IN DEFENSE OF THY NEIGHBOR

Houston Criminal Defense Attorney John T. Floyd Discusses Texas Self

Defense Law in Light of the John Horn Shooting

On Wednesday, November 14, at about 2:00 p.m. a Pasadena, Texas man

named Joe Horn was working at his computer inside his own residence in
the 4900 block of Timberline when he heard the sound of breaking glass. He
looked out the window of his home and saw two Hispanic men, Miguel
Antonio DeJesus and Diego Ortiz, breaking into his neighbor’s house – a
neighbor that Horn did not know very well. The 61-year-old Horn retrieved
his 12-gauge shotgun from his pickup truck where he kept it for personal
protection. Horn then called a 911 operator to report the burglary in
progress. He explicitly told the operator that he was armed with a shotgun
and that he was going out to shoot the two men to prevent the burglary of his
neighbor’s home. The 911 operator repeatedly instructed Horn to remain
inside his house until the police arrived. The following are excerpts from
that 911 call:

"I'm not going to let them go. I'm not going to let them get away with this,"
Horn told the operator. “I'm gonna shoot. I'm gonna shoot."

"Stay inside the house and don't go out there," the operator calmly instructed
Horn. "I know what you're feeling, but it's not worth shooting someone over
this."

"I have a right to protect myself,” Horn replied. “And a shotgun is a legal
weapon. It's not an illegal weapon."

"Mr. Horn, I want you to listen to me carefully, OK?,” the 911 operator said.
“I've got officers coming out there. I don't want you to go outside that house
and I don't want you to have that gun in your hand when the officers are
poking around out there."

"I ain't going to let them get away with this,” Horn adamantly replied. “They
stole something. They got a bag. I'm doing this."

"Don't go out the house," the operator warned. "Don't be shooting nobody."
"Property's not worth killing someone over. OK? Don't go out the house.
Don't be shooting nobody,"
“I can't take a chance in getting killed over this. OK?” Horn replied.
"Mr. Horn, do not go outside the house,” the operator demanded. “You're
going to get yourself shot if you go outside that house with a gun."

"You wanna make a bet," Horn responded. "I'm gonna kill them. They're
gonna get away."

"I don't want you going outside, Mr. Horn," the operator said, almost
futilely.

"Well, here it goes, buddy," Horn said. "You hear the shotgun clicking, and
I'm going."

The sound of the shotgun clicking was picked up on the 911 tape.

“Move, you’re dead,” Horn warning the two men could be heard on the tape.

Three shotgun blasts were then picked up by the 911 recorder.

"Get the law over here quick. I had no choice," Horn frantically pleaded with
the 911 operator. "They came in the front yard with me. I had no choice."

CLAIM OF SELF-DEFENSE

Horn quickly secured the legal representation from his longtime attorney-
friend, Charles Lambright. The attorney made it clear to the media that the
computer consultant acted in self-defense when he killed the two burglars.

"He (Horn) was just doing what everyone is supposed to do," Lambright said
during a news conference on November 15, 2007 in front of the Houston
police memorial near downtown. "He called the police. He was cooperating
with them as best he could, trying to give the police the direction of the
burglars. He knew there was danger going outside."

Lambright said his client was devastated by the incident and had left town
with his family.
"Hopefully he will see a doctor and maybe get a sedative," he said. "He is
not well mentally. This has devastated him. Not in his wildest dreams could
he fathom this event."

"Joe is the absolute opposite of what everyone thinks he is," Lambright

added. "He is not a cowboy. He is not physical. He's 61 years old and
overweight. He's not confrontational. He's just a good guy."

The attorney pointed out that when Horn stepped out on his porch, he was
startled to find the burglars only 15 feet from his front door.

"He was petrified at that point," Lambright said. "You hear him say, 'I'll
shoot. Stop!' They jumped. Joe thought they were coming for him. It's a self-
defense issue."

The attorney also pointed out that he believed the 911 recording showed
Horn was afraid for his own safety before he left his residence to confront
the burglars.

"Just because he went outside doesn't mean he went outside with the idea of
shooting them," Lambright said. "All I can see is a concerned homeowner
who was scared for his own safety and, if he was some kind of nutcase, I
don't think he would have called 911. His intention was to get police out
there."

