Houston Criminal Attorney John Floyd Discusses the Tragedy of the John Horn Case and the Implications of Grand Jury No Bill


It was a highly-charged emotional case from the beginning. It had all the social ingredients for stirring controversy: criminals, crime, guns, self-defense, race, and illegal immigrants. It began last November when a 64-year-old Pasadena retiree named Joe Horn saw his neighbor’s home being burglarized by two Hispanic men, Diego Ortiz and Hernando Riascos Torres, who were in the United States illegally(although Horn at the time didn’t know they were Hispanic because of their African-Columbian descent). Horn called 911 to report the crime. He told the 911 dispatcher that he was armed. The dispatcher instructed Horn to stay inside his own residence. Horn ignored those instructions, pointedly telling the dispatcher that he was going to kill the two men.


Whatever his motives, Horn left his residence armed with a shotgun. He confronted the two unarmed men as they walked between his residence and his neighbor’s residence. One of the men, according to news reports, angled in the direction of Horn, who was standing on his porch, before making a dash toward the street in front of Horn’s residence. The other Hispanic man turned away from Horn and fled across the neighbor’s front yard. Horn raised the shotgun and fired one shot that struck the man fleeing toward the street in the back, killing him instantly. Horn turned the shotgun toward the other man and fired two shots, one of which also struck the fleeing man in the back. He continued to run a short distance before collapsing dead.


The case triggered street protests in the Village Grove East subdivision where Horn lives. Those protests were led by community activists Quanell X. The community of Pasadena suddenly found itself the subject of national media attention. This web page posted four blogs (11-29-08, 12-09-07, 12-17-07, and 02-27-08) about the case and the subject of self-defense. Our website quickly discovered that the emotions in the case ran to the extreme – Joe Horn was either a “hero” for killing two “down n’ dirty” criminals or he was a cold blooded murderer who shot two men in the back as they fled.

The problem with extremes is that they never capture the essence of any controversy. They tend only to polarize people, too often along racial and cultural lines as in the Horn case. This was made evident on June 30, 2008 when a Harris County Grand Jury elected not to indict Horn for any criminal offense related to the shootings.  Both extremes were ready with the standard responses.

Shortly before the grand jury decision Horn’s attorney, Tom Lambright, was quoted by the media as saying: “Was it a mistake [for Horn to confront the men] from a legal standpoint? No. But a mistake in his life? Yes. Because it’s affected him terribly. And if he had it to do over again, he would stay inside. I don’t think anybody can really appreciate the magnitude that something like this has on a person’s personality.”


Texas law allows a homeowner to use deadly force under certain circumstances in defense of his property.


By any stretch of legal analysis, Joe Horn’s actions that November 14, 2007 day were not a clear case of “self-defense” of either himself or his property. It may be argued that he felt “threatened” when the first burglar angled toward him. But he turned away and fled toward the street. Perhaps he continued to fear for his life at the moment of the shootings.  Perhaps it was a mistake of perception.  Apparently, the burglar was no longer a real threat and Horn shot him in the back. But in the instant of the intensity of the situation, emotions take charge.  Apparently, the second burglar never posed any threat to Horn.  He immediately turned away from Horn and fled in the opposite direction across Horn’s neighbor’s yard. Horn also shot him in the back but the man continued to run, prompting Horn to fire a third shot. But, again, the law judges criminal conduct from the actor’s perceptions and beliefs and perhaps Horn, at the time, believed his actions were necessary to protect himself.


Many have posted “comments” on various blogs that the two men lost their right to live the moment they broke into Horn’s neighbor’s house – that Horn was a “good guy” doing the honorable and decent thing by killing the two men as they tried to flee with his neighbor’s property. It is doubtful the grand jury made it decision purely along this line of reasoning.  However, if that is the way a grand or a petit jury interprets the law of self-defense, then the right to life has succumbed to the value of property. It’s the same tragic attitude many predatory criminals have long adopted. They feel completely justified killing innocent people in pursuit of their criminal endeavors.


Honest, law-abiding citizens are justifiably afraid of violent crime. These are legitimate fears. There have been several recent home invasions in Harris County that left innocent people brutally murdered in what they believed was the safety of their own homes. These kinds of crimes, and the social fears they engender, certainly influenced the recent Supreme Court decision that struck down a Washington, D.C. ban on handguns and made it easier to protect the home from criminal invasion.


But the Horn case and the grand jury’s decision not to indict are nonetheless noteworthy. Had Ortiz and Torres been trying to break into Horn’s home, he would have been completely justified in killing them both. Had Horn’s neighbor been home and had Ortiz and Torres posed a threat to him, Horn would have been completely justified in coming to the neighbor’s aid. But neither was the case. Ortiz and Torres committed a burglary. They stole some property valued at $2,000. They tried to “get away” with the loot and Horn killed them before they could make their get away.


And that is the real rub in the Horn case. Does a homeowner have a right to kill burglary suspects trying to “get away” with a neighbor’s property? The fact that the two suspects were Hispanic and illegal immigrants added another troubling facet to the case. What would the community reaction have been had the two burglary suspects been local white teenagers? Would they have been considered “kids” engaged in some kind of “stupid, petty burglary?” Put quite bluntly, how would those grand jurors have responded had Horn’s victims been of the same color and social standing as the grand jurors themselves?


