting me or the small female.

I think Mr. Branca is correct when he says that the overriding legal theory is reasonableness. Is your behavior reasonable to the average person IF he was in that situation knowing what you knew then.

wil wrote: ↑Fri Nov 26, 2021 10:37 amI'm not an attorney however the word 'and' carries the meaning of 'in addition to..' meaning as well as section 9,41, there are other situations this applies to.
An attorney would probably be able to answer that more clearly if needed,however reading that as its worded thats what it comes across as, I don't see any reason to read it otherwise.

In addition to that, 9.41 doesn't specify what force it's calling out, only the use of force. however 9.42 calls out lethal force if force is justified under 9.41.

We can argue this till the cows come home, it is one of the most damnable aspects of the law, how it's written and how unclear it is generally.
If someone can clarify these two sections, so much the better however I don't see those two sections being different from my understanding of them.

And the usual arguments of: "are you going to shoot a 9 year old kid for trespassing?" Or other such 'what-if's" That'd be no and a foolishly extreme example. It's self-evident arguments such as that don't fit the laws.

I agree that the ambiguity with which most laws are written is one of the worst things about the law. You can get some clues on reading them by checking Government Code Chapters 311 and 312 on Code Construction as general guidelines to the interpretation of the laws. I am not a lawyer either, so any reading I give may be as wrong as anyone else's. My training in this taught me to use the terms "and" and "or" like logic requires instead of what may occur in normal speaking or writing. "And" requires the terms on both sides of the word to be met, while "or" says either side or both can be met. So, I read this as saying in 9.42 that to use deadly force, subsections 1, 2, and 3 must all be true.

We can agree to disagree on this. I freely admit that I could be wrong and you could be correct. However, I do strongly suggest that you ask a lawyer (preferably the one you would hire if you ever need a defense attorney) for his interpretation before you rely on either of our interpretations.

And I also agree that proposing ridiculous theoretical cases helps no one in an understanding of the law.

wil wrote: ↑Fri Nov 26, 2021 9:54 am

srothstein wrote: ↑Fri Nov 26, 2021 9:42 am

wil wrote: ↑Fri Nov 26, 2021 8:47 am

srothstein wrote: ↑Thu Nov 25, 2021 11:59 pm I don't see this as coming out well for the shooter no matter what. There was no property being taken or threatened (according to the news article) and no person being threatened until he brought the gun out. That makes criminal trespass the only crime the deceased committed. Unfortunately, Texas law does not recognize stopping criminal trespass as justifying deadly force.

It will be interesting to see how the AG handles it. Who provoked the initial confrontation and who escalated it will be critical points, as in most self-defense cases.

Tx law specifically mentions trespass as grounds for lethal force.

Penal code 9.41 section a.

fool in the aqua shirt was told to leave from the beginning, didn't go.

I suggest you read that again. 9.41 is just the justification for force and not deadly force. 9.42 is the section justifying deadly force and it does not list trespass.

9.42(1) cites 9.41. If force is justified in 9.41, then lethal force is justified under 9.42(1). trespass is specifically called out in 9.41, 9.42(1)cites 9.41 as grounds for lethal force.

Yes, but 9.42 has a AND clause where it must be justified by 9.41 AND meet the other conditions in subsection 2 and 3. Since trespass is not listed in subsection (2), lethal force cannot be justified to stop it.

eyedoc wrote: ↑Fri Nov 26, 2021 8:30 am

srothstein wrote: ↑Thu Nov 25, 2021 11:59 pm I don't see this as coming out well for the shooter no matter what. There was no property being taken or threatened (according to the news article) and no person being threatened until he brought the gun out. That makes criminal trespass the only crime the deceased committed. Unfortunately, Texas law does not recognize stopping criminal trespass as justifying deadly force.

It will be interesting to see how the AG handles it. Who provoked the initial confrontation and who escalated it will be critical points, as in most self-defense cases.

How can it be trespass if he were legally allowed there to get his kids?

The problem is one of who owns the property and can give him permission. If the mother was living there with him, she can give permission only up to a certain extent. The owner of the property can override it and revoke that permission. Some of it will depend on if his remaining on the property was reasonable given the circumstances. There was a SCOTUS case a few years ago about the wife giving permission to search and the man denying it. Both had equal rights to give permission. Court ruled his denial overruled her permission. I am applying similar logic though in this case, she did not have equal authority since she was only a guest in the house.

Some of it might be on the mother if she deliberately provoked the confrontation to try to get him killed and end his visitation. The step-mother's intervention in the custody case is going to be a very interesting separate case to watch. She may have a claim for visitation rights but I am not sure if it will get her custody over the mother.

Soccerdad1995 wrote: ↑Fri Nov 26, 2021 9:13 am I'm not sure if others watched the same video as others here, but I saw the deceased guy repeatedly refuse orders to leave (trespass), advance repeatedly on an armed man after the shooter tried to move away, and grab the shooters gun (assault). If he had managed to get the gun, the shooter might well be the person who is dead now. I believe I also heard the deceased say "I'll take that from you" or words to that effect.

The actions immediately before the shooting are very similar to the first guy that was shot by Rittenhouse, IMHO. Especially the grabbing of his gun.

The difference between this case and Rittenhouse is that this confrontation started before the gun was on the scene. The man then entered the house and returned with a gun, which could be seen as provoking and escalating the confrontation. But you could be right that these would make a difference.

wil wrote: ↑Fri Nov 26, 2021 8:47 am

srothstein wrote: ↑Thu Nov 25, 2021 11:59 pm I don't see this as coming out well for the shooter no matter what. There was no property being taken or threatened (according to the news article) and no person being threatened until he brought the gun out. That makes criminal trespass the only crime the deceased committed. Unfortunately, Texas law does not recognize stopping criminal trespass as justifying deadly force.

It will be interesting to see how the AG handles it. Who provoked the initial confrontation and who escalated it will be critical points, as in most self-defense cases.

Tx law specifically mentions trespass as grounds for lethal force.

Penal code 9.41 section a.

fool in the aqua shirt was told to leave from the beginning, didn't go.

I suggest you read that again. 9.41 is just the justification for force and not deadly force. 9.42 is the section justifying deadly force and it does not list trespass.

I don't see this as coming out well for the shooter no matter what. There was no property being taken or threatened (according to the news article) and no person being threatened until he brought the gun out. That makes criminal trespass the only crime the deceased committed. Unfortunately, Texas law does not recognize stopping criminal trespass as justifying deadly force.

It will be interesting to see how the AG handles it. Who provoked the initial confrontation and who escalated it will be critical points, as in most self-defense cases.