The attorney then read a written statement in which Horn said the killings
would "weigh heavily on me for the rest of my life. My thoughts go out to
the loved ones of the deceased."

Under well-established Texas jurisprudence, and in light of the audio tapes,

Joe Horn will need aggressive and skilled defense lawyers to effectively
assert a legitimate claim of self-defense. Article 9.31 of the Texas Penal
Code defines self-defense as follows:

“(a) Except as provided in Subsection (b), a person is justified in using force

against another when and to the degree the actor reasonably believes the
force is immediately necessary to protect the actor against the other's use or
attempted use of unlawful force. The actor's belief that the force was
immediately necessary as described by this subsection is presumed to be
reasonable if the actor:

“(1) knew or had reason to believe that the person against whom the force
was used:

“(A) unlawfully and with force entered, or was attempting to enter

unlawfully and with force, the actor's occupied habitation, vehicle, or place
of business or employment;
”(B) unlawfully and with force removed, or was attempting to remove
unlawfully and with force, the actor from the actor's habitation, vehicle, or
place of business or employment; or
“(C) was committing or attempting to commit aggravated kidnapping,
murder, sexual assault, aggravated sexual assault, robbery, or aggravated
robbery;

“(2) did not provoke the person against whom the force was used; and

“(3) was not otherwise engaged in criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance regulating traffic at the
time the force was used.

”(b) The use of force against another is not justified:

“(1) in response to verbal provocation alone;

”(2) to resist an arrest or search that the actor knows is being made by a
peace officer, or by a person acting in a peace officer's presence and at his
direction, even though the arrest or search is unlawful, unless the resistance
is justified under Subsection (c);
”(3) if the actor consented to the exact force used or attempted by the other;
”(4) if the actor provoked the other's use or attempted use of unlawful force,
unless:

“(A) the actor abandons the encounter, or clearly communicates to the other
his intent to do so reasonably believing he cannot safely abandon the
encounter; and
”(B) the other nevertheless continues or attempts to use unlawful force
against the actor; or

“(5) if the actor sought an explanation from or discussion with the other
person concerning the actor's differences with the other person while the
actor was:

“(A) carrying a weapon in violation of Section 46.02; or

”(B) possessing or transporting a weapon in violation of Section 46.05.

”(c) The use of force to resist an arrest or search is justified:

”(1) if, before the actor offers any resistance, the peace officer (or person
acting at his direction) uses or attempts to use greater force than necessary to
make the arrest or search; and
”(2) when and to the degree the actor reasonably believes the force is
immediately necessary to protect himself against the peace officer's (or other
person's) use or attempted use of greater force than necessary.

”(d) The use of deadly force is not justified under this subchapter except as
provided in Sections 9.32, 9.33, and 9.34.

”(e) A person who has a right to be present at the location where the force is
used, who has not provoked the person against whom the force is used, and
who is not engaged in criminal activity at the time the force is used is not
required to retreat before using force as described by this section.

”(f) For purposes of Subsection (a), in determining whether an actor

described by Subsection (e) reasonably believed that the use of force was
necessary, a finder of fact may not consider whether the actor failed to
retreat.”

The following general principles of law relative to self-defense have been

established by the Texas courts of appeal. They will be considered in
weighing Joe Horn’s claim that he acted in self-defense when he shot
DeJesus and Ortiz.

Self-defense is a defense for unjustifiable conduct. Killing two people is

unjustified conduct. To justify his use of deadly force against the two
burglary suspects, Horn will have to show under § 9.31 that a reasonable
person in his situation would not have retreated, and “he reasonably
believed” that the deadly force was immediately necessary to protect himself
from the burglars’ attempted use of unlawful deadly force. See also:
Tex.Pen.Code Ann. § 9.32(a) (Vernon Supp. 2005).
Put simply, Horn would have to show that the suspected burglars
“attempted” to use “deadly force” to harm him. The mere presence of the
burglars in his yard (if that indeed was the case), or any verbal threats they
may have made toward him when he confronted them were not enough to
constitute “attempted” use of deadly force. See: Tex. Penal Code Ann. §
9.31(b)(1). See also: Hamel v. State, 916 S.W.2d 491, 494 (Tex.Crim.App.
1996); Lane v. State, 957 S.W.2d 584, 586 (Tex.App.-Fort Worth 1997)
[There must be evidence that aggressor took some physical action against
subject that warrants belief deadly force is immediately necessary to protect
subject]. From the facts available this appears to be his best defense.

