Texas: Can I Use Force Against Someone Burglarizing My Car?

 

 

Member Ambassador Sherry Hale:

Welcome Members and Fellow Gun Owners. In the last Member’s Voice video, our member Tyler witnessed a criminal breaking into his car.

Tyler drew his gun, and the bad guys ran away.

The legal questions started pouring in, and Members, you wanted to know your legal rights in your state. So here’s your Texas Law Shield Independent Program Attorney Emily Taylor to give you insight on what the law says.

Texas Law Shield Independent Program Attorney Emily Taylor, Walker & Taylor Law Firm, Houston:

Today, we’re going to talk about what you can do if someone is breaking into your vehicle while you’re at your house. Well, first of all, what is this crime even called? It’s called burglary of a motor vehicle.

Now, that’s what makes this discussion interesting, because as you may already know, you can have the right to respond with deadly force when someone is committing a burglary against your property. The problem here is that the statute only reads burglary, and there are multiple different kinds of burglary in the State of Texas.

Things like burglary of the habitation, burglary of a building, burglary of a coin-operated machine, and, of course, our topic today, burglary of a motor vehicle. Because the statute doesn’t specify which kind of burglary you can respond to with deadly force, we’re kind of at a loss legally.

The problem here is that there’s no controlling case law that says that you are allowed to use deadly force against a burglar who’s breaking into your car. I know you’re probably thinking I’ve seen it on the news. I’ve heard anecdotes about people who shoot at someone who’s burglarizing their car and that shooter doesn’t get arrested. Nothing terrible happens to them; they’re allowed to go on about their lives.

I’ve heard those anecdotes, too; the problem is that because we don’t have case law that controls if you use deadly force against someone who’s burglarizing your vehicle, you could be put in the position of being the test case for whether or not that behavior is allowed under Texas law.

If someone’s breaking into your vehicle in the nighttime, the law becomes much more clear. Texas statutes say that you can, if you act reasonably, use deadly force against someone committing a theft during the nighttime.

The person who’s breaking into your vehicle is doing so presumably to commit a theft of what’s inside, so if you witness this activity in the night time, so long as you’re acting reasonably, as determined by potentially a judge or a jury, you can have the right in Texas to use deadly force against that person.

Day or night, you always have the right to use force against the person who’s committing the burglary of a motor vehicle. Use of force can look like a lot of different things, could look like anything from verbal commands to stop to actually physically going over and stopping the person with your hands, engaging them physically with your hands.

It could look like everything up into pointing a firearm at someone, so the question becomes, could you point your gun at someone and hold them at gunpoint until the police arrived because they’ve been burglarizing your motor vehicle?

Well, that would be a use of force, and a use of force can be justified in this instance. But keep in mind, your use of force has to be reasonable, it has to be immediately necessary, and it should be proportional to the amount of force that the person is perpetrating against you.

So while holding someone at gunpoint is potentially something that you’re allowed to do when they’re burglarizing your motor vehicle, keep in mind that the ultimate authority on whether or not that’s allowed is potentially a jury at trial, or a judge.

Educating you is the cornerstone of Texas Law Shield. Thank you for being a part of our family.

If you are a Member and and have more detailed questions about when you can and cannot shoot in defense of property, please call the non-emergency number at (281) 668-9957, and Independent Program Attorneys will be happy to explain your options.

 

58 comments on “Texas: Can I Use Force Against Someone Burglarizing My Car?

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  • the criminal justice system has been perverted to provide for and coddle the criminals. It also provides jobs to, judges, lawyers, police, parole officers. corrections officers etc. The law abiding citizen is left to fend for themselves at their own expense. So shooter be ware, these people do not like you, to them you are the real criminal because you choose to protect yourself, your family or your property.
    That being said, It has to be a matter of life and death before I would take lethal
    action, because either way it goes the cost will be high and not just financially.

  • What about use of force at an apartment complex on someone burglarizing your vehicle?

