John T. Floyd Law Firm
Houston Criminal Lawyer
"Serious Criminal Defense Throughout Texas"
Experienced Criminal Defense Lawyer
Trials, Sentencings and Appeals
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com
Top Lawyers for the People - 2008 HTexas
Comments on Criminal Issues
December 17, 2007
IN THE WAKE OF THE JOE HORN SHOOTINGS
Houston Criminal Attorney John Floyd Continues Discussion of Deadly Force in Self Defense in Light of More Recent Shootings
During the afternoon of November 14, 2007 a Pasadena, Texas resident named Joe Horn was working at his computer in his own home. He heard the sound of breaking glass. He looked out his window. He saw two men [later identified as Miguel Antonio DeJesus and Diego Ortiz] breaking into his neighbor’s home. Horn retrieved a shotgun, called 911, and informed the operator about the burglary in progress. The 911 operator instructed Horn to remain inside his residence – that the police were on their way. Horn did not heed those instructions. He went outside, confronted the two burglary suspects, and killed both of them as they attempted to flee.
The Joe Horn case has triggered a tremendous amount of local, and national, media attention because it involves the use of deadly force in defense of life and property. As these issues swirled in street protests in front of Horn’s residence, on Internet blogs, and in letters to editors of various newspaper, there have been several other high profile area cases involving home invasions or attempted burglaries.
One of these cases involved occurred on November 29 when a Montgomery Count resident named Gerald Lynn Southworth shot and killed Rodney Earl Shamlin in the front yard of his home. Law enforcement authorities told the media that they believe Southworth was justified in the shooting because Shamlin was trying to steal something.
Another case involved the home invasion by two men in a gated Fort Bend County on December 11, 2007. Local media reports say the two men bluffed their way into the home a 54-year-old retired school teacher named Martha Fields saying they had a package to deliver. Once inside the two men demanded money, tied up Fields, and stabbed her numerous times before fleeing without taking anything. Fields died two days later at a local Houston hospital.
Law enforcement investigators have been aggressively trying to determine how the two men gained access to the tightly secured Weston Lakes subdivision. Neighbors did not see a vehicle at the Fields’ residence or one fleeing the scene. There are some similarities in the Fields case and the Horn case. Both crimes occurred in broad daylight in normally peaceful, crime-free community. Just as neighbors did not see a strange vehicle around or fleeing Fields’ home, the police have not located any vehicle associated with the two burglary suspects killed by Joe Horn.
The day after Martha Fields died, Friday, December 14, a southwest Harris County resident named Damon Barone was awakened by noises at approximately 2:15 a.m. Media reports say Barone got up to investigate the unusual noise and discovered a man crawling through a shattered bedroom window. With his wife and infant daughter hiding in the bathroom, Barone did not hesitate: he shot and killed the intruder. The intruder turned out to a career criminal named Steven Dunbar who had multiple arrests and convictions spanning a 13-year period.
Common law has long recognized the right of a homeowner to defend his “castle” by not imposing a duty to retreat before using deadly force. See: Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law, 5.9(b) (1986); Rollin M. Perkins, Self-Defense Re-Examined, 1 UCLA L. Rev. 133, 150-53 (1953). As one court put it: “It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home.” Gainer v. State , 391 A.2d 856, 862 (Md. Ct. Spec. App. 1978) [quoting People v. Tomlins , 107 N.E. 496, 497-98 (N.Y. 1914)].
Historically common law has recognized that the protection of one’s home is as sacred as the right to protection one’s family, and that “deadly force” could be used when necessary to protect one’s home – a defense “considered equivalent to defense of life itself.” See: State v. Hare, 575 S.W.2d 828, 832 (Minn. 1998). See also: David Jacobs, Privileges For the Use of Deadly Force Against a Residence-Intruder: A Consequence of the Jewish Law and the United States Common Law, 63 Temp. L. Rev. 31, 46 (1990).
The Minnesota Supreme Court explained why there is no “duty to retreat” in one’s own home when confronting an intruder: “Mandating a duty to retreat for defense of dwelling claims will force people to leave their homes by the back door while their family members are exposed to danger and their houses are burgled. Further, forcing a resident to retreat from the home is at odds with the historical notion of the home as a place critical for the protection of the family. A duty to retreat is incompatible with the right to prevent the commission of a felony within one's home.” See: State of Minnesota v. Tony Lamar Carothers, Case No. C8-98-86 (June 17, 1999).
The Texas Legislature this year expanded the state’s self-defense statutes enhancing the “use of force or deadly force in defense of a person.” See: 2007 Tex. Sess. Law Serv. Ch. 1 (S.B. 378) (VERNON'S). This ACT [effective September 1, 2007] amended Section 2 of Article 9.31 of the Texas Penal Code and added Subsections (e) and (f) to read 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.
(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.”
Barone and Southworth seem to have indisputable self-defense claims. Dunbar was unlawfully, and with force, trying to enter Barone’s residence when the homeowner’s killed him – not only in defense of his property but his family as well. Likewise, Shamblin was apparently trying to steal Southworth’s property when the homeowner killed him. Two days earlier the home owner had reported thefts at his property site and had stayed overnight to guard the property. Article 9.41 of the Texas Penal Code allows the use of deadly force in defense of property to prevent a theft occurring during the nighttime. Both Dunbar and Shamblin were found lying dead in the yards of Barone and Southworth when the police arrived.
“I’m sorry as hell,” Southworth told the local media after the shooting. “I just wished there had been another way to resolve this.”
Martha Fields did not have a chance to defend either her life or property. Barone and Southworth did. Had they not made the decision to use deadly force, they could have faced the same terrible fate as Martha Fields.
Whatever the motives in any of these cases, it is clear the Texas Legislature felt compelled this year to enhance the right of homeowners to defend their lives and property because no homeowner deserves the fate of Martha Fields.
[ Back to top ]