The case of John Davis Iverson, Sr. is illustrative in the Joe Horn case. See:
Iverson v. State, 2004 Tex.App. LEXIS 7007 (Tex.App.-Texarkana pet.
ref’d 2004). Iverson Sr. shot his son John Jr. with a nine millimeter handgun
and claimed the shooting was self-defense. The appeals court outlined the
circumstances leading up to that shooting incident:

“While John Jr. and his friends were asleep at the Iverson house, John Sr.
awoke to discover that the cover had fallen off the thermostat. Angry at the
destruction and suspecting that his son had something to do with it, John Sr.
went to one of the sleeping boys in the living room and started hitting him
on the head and cursing about the thermostat. After hitting the boy a few
times, John Sr. discovered that this boy was not his son; rather, it was Scott
Estes, a friend of John Jr. John Sr. apologized to Estes and moved over to
the other couch, where he began hitting the boy and cursing more about the
thermostat. This young man was, in fact, John Jr.

”According to Estes' testimony, after John Sr. hit John Jr. two or three times,
John Jr. got up off the couch and began to fight back. Several blows were
exchanged between father and son. Estes, in an attempt to get out of the way,
went outside the front door into the front yard. One to two minutes later,
John Jr. also came outside and urged his father to come outside and ‘fight
like a man.’ John Jr. then paced around the yard and walked a short distance
away from the house. Photographs of the scene show approximately twelve
to fifteen feet between the front door and where John Jr. was when he was
shot.

”Approximately two minutes after John Jr. came outside, John Sr. stepped
outside the front door and fired a nine millimeter handgun at John Jr., who,
according to Estes, said ‘Dad, don't shoot.’ John Jr. fell to the ground, and
John Sr. went back inside the house, called 9-1-1, then began to tend to his
injured eye. Estes' testimony and all other evidence in the record indicate
that John Jr. was unarmed at the time of the shooting.” Id., LEXIS, at 2-3.

Iverson admitted that he stepped outside the front door and shot his son but
“claims to have done so to disable the attack the boys were planning on
him.” Id., LEXIS at 3. The court of appeals rejected that claim, finding that
the evidence was sufficient to show that Iverson had committed an
aggravated assault on his son and that his unlawful conduct was not justified
by the rule of self-defense. The appeals court supported its finding with the
following legal and factual conclusions:

”Deadly force is a force intended to cause or is capable of causing, as used

or intended to be used, serious bodily injury or death. TEX. PEN. CODE
ANN. § 9.01 (Vernon 2003). No one disputes the fact that shooting John Jr.
with the handgun was deadly force. So, John Sr. would have had the right to
use deadly force in self-defense if a reasonable person would not have
retreated and would have reasonably believed the use of deadly force was
immediately necessary to defend against John Jr.'s use or attempted use of
deadly force. See TEX. PEN. CODE ANN. § 9.31 (Vernon 1994 & Supp.
1999); Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985); Juarez
v. State, 886 S.W.2d 511, 514 (Tex. App.--Houston [1st Dist.] 1994, pet.
ref'd).

”One does have the right to defend against a reasonable appearance and
apprehension of apparent danger to the same extent as against actual danger.
Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). In order to
justify conduct, a defendant must act on a reasonable belief that the use of
force was immediately necessary to protect himself or herself, or another.
Frank, 688 S.W.2d at 868. ‘Reasonable belief’ means a belief that would be
held by an ordinary and prudent person in the same circumstances as the
actor. TEX. PEN. CODE ANN. § 1.07(a)(42); Fielder v. State, 756 S.W.2d
309 (Tex. Crim. App. 1988). In determining whether a defendant had a
reasonable belief that action was immediately necessary for his or her own
protection, the facts and the circumstances must be judged from the
viewpoint of the defendant alone. Juarez, 886 S.W.2d at 514. The question
of whether the conduct was justifiable is not to be viewed in the light of later
events, but by what the defendant reasonably believed at the time. See id.
”No evidence was adduced at trial that, at the time John Sr. shot John Jr.,
John Jr. posed a threat of deadly force to John Sr.

