Commercial Investigation & Security, Houston, Texas

Written by Michele Byington; originally published on Jan. 27, 2014.

Catchy terms like “Stand Your Ground” and the “Castle Doctrine” remain common topics of dinner-table discussions because the media acts very authoritative when they glibly throw around those terms. However, these are not legal terms or standards when it comes to Texas law. You will not find the words “stand your ground” or “castle” anywhere in the Texas Penal Code. So what do these terms mean? Below, we explain the Texas laws that are loosely called the Castle Doctrine and Stand Your Ground.

What is the Texas Castle Doctrine?

The “Castle Doctrine” is a concept that comes from the philosophy that every person is the King or Queen of their home. Thus, there is never a need for the monarch of the kingdom to flee the castle before using force against an unlawful intruder. Texas Penal Code §9.31 (governing the justified use of non-deadly force) and §9.32 (governing the justified use of deadly force) are our state’s version of the Castle Doctrine. Just proving that everything is bigger in Texas, our law extends the “Castle Doctrine” beyond your residence to include your occupied vehicle and workplace.

Inside your “castle,” under certain circumstances, Texas law presumes you acted reasonably and justifiably if you use force or deadly force to defend yourself against an intruder who enters your occupied habitation, vehicle, or place of business or employment. What are the circumstances that will give you this important legal presumption? The first is where an individual unlawfully and with force, enters or attempts to enter your occupied habitation, vehicle or place of business or employment. The second situation is if an individual unlawfully and with force, removes or attempts to remove you from your occupied habitation, vehicle, or place of business or employment. If you are ever confronted with either of these situations, Texas law will presume that you acted reasonably and were justified in using force or deadly force. Therefore, in order for you to be convicted of any crime, a prosecutor would have to overcome this presumption in order to prove that you did not act reasonably. Overcoming this presumption is nearly an impossible task in a court of law.

With regard to using force or deadly force to defend your “castle,” the Texas Penal Code specifically uses the word “habitation,” not the words “building” or “property.” Texas has a very limited definition of what qualifies as a person’s habitation. The “Castle Doctrine” does not cover your entire piece of property. The legal term “habitation” is defined by Texas Penal Code §30.01 as “a structure or vehicle adapted for the overnight accommodation of persons; and includes each separately secured or occupied portion of the structure or vehicle; and each structure appurtenant to or connected with the structure or vehicle.” This means structures that are detached from where you sleep at night are not considered to be your habitation. For example, Texas law does not consider your detached garage, shed, and/or barn part of your habitation. However, if your garage, front or back porch is connected to the structure containing your sleeping quarters (as exists in many suburban communities), it is considered part of your habitation as defined by the Texas Penal Code. Yes, this slight distinction in architectural design can affect your legal rights.

Turning to the subject of vehicles, Texas Penal Code §30.01 defines a vehicle “as any device, in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation.” This is a very broad definition and appears to include anything that carries people or property from one place to another, including cars, trucks, boats, airplanes, golf carts, etc. The important point to remember is that you or someone else must be occupying the vehicle to be given the presumption of reasonableness under Texas Penal Code §9.31 and §9.32.

What About People Who are Only Trespassers?

Make sure that you do not fall victim to the common misconception that the Castle Doctrine gives you carte blanche to use deadly force merely because someone is on your property. It does not. Many people think that the law allows you to use deadly force against a mere trespasser. In fact, Texas law says the exact opposite. Texas Penal Code §9.41 allows you to use force, not deadly force, that is reasonably necessary to prevent or terminate another’s trespass on your land.

You still have a legal right to exclude or remove trespassers from your land; however you are limited to only using non-deadly force to do so. The use of force can have many different manifestations, from physical confrontation to displaying a weapon. Texas Penal Code §9.04 states that for defensive purposes the display of a weapon in order to create apprehension in another person is considered a use of force, not deadly force. That means if someone trespasses on your property, you may display your firearm to create apprehension that you will use deadly force if necessary. You will not be legally justified in discharging the firearm, but you will be legally justified in displaying it to “create apprehension” under the law. Only if the trespasser is committing other acts where the law states that you are justified in using deadly force would you be allowed to discharge your firearm legally.