    • U.S. & Texas LawShield Admin says:

      Hi Jeff. Thanks for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “Texas Penal Code Section 9.42 allows a person to use deadly force to prevent a burglary if the person reasonably believes that it is immediately necessary. The law makes no distinction about where the car is located as long as you have the right to park your car on that property. If the burglar has stopped and is attempting to escape, Texas law does not allow for the use of deadly force when a person is running away from a burglary without carrying any property. Texas law does allow for the use of deadly force to retrieve stolen property from a person who is fleeing from a burglary, but only if the person has a reasonable belief that the use of deadly force is immediately necessary and that they reasonably believe that the property could not be recovered through any other means or that the use of less than deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury.”

  • Timothy Stewart says:

    Recently I had someone pour a substance in the fuel tank of my truck sitting in my driveway at night. What is my legal course of action in this case? If I had caught them in the act would deadly force have been reasonable?

    • U.S. & Texas LawShield Admin says:

      Hi Timothy. Thanks for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “Texas Penal Code Section 9.41 allows a person to use force to defend their property against an act of vandalism, but you cannot use deadly force if it is vandalism (criminal mischief) in the daytime. Texas Penal Code Section 9.42 provides that a person may use deadly force against the crime of criminal mischief at night IF the person has a reasonable belief that the deadly force is immediately necessary and a reasonable belief that the property could not be protected by any other means. This leaves a lot of room for a prosecutor to argue and a jury to find that the actor’s belief WAS NOT reasonable. Texas Law Shield will stand behind our members to defend them when the member believes that they have justifiably used force or deadly force. Texas Law Shield has defended and will continue to defend members who have faced charges when the police and prosecutors believe that the member did not act reasonably.”

  • If you can use deadly force to stop burglary of your property and the motor vehicle is your property where is the problem? Also I was taught that drawing your gun was the equivalent of shooting your gun in regards to “deadly force”. Never understood this. Seems like the deadly force would be the bullet flying downrange not the gun.

    • U.S. & Texas LawShield Admin says:

      Thank you for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “Texas law allows you to use deadly force to stop a burglar if you have a reasonable belief that it is immediately necessary. As far as pulling a gun vs. shooting a gun, Texas Penal Code Section 9.04 clearly states that displaying a weapon in order to cause apprehension that you will use deadly force if necessary is an act of force not deadly force. However, many police officers and prosecutors have demonstrated a pronounced inability to understand this statute. The reason is that Texas Penal Code Section 22.02 states that “exhibiting” a deadly weapon during the course of an assault makes it an aggravated assault, thereby treating the exhibition as an act of unlawful deadly force. Therefore, prosecutors always view the display of a weapon as an act of aggravated assault and not an act of using force instead of deadly force in self-defense.”

  • Harry A. Cole says:

    Thank you!
    Please address exposing a firearm, or use of force (and use of deadly force), if someone is burglarizing your vehicle off your own property – such as in the parking lot of a shopping center or other business. Of, for that matter, burglarizing a business next to yours in a strip mall (this happened recently to a friend who was working late one night and witnessed a break-in and theft from a store next door – in a remote area where law enforcement coverage is sparse).
    These type events could lead to an obvious, but perhaps not the best, reaction.
    Thank you again.

    • U.S. & Texas LawShield Admin says:

      Hi Harry. Thanks for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “Texas law does allow you to use deadly force to stop a burglar if you have a reasonable belief that it is immediately necessary. This is true whether or not the car is on your own property or in a parking lot owned by someone else. When protecting another person’s property from a burglary, you are allowed to use deadly force if you have a reasonable belief that a burglary is happening and at least one of four facts are present: 1) you reasonably believe the unlawful act is a theft or criminal mischief; 2) the owner of the property requested that you protect their property; 3) you have a legal duty to protect their property; or 4) the property is owned by your spouse, parent, child, or resides with you or is under your care.
      As far as exposing a gun vs. shooting a gun, Texas Penal Code 9.04 clearly states that displaying a weapon in order to cause apprehension that you will use deadly force if necessary is an act of force not deadly force. However, many police officers and prosecutors have demonstrated a pronounced inability to understand this statute. The reason is that Texas Penal Code 22.02 states that “exhibiting” a deadly weapon during the course of an assault makes it an aggravated assault, thereby treating the exhibition as an act of unlawful deadly force. Therefore, prosecutors always view the display of a weapon as an act of aggravated assault and not an act of using force instead of deadly force in self-defense.”

  • In my opinion this is ridiculous! I am so very tired of “lawyers” juggling semantics just so they can WIN and gain wealth even if “the innocent” become the victims!