”John Sr. described the boys' behavior as very destructive and withdrawn,
even aggressive. He described that, after he confronted the boys regarding
their behavior, he noticed a pool cue handle behind the door of the den.
While he said he interpreted that as a threat to him, he also stated that he
ignored it. Later, at some time before the shooting, John Sr. simply moved
the pool cue. John Sr. also testified that John Jr. had a machete that he
wanted to sharpen. John Sr. made suggestions as to how John Jr. could
sharpen the machete, which would indicate that John Sr. did not have a great
deal of fear regarding it. He stated that John Jr. ‘bowed up [to him] twice’
and that, although neither boy had lifted a weapon against him, they were
‘planning on it.’ He also complains about the boys' general destruction of his
home and disregard for his personal property.

”While testimony from John Sr. and his ex-stepdaughter does indicate that
the boys were somewhat destructive to the home and were not well behaved,
it does not show that an ordinary prudent person would have believed that, at
that moment, when his unarmed son was in the front yard, immediate action
was necessary to protect himself. In his statement to police, John Sr.
summed up the incident, admitting that ‘things had gotten out of hand, on
my part.’ John Sr. fails to satisfy the first of three prerequisites that would
justify his use of deadly force against his son. Likewise, he cannot satisfy
the other two requirements.

“Another prerequisite to justified use of deadly force is that a reasonable

person in the actor's situation would not have retreated. See Frank, 688
S.W.2d at 868. In other words, use of deadly force is justified only when
retreat is unreasonable. See id. Some evidence of inability to retreat is all
that is necessary to satisfy this condition for the use of deadly force. As to
the requirement of retreat before using deadly force, an accused is held to a
standard of reasonable conduct based on his or her reasonable fear of death
or serious bodily injury, viewed from the accused's standpoint at the time.
Juarez, 886 S.W.2d at 514. The test is whether a reasonable person in the
actor's situation would have retreated. In determining whether a reasonable
person in the defendant's situation would have retreated, the word ‘situation’
means a combination of circumstances at a given moment.

”Even assuming, arguendo, that John Sr. was reasonable in thinking that
John Jr. was threatening him with deadly force, John Sr. is unable to bring
forth even some evidence that he could not have retreated. To the contrary,
he had the perfect retreat: lock the doors, telephone police, and remain in the
house until help arrived. Instead, he went outside the door of the house and
shot John Jr.

’There must be an immediate necessity for action in order for the use of
either nondeadly or deadly force to be justified. TEX. PEN. CODE ANN.
§§ 9.31-.34 (Vernon 2003). A person is not justified in defending against
future action; the danger must be imminent. See Smith v. State, 638 S.W.2d
208, 210 (Tex. App.--Fort Worth 1982, no pet.).

”In his statement to police shortly after the shooting, John Sr. admits that he
was concerned about putting an end to the ‘future threats’ and the boys'
intentions of murdering him and that he shot his son to "disable him" and
‘discourage . . . the other boys.’ Even if we were to assume that John Jr. was
the aggressor and was using deadly force to inflict John Sr.'s bloody nose
and eye injury, the immediacy of the need to protect against any deadly
force had expired when John Jr. went outside and John Sr. remained inside
the house. Even if John Sr. had been in fear of his life, the opportunity to
retreat and seek help presented itself at the point at which father and son
were separated.

”Rather than remaining behind locked doors and calling police, John Sr.
went to his room, grabbed his gun, and sought out John Jr. When he stepped
outside the safety of the house to fire the gun at his unarmed son, the
shooting took on a more retaliatory nature rather than a defensive one. The
jury relied on legally and factually sufficient evidence in rejecting John Sr.'s
self-defense argument.” Id., LEXIS, at 8-14.

The facts and legal principles pronounced in Iverson explain why Horn’s use
of deadly force will be difficult to justify.