To say that racial prejudice and community anger over illegal immigration did not factor at all into the grand jury decision not to indict Horn would be tantamount to placing blinders on the truth.


“The American people are basically fed up with illegal immigration,” Curt Collier, President of Border Watch (an illegal immigration watchdog group), told the Houston Chronicle after the grand jury decision. “We have had a number of high-profile criminal cases where illegal aliens have been involved. Citizens have had their fill and they are speaking to speak out.”

Joe Horn did not “speak out” – he elected to “shoot it out.” But local Muslim minister Robert Muhammad rightly pointed out that Horn even violated the code of the Old West by shooting “the men in the back.”


Muhammad’s observation indeed raises an interesting point. Why didn’t Horn shoot when one of the men moved angled toward him before turning to flee toward the street? Why didn’t he shoot that burglary suspect face to face, eyeball to eyeball? It seems rather pathetic that he shot the man down in the back as he was running away. Perhaps it was easier for Horn to shoot the “dirty rotten scoundrel” that way – running away, in the back.  Or, perhaps Horn was justifiably still fearful for his life given the fact that two burglars were frantically running around him.


Muhammad said the refusal of the grand jury to indict Horn in the killing of Ortiz and Torres was not surprising. He told the Chronicle that the decision reflects a long history in Harris County of “selective prosecution.” The minister said the local criminal justice system, and the juries that enforce it, protects law enforcement officers who kill minorities while punishing minorities who kill anyone. He cited the recent acquittal of two Pasadena police officers recently acquitted by a Harris County jury in the brutal beating death of a Hispanic suspect during an arrest last summer.



Frank Ortiz, a member of the local Hispanic activist group LULAC, shares Muhammad’s sentiments: “It’s amazing to me that anyone with a Hispanic surname cannot get justice. This was no more than vigilante justice.”


Rice University sociology professor Stephen Klineberg agreed that race and illegal immigrant played a significant role in the Horn case. He told the Chronicle that once it was disclosed the two Hispanic victims were illegal immigrants, it immediately triggered anti-immigrant sentiments. Professor Klineberg said that illegal immigrants now feel they are targets for “vigilante justice.”


Within hours of the grand jury decision  the Chronicle had more than 1000 “comments” posted on its website and the local ABC-TV affiliate had another 267. One of the Chronicle’s comments was posted by Kuckerka who said: “YES! Now jail the fiancé for knowingly aiding and abetting an illegal alien.”


In a later media interview Kucherka was quoted by the Chronicle as saying that the Torres’ fiancé should “apologize” for her public statements that Horn should have been jailed for shooting the two men. Kuckerka was upset because the fiancé was protecting a man with a criminal record.


“It’s such a fine line,” Kucherka conceding later that Horn’s actions were excessive.. “There are so many what-ifs we can play out over and over again. But the victims chose to put themselves in that place at that time.”


Harris County’s Acting District Attorney Kenneth Magidson attempted to allay community concerns through a prepared statement issued following the grand jury’s decision: “[I understand] the concerns of some in the community regarding Mr. Horn’s conduct. The use of deadly force is carefully limited in Texas law to certain circumstances, and each case stands or falls on its particular facts. This office will continue to aggressively prosecute anyone who illegally engages in the use of force deadly or otherwise against another.”


If Joe Horn’s case falls within the legal parameters of the use of “deadly force” under Texas law – and that contention is certainly the subject of considerable legal debate – then there are now a wider set of circumstances under which a homeowner, protecting either his property or his neighbor’s property, will not be indicted in Harris County for the unlawful use of “deadly force.” If an individual cannot be indicted for shooting two unarmed persons in the back as they fled from the scene of a crime, then will there ever be any indictments for unlawful use of deadly force in Harris County when protection of property is at issue?


Responding to Horn’s admission through his attorney that he made a “life mistake” by shooting Ortiz and Torres, Houston Chronicle columnist Lisa Falkenberg wrote (July 1, 2008): “That message shouldn’t get lost in all the celebrating from gun-rights advocates and armchair vigilantes who continue to proclaim Horn a hero and invite him to move next door. This case has never been about gun rights, or self-defense. There are few people in this state who question someone’s right to protect themselves with a gun if his or her life, family’s life or property is threatened. This wasn’t the case with Horn. The little old man from Pasadena gunned down two men like dogs. For a bag of loot. He escaped indictment, but he’ll carry that burden for the rest of his life.”


Joe Horn, along with experienced legal counsel, has convinced a Harris County grand jury that his “motives” were innocent and his deadly actions either legally justified or un-intentional.  That may in fact be true.  But, what will Harris County do next time, when the racial tables are turned?  Community activists who kept a close eye on the outcome of this case will be watching and demanding equal justice.  At least for now, the intense public debate surrounding this case will fade and everyone personally touched by this case can again resume a private life.  This case has been a true tragedy for everyone involved.