  • What about the case where a repo driiver was shot and killed with a long gun and then district attorney John Holmes ruled the shooting justified based upon some Tx 1853 horse theft law. This happened during the 1980-90s.

  • Johnny Duckworth says:

    I know that the idea is not to convict an innocent person, but it seems that criminals have more protection than normal citizens. We just have too many criminals in the US these days, and the judges and courts can’t seem to understand their role. We have a real problem when it comes to personal safety!

  • Randy Mosier says:

    There was a case in Hurst, Texas about twenty years ago in which a homeowner shot two teenagers who were breaking into his car. I don’t recall the details but I do know the homeowner did have to appear in court, though I don’t think he was ever charged or convicted of any crime. In might be worth your while to do some research on that case as it might establish some sort of precedent. It took place in Hurst around 1996 or 1997.

  • jason goldberg says:

    can you shoot someone in the back while fleeing from a felony act on or off your property?

    • U.S. & Texas LawShield Admin says:

      Hi Jason. Thanks for your question. Please see the below response from one of our Independent Program Attorneys here in Texas.

      “Generally, Texas law does not allow for the use of deadly force when a person is running away after they have committed a felony, but are no longer a threat to you. This is especially true with regard to property crimes. However, there are two situations where you may use deadly force against someone who is fleeing the scene of a crime. First, Texas Penal Code Section 9.51 creates the ability for a person to make a “citizen’s arrest” and to use deadly force if they reasonably believe that the crime is a felony or an offense against the public peace or the person has a reasonable belief that there is a substantial risk that the person to be arrested will cause death or serious bodily injury to another person if not arrested. However, the catch is that this can only be done in situations where the arrest is a “lawful arrest.” This obviously puts the person at risk of being accused of making an unlawful arrest and thereby losing all of his justification under Section 9.51.
      Second, Texas laws does allow for the use of deadly force to retrieve stolen property from a person who is fleeing from a burglary, but only if the person has a reasonable belief that the use of deadly force is immediately necessary and that they reasonably believe that the property could not be recovered through any other means or that the use of less than deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury. If you use force to apprehend a felon, but then he decides to jump up and run away and he is no longer a threat to your safety, you cannot use deadly force to prevent him from escaping.”

  • David Lunden says:

    What do you do when you stop a burglary, hold the suspect at gun point and he just walks away?

    • U.S. & Texas LawShield Admin says:

      Hi David. Thanks for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “You can use force to stop a burglar from escaping, but Texas law does not allow for the use of deadly force when a person is running away from a burglary if they are not carrying any property. Texas laws do allow for the use of deadly force to retrieve stolen property from a person who is fleeing from a burglary, but only if the person has a reasonable belief that the use of deadly force is immediately necessary and that they reasonably believe that the property could not be recovered through any other means or that the use of less than deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury. If you use force to apprehend a car burglar, but then he decides to jump up and run away and he is no longer a threat to your safety, you cannot use deadly force to prevent him from escaping.”

  • F. Schult says:

    So the short version is:
    “We don’t know yet – good luck with the outcome of your trial.”

    Though if the statute only reads ‘burglary’ without defining it further, all of them should be covered … which would make sense to anyone who’s not a lawyer.

    • U.S. & Texas LawShield Admin says:

      Hi Charles. Thanks for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “A person can use deadly force against a carjacker. Texas Penal Code 9.32 gives a person the legal presumption that they had a reasonable belief that deadly force was immediately necessary if it is used against someone who is unlawfully and forcefully attempting to enter an occupied motor vehicle or attempting to unlawfully and forcefully remove a person from a motor vehicle.”

  • Robert Gonzalez says:

    So the question is, with so much ambiguity, will Texas Law Shield come to our defense if any of these situations puts a member in the cross hairs of an aggressive DA. I.e. say someone is burglarizing my vehicle during the day and I use my gun to hold him at gunpoint until the police arrive. The DA decides this is not justified. Will TLS come to my aid?

    • U.S. & Texas LawShield Admin says:

      Hi Robert. Thanks for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “Texas LawShield has defended many members who have found themselves in these exact situations. Texas LawShield membership is designed to protect people who find themselves becoming victims of the criminal justice system that is supposed to work for them and not against them.”

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