First, while Horn had a right to defend against a reasonable appearance and
apprehension of apparent danger to the same extent as he would have against
any actual danger posed by the burglars, he had to possess a “reasonable
belief” that killing them was immediately necessary to defend against an
attempted of use of deadly force by them. This scenario is not readily
apparent from the audio tapes and will need to be established by the defense
counsel to make this a viable claim.
Second, a grand jury or a criminal trial jury must determine whether Horn
possessed a “reasonable belief” that killing the two burglary suspects was
“immediately necessary” for his own protection. This determination must be
based on what Horn reasonably believed at the time he was standing on his
front porch and from his vantage point of confronting the two burglary
suspects in his yard.

Considering these two basic self-defense rules of law expressed in Iverson,

there is little evidence, either from the 911 recording or from Horn’s own
version of the events as expressed by his attorney that the burglary suspects
attempted to use deadly force against the home owner. Neither the fact that
they were thieves who had just burglarized Horn’s neighbor’s home nor the
fact that they may have made verbal comments that could be construed as
threats by Horn justified the three shotgun blasts he fired that killed them.

Finally, even if one accepts that Horn reasonably believed the two men
“attempted to use deadly force” against him by coming into his yard, he may
have had some duty to retreat. More to the point, the prosecution would
argue he had a duty to remain inside his residence until the police arrived as
he was repeatedly instructed to do by the 911 operator who is a law
enforcement officer. As the appeals court explicitly pointed out in Iverson:

”Rather than remaining behind locked doors and calling police, John Sr.
went to his room, grabbed his gun, and sought out John Jr. When he stepped
outside the safety of the house to fire the gun at his unarmed son, the
shooting took on a more retaliatory nature rather than a defensive one. The
jury relied on legally and factually sufficient evidence in rejecting John Sr.'s
self-defense argument.” Id., LEXIS, at 14.

Similarly, Joe Horn went to his truck and retrieved his shotgun while the two
men were burglarizing his neighbor’s residence. He then called 911, keeping
watch on the residence waiting for the two men to leave. And as soon as he
saw them exit the residence with a bag in hand, he left his residence telling
the 911 operator that “I’m gonna shoot … I’m gonna kill them.”

It will take great skill and exacting attention to detail for his defense attorney
to demonstrate that this kind of unlawful conduct is justified under Texas’
self-defense statute.
THE USE OF FORCE IN DEFENSE OF PROPERTY

Article 9.41 of the Texas Penal Code authorizes a person to protect one’s
own property:

“(a) A person in lawful possession of land or tangible, movable property is

justified in using force against another when and to the degree the actor
reasonably believes the force is immediately necessary to prevent or
terminate the other's trespass on the land or unlawful interference with the
property.

”(b) A person unlawfully dispossessed of land or tangible, movable property

by another is justified in using force against the other when and to the degree
the actor reasonably believes the force is immediately necessary to reenter
the land or recover the property if the actor uses the force immediately or in
fresh pursuit after the dispossession and:

“(1) the actor reasonably believes the other had no claim of right when he
dispossessed the actor; or
”(2) the other accomplished the dispossession by using force, threat, or fraud
against the actor.”

The appeals court in Heng v. State, 2006 Tex. App. LEXIS 294 (Tex.App.-
Houston [1st Dist.] 2006, pet. ref’d) held that additional factors must be
present before deadly force is justified in protecting a person’s own
property:

“A person is justified in using deadly force against another to protect land or

tangible, movable property:

”(1) if he would be justified in using force against the other under Section
9.41; and
”(2) when and to the degree he reasonably believes deadly force is
immediately necessary:

“(A) to prevent the other’s imminent commission of arson, burglary,

robbery, aggravated robbery, theft during the nighttime, or criminal mischief
during the nighttime; or
”(B) to prevent the other who is fleeing immediately after committing
burglary, robbery, aggravated robbery, or theft during the nighttime from
escaping with the property; and

”(3) he reasonably believes that:

“(A) the land or property cannot be protected or recovered by any other

means; or
”(B) the use of force other than deadly force to protect or recover the land or
property would expose the actor or another to a substantial risk of death or
serious bodily injury.

