I reckon there are enough Texans on this site that this should warrant some interest. Basically this makes it where a person can defend themselves without trying to retreat, if the attacker is approaching a home, car or business. Previously the person had to retreat unless they were in their house. Anyway, I think it’s probably a good law for Texas, since most of the populace probably thought they could do that anyway. I think several Southern states have similar laws (Florida at least comes to mind).
In regards to the use of deadly force in self-defense, the Texas Penal Code currently states:
From what I can glean from the OP’s article, prosecutors believe that § 9.32, Subsection (a) (2) will essentially become null and void, whereas lawmakers believe that § 9.32, Subsection (a) (2) will remain in effect, unless, in addition to the exception provided by § 9.32, Subsection (b), the person using deadly force is in his car or business (Subsection (b) already covering the home).
But it seems to me the lawmakers are understating the issue. According to the article, there is now a presumption of self-defense if the person who used deadly force,
(a) was not breaking the law at the time; and
(b) did not provoke the attack; and
© had reason to believe that the other person wanted to rape, kidnap, kill, or rob him.
But why this new addition? Defendants are already presumed innocent until proven guilty. Note that © is already a requirement for using deadly force in self-defense, as explained in § 9.32, Subsection (a) (3) (B). Presumably then (a) and (b) are intended to place a greater burden on the prosecution if the defendant was not breaking the law at the time and did not provoke the attack. Again, I ask why this is necessary. Texas prosecutors already have a tough enough job proving guilt beyond all reasonable doubt without having to contend with this weird “presumption of self-defense” thing added into the mix.
Texas district attorney’s offices face a constant uphill battle retaining assistant district attorneys. I don’t remember the exact figures but I think the average tenure of an assistant district attorney in Harris County, Texas (which encompasses Houston, dozens of mid-sized and small towns, and a lot of rural area) is something like 2-3 years. Well, when you become an assistant DA in Harris County you’ve got zero chance of prosecuting a criminal homicide case until you have at least three or four years tenure. You’ve got to pay your dues tackling the never-ending slew of drug cases (the prison population in the counties became so overpopulated that the State of Texas had to create its own prison program just to house inmates convicted of drug-related offenses). Many young prosecutors become disillusioned prosecuting case after case of drugs, drugs, drugs. Also keep in mind that the starting salary of a Harris County Assistant DA is $51,456 USD, which you when consider the $120,000 student loan, wife, kids, house, cars, etc., is not all that much. Those who do stick it out and work their way through years of tiring drug cases, then on to armed robbery, sexual assault and the like, and finally murder cases, well, they’re the true believers. But even these people, and I know a few of them, become very frustrated with murder trials. Despite the US Supreme Court’s famous “it is better that ten guilty men go free than one innocent man be found guilty,” it is tough on underpaid prosecutors to watch people they know to be guilty walk off Scot free.
I really don’t like this new “presumption of self-defense” burden. I don’t like it one bit.
It seems to me that most cases will still hinge on the interpretation of “reason to believe” he will be killed, robbed, etc, which is one of the conditions of the presumption. The courts will probably have a high standard for that, so I don’t see it changing outcomes of prosecutions very much. There will be some minority of cases where a person could retreat but instead shoots that get a different result, but I’m guessing those will be very few and far between.
The standard is the usual “reasonable man” test. Prosecutors wouldn’t be so jumpy if this weren’t going to make their jobs difficult in some way.
I have no problem with eliminating the ridiculous First Retreat aspect from the law. My problem is this strange “presumption of self-defense” business. I suspect that is what has the prosecutors up in arms (no pun intended) about this bill. How will the statute be modified exactly? How will the courts interpret the new language? Will the prosecutor have to prove conditions (a), (b), or © were not present? If so, to what degree? Beyond a reasonable doubt because it’s a criminal trial and this speaks to the question of guilt or innocence in general? Or just preponderance of the evidence? What other kinds of hoops will the prosecutor have to jump through? Will a difficult, multi-pronged “test” evolve through case law? How will this affect juries? Will they understand it? Will it result in a higher acquittal rate?
Lots of questions for Texas lawmakers. Lots of questions they don’t seem to want to answer. The Senate didn’t even debate the issue for Christ’s sake, just rubber stamped it. They’re probably all afraid to look anti-gun in a gun-loving state. Bloody ridiculous.
I would say its almost certainly an A, B, and C test as far as the presumption goes. Therefore, the presumption doesn’t kick in until the “reason to believe” element is passed. As you said, the reasonable objective person standard – i.e. the jury, basically --applies here. That being the case, I don’t see that it’s going to change the results all that much, since juries are still effectively going to be using the same process of weighing testimony and deciding whether they are legit self defense cases. Most of the time, I think it will be a fairly clear cut case of them either believing or not believing the parties, which is essentially what they do now. Yeah, the prosecutor has to jump through another hoop or two, but I don’t see that much of a change in result.
As for the politics of it, yeah, that probably sums it up, and its mostly symbolic (ineffectual) anyway. But hey, they could be doing worse things, after all they are a legislature.
The prosecutor would only have to disprove one of those. The defendant would have to demonstrate all three were present.
Yes, that’s what I was saying.
I can foresee situations in which two people (or two street gangs) shoot at each other, then have each side claim in court that they felt threatened by the other. (Hell, for that matter, each of them could be telling the truth.)
"He needed killin’ "
“Yep…he shore 'nuff did.”
Something heard on occasion in Texas.
Then they wouldn’t meet condition (b), and probably wouldn’t meet condition (a) either.