“TEX. PEN. CODE ANN. § 9.42 (Vernon Supp. 2005). Thus, in order for
appellant to be justified in using deadly force to protect his property, he
must meet all the elements of sections 9.41 and 9.42. Tex. Penal Code.”
Id., LEXIS at 14-15. [Emphasis added]

The first element Horn would have to satisfy is whether he could be

considered the “owner” of his neighbor’s property under § 9.41. The courts
have not been crystal clear on this issue. See: Epps v. State, 24 S.W.3d 872
(Tex.App.-Corpus Christi 2000). Effrain Dwayne Epps was convicted of
aggravated robbery and sentenced to life imprisonment in 1999. A year
before he and two accomplices burglarized the home of Michael Gerow.
Donald Sparks, a 68-year-old neighbor, witnessed “suspicious behavior by
[Epps] and his accomplices shortly before the burglary” and armed himself
with a “Sig Sauer caliber semiautomatic pistol.” Id., at 875. Sparks walked
over to his neighbor’s house and determined that Epps and his accomplices
were indeed burglarizing the house. Id. A confrontation ensued and Sparks
was shot multiple times but survived. Epps stole Sparks’ gun before leaving
the scene. Id.

Epps was indicted for using deadly force while “committing theft of
property owned by Donald Sparks …” Id., at 876. On appeal Epps argued
that Sparks was a neighbor, not the owner of the house he burglarized, and,
therefore, did not own anything in Gerow’s house. Id. The appeals court
discussed this argument, saying:

“The penal code definition of ‘owner’ includes any ‘person who has title to
the property, possession of the property, whether lawful or not, or a greater
right to possession of the property than the actor.’ Tex.Pen.Code Ann. §
1.07(a)(35)(A) (Vernon 1994). The State argues that Sparks had a greater
right to Gerow's property than appellant, and thereby fits the penal code
definition of ‘owner’ of the property.

“When the Legislature wrote the portion of the definition the State relies
upon, it intended to expand the class of persons to be protected from theft
and to allow the State to prove ownership without having to prove actual
care, custody, control or management of the property. Compton v. State, 607
S.W.2d 246, 250-51 (Tex.Crim.App.1980). However, to our knowledge,
this expansion of the definition of ‘owner’ has never been construed so
broadly as to allow a stranger to be the ‘owner’ of property belonging to
a third party. Cf. Johnson v. State, 606 S.W.2d 894, 896
(Tex.Crim.App.1980) (store security guard has a greater right to possess
store property than an alleged thief); Alexander v. State, 753 S.W.2d 390,
391-93 (Tex.Crim.App.1988) (two friends who live in separate halves of a
house split into a duplex and who visit each other regularly have a greater
right to possess each other's property than an attempted burglar).” Id.

Donald Sparks did not know Michael Gerow. While the State argued that
Sparks had a greater right of ownership to Gerow’s property than the
burglars, the district attorney charged Epps with using deadly force while
committing a theft of Sparks’ gun, not with stealing Gerow’s property. The
State clearly did not believe it could make its theory that Sparks’ was the
“owner” of Gerow’s property pass statutory mustard.

Similarly, as Sparks did not know Gerow, Horn did not know his neighbor
very well either. There is no indication from the public record that the
neighbor had asked Horn to protect his property when he was away from his
home.

The “property ownership” issue, however, is actually irrelevant because

Horn cannot satisfy the element stated in § 9.42(3)(A) that he believed the
neighbor’s property could not “be protected or recovered by any other
means.” The 911 operator told Horn several times that the police were on
their way to the scene. This information was most likely sufficient to inform
Horn that the police would recover the neighbor’s property.

What about Horn’s independent legal right to protect his neighbor’s

property?
Article 9.43 of the Texas Penal Code does, in fact, authorize the protection
of a neighbor’s property. This article provides:

“A person is justified in using force or deadly force against another to

protect land or tangible, movable property of a third person if, under the
circumstances as he reasonably believes them to be, the actor would be
justified under Section 9.41 or 9.42 in using force or deadly force to protect
his own land or property and:

“(1) the actor reasonably believes the unlawful interference constitutes

attempted or consummated theft of or criminal mischief to the tangible,
movable property; or
”(2) the actor reasonably believes that:

”(A) the third person has requested his protection of the land or property;
”(B) he has a legal duty to protect the third person's land or property; or
”(C) the third person whose land or property he uses force or deadly force to
protect is the actor's spouse, parent, or child, resides with the actor, or is
under the actor's care.”

This article does not help Horn’s cause either. First, he was not justified in
use deadly force against the two burglary suspects under § 9.42(3)(A), and,
second, there is no indication from the public record that the neighbor
requested that Horn protect his/her “land or property” as required by §
9.43(2)(A).” See also: Valdez v. State, 2006 Tex.App. LEXIS 2025
(Tex.App.-El Paso 2006)[deadly force by loss prevention officer in
department store justified when theft suspect took immediate flight and
violently resisted loss prevention officer’s detention]; Hudson v. State, 145
S.W.3d 323 (Tex.App.-Fort Worth 2004)[there must be evidence of a belief
that deadly force was needed to protect property].

Assuming arguendo that Horn’s possessed an independent legal right to

protect his neighbor’s property, there is no evidence that either DeJesus or
Ortiz took immediate flight or violently resisted Horn’s “don’t move”
warning. The only evidence in the public record is that Horn’s believed the
mere presence of the two burglary suspects in his yard constituted an attempt
to use “deadly force” against him. Standing alone, that dog won’t hunt in the
self-defense woods.

CITIZEN’S ARREST
Could Joe Horn claim he killed the two burglary suspects because they
resisted a citizen’s arrest?

Art. 14:01(a) of Tex. Code of Crim. Proc. Ann. authorizes a citizen to arrest
an offender when a felony or a breach of the peace is committed in his
presence or view. The statute is limited to the time the offense is committed
or while there is continuing danger of its renewal. See: Turner v. State, 901
S.W.2d 767, 771 (Tex.App.-Houston [14th] 1995, pet. ref’d).

There is no statutory definition for “breach of the peace.” See: Cunningham

v. State, 2004 Tex.App. LEXIS 11019 9 (Tex.App.-San Antonio 2004)

The Court of Criminal Appeals, however, has outlined this fundamental

principle:

“Actual or threatened violence is an essential element of a breach of the

peace. Either one is sufficient to constitute the offense. Accordingly, where
means which cause disquiet and disorder, and which threaten danger and
disaster to the community, are used, it amounts to a breach of the peace,
although no actual personal violence is employed.”

See: Woods v. State, 152 Tex.Crim. 338, 342, 213 S.W.2d 685, 687 (1948).

A determination of whether there has been a “breach of the peace” sufficient

to warrant a private citizen arrest under § 14.01(a) is decided on a case-by-
case basis, looking to the facts and circumstances surrounding the act. State
v. Turner, supra, 901 S.W.2d at 770.

The facts and circumstances leading up to Horn’s confrontation with the

burglary suspects authorized him to make a citizen’s arrest because both a
“felony” and a “breach of the peace” had been committed in his presence.

But § 14.01(a) permits only an “arrest” by a private citizen. It does not

authorize the use of deadly force to accomplish such an arrest.

Article 9.51 of the Texas Penal Code authorizes use of deadly force by a
private person during an “arrest”:
“(a) A peace officer, or a person acting in a peace officer's presence and
at his direction, is justified in using force against another when and to the
degree the actor reasonably believes the force is immediately necessary to
make or assist in making an arrest or search, or to prevent or assist in
preventing escape after arrest, if:

“(1) the actor reasonably believes the arrest or search is lawful or, if the
arrest or search is made under a warrant, he reasonably believes the warrant
is valid; and
”(2) before using force, the actor manifests his purpose to arrest or search
and identifies himself as a peace officer or as one acting at a peace officer's
direction, unless he reasonably believes his purpose and identity are already
known by or cannot reasonably be made known to the person to be arrested.

”(b) A person other than a peace officer (or one acting at his direction) is
justified in using force against another when and to the degree the actor
reasonably believes the force is immediately necessary to make or assist
in making a lawful arrest, or to prevent or assist in preventing escape after
lawful arrest if, before using force, the actor manifests his purpose to and
the reason for the arrest or reasonably believes his purpose and the
reason are already known by or cannot reasonably be made known to
the person to be arrested.

”(c) A peace officer is justified in using deadly force against another when
and to the degree the peace officer reasonably believes the deadly force is
immediately necessary to make an arrest, or to prevent escape after arrest, if
the use of force would have been justified under Subsection (a) and:

”(1) the actor reasonably believes the conduct for which arrest is authorized
included the use or attempted use of deadly force; or
“(2) the actor reasonably believes there is a substantial risk that the person to
be arrested will cause death or serious bodily injury to the actor or another if
the arrest is delayed.

”(d) A person other than a peace officer acting in a peace officer's presence
and at his direction is justified in using deadly force against another when
and to the degree the person reasonably believes the deadly force is
immediately necessary to make a lawful arrest, or to prevent escape after a
lawful arrest, if the use of force would have been justified under Subsection
(b) and:

“(1) the actor reasonably believes the felony or offense against the public
peace for which arrest is authorized included the use or attempted use of
deadly force; or
”(2) the actor reasonably believes there is a substantial risk that the person to
be arrested will cause death or serious bodily injury to another if the arrest is
delayed.

”(e) There is no duty to retreat before using deadly force justified by

Subsection (c) or (d).

”(f) Nothing in this section relating to the actor's manifestation of purpose or

identity shall be construed as conflicting with any other law relating to the
issuance, service, and execution of an arrest or search warrant either under
the laws of this state or the United States.

”(g) Deadly force may only be used under the circumstances enumerated in
Subsections (c) and (d).” [Emphasis added]

Horn cannot satisfy these elements for the use of deadly force in making an
arrest by a private person. First, he was not acting either in a peace officer’s
presence or at a peace officer’s direction. To the contrary, Horn was acting
against the repeated explicit instructions from the 911 operator not to
attempt any action against the burglary suspects. See: § 9.51(a). Second, he
was not making a “lawful” arrest because he had been warned by the 911
operator to remain in his residence. See: § 9.51(b). Third, he did not
announce his intention that he was making a citizen’s arrest. Id. Finally, he
had a “duty to retreat before using deadly force.” See: § 9.51(e). See also:
Shearer v. State, 690 S.W.2d 2 (Tex.App.-Beaumont 1984)[police officer
acting as private citizen investigating his personal business not authorized to
use force against gas station owner resisting arrest regardless of whether the
arrest was lawful].

CONCLUSION

From the public record available, it appears that Joe Horn did not act in self-
defense when he killed Miguel Antonio DeJesus and Diego Ortiz because
there is no evidence the two men attempted to use deadly force against him.
However, evidence indicating that the burglars approached him in a
physically threatening manner, given his age, physical condition and
because they had just burglarized his neighbor’s home, may allow for a
arguable defense.

As for other possible defenses: Joe Horn did not have a greater right of
ownership to his neighbor’s stolen property than DeJesus and Ortiz.

And Joe Horn did not have an explicit right to protect his neighbor’s
property from DeJesus and Ortiz unless he had been specifically requested to
do so by the neighbor.

Assuming a right to protect his neighbor’s property existed, Joe Horn did not
have a right to use “deadly force” against DeJesus and Ortiz to protect that
property because he had been instructed by the 911 operator that the police
were enroute to the scene to handle the matter.

While Joe Horn had a right to make a “citizen’s arrest” of DeJesus and Ortiz,
he did not have a right to use “deadly force” to accomplish that arrest
because (1) he did not act in the presence or at the direction of a peace
officer; (2) he was not making a lawful arrest because he had been instructed
by the 911 operator not to do so; (3) he did not announce his intention that
he was making such an arrest; and (4) he had a duty (as well as an
opportunity) to retreat before using deadly force against the two suspects.

A Harris County grand jury may refuse to indict Joe Horn – and even if
indicted, a criminal trial jury may refuse to convict him – for killing DeJesus
and Ortiz because of community attitudes against crime and criminals.
From the facts available it will take skilled criminal defense work to elicit
facts that establish that Mr. Horn believed deadly force was immediately
necessary to protect himself against the burglars use or attempted use of
unlawful force. But given the solid anti-crime and pro-gun environment in
Harris County, such a defense, even if built on slight evidence, could carry
the day.