For example, if you are sitting in your living room and see an individual peering in your window, you will probably not be justified under Texas law in using deadly force against the suspicious person. However, if the same fellow breaks a window and climbs through, you will be legally justified in using deadly force under Texas Penal Code §9.32. If you see the same individual scoping out your detached barn, you will not fall under Texas Penal Code §9.32, because it is not considered an occupied habitation. Note under our examples you may very well be justified under another section of the law in the use of deadly force, but not under Texas Penal Code §9.32, or what the media calls the “Castle Doctrine.”

What if a Trespasser Starts Committing Other Property Crimes?

What about defense of property? The use of deadly force to protect property is contained in Texas Penal Code §9.42. This section of the law lays out a couple of scenarios where you are justified in reasonably using deadly force to protect your property. The first is if someone is committing trespass or interference with your property and you must reasonably use deadly force to prevent arson, burglary, robbery, aggravated robbery, theft during the nighttime or criminal mischief during the nighttime. If someone is unlawfully on your property and attempting to commit any of these crimes, you will gain the legal justification for using deadly force.

The second scenario is the law of recovering your property by using deadly force. Texas has a 3-prong test that, if met, gives a justification in using deadly force to recover stolen property. This test is as follows: (1) force is necessary to prevent or terminate another’s trespass on land or unlawful interference with the property, (2) deadly force is reasonably necessary to prevent another who is immediately fleeing after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property, and (3) the person reasonably believes that the property cannot be recovered by any other method or that the use of non-deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury. We as lawyers cannot stress enough that under this scenario, while the law may allow you to use deadly force – It Is Most Likely A Very Bad Idea!

As you see, criminal trespass alone is not one of the crimes listed in Texas Penal Code §9.42 or even as part of the “Castle Doctrine” under §9.31 or §9.32. A mere criminal trespass may, however, evolve into one of the above crimes where you may be justified in using deadly force to protect your property. Let’s take another example, if someone decides to sit on your lawn, you holler at them from your bedroom window to “get off my property.” If the trespasser refuses to leave, you are almost certainly not justified in using deadly force to remove him. But if that person sitting on your lawn gets up and charges towards your bedroom window with a firearm and a crow bar, you will very likely be legally justified in using deadly force to protect yourself and your home. His actions of charging you with a weapon make him more than just a trespasser under Texas law.
Criminal Prosecution Even If You Were Justified.

Just because Texas law affords you a legal justification for using deadly force when someone attacks you or enters or removes you from your occupied habitation, vehicle, or workplace, does not mean you are immune from being arrested or criminally prosecuted – even if you are completely in the “right” as far as the law is concerned. Your right to assert legal justifications is just that: a legal justification. It is not a get out of jail free card, or an “I get to skip the entire legal process” card. In fact, always remember, there is a high possibility that you will go to jail and have to post bond to get out long before the issue of justification is considered by the government. We see cases like this commonly under the firearms program, not to mention seeing cases of this nature unfold in other states everyday. You may ultimately have to go to court and assert your justification defense before a judge or jury. This process may take months or even years to get resolved. You just dont know.

Does Texas Have a Stand Your Ground Law?

The term “stand your ground” law, again, is not a legal phrase but a phrase the media frequently uses in its reporting. Texas law tells us that there is no duty to retreat if faced with a situation where you have to use force or deadly force to protect yourself or another. Even if by retreating you could avoid the entire confrontation, you do not legally have to. Texas Penal Code §9.32(c) states that in defending yourself or another person, you have no duty to retreat if: (1) you have a legal right to be at the location where deadly force is used, (2) you did not provoke the person against whom deadly force was used, (3) and you were not engaged in criminal activity at the time deadly force was used. The statute is better classified as a “no duty to retreat” law. Under these very limited circumstances, a prosecutor or law enforcement can no longer argue that you had a reasonable “escape route” or that you should have had to “fall back” before justifiably using deadly force. If you are facing a criminal charge, qualifying under this statute could mean the difference between a conviction or not!

In order to receive the “no duty to retreat” protection from the law, first, you must have been justified under the Texas Penal Code in using force or deadly force. As we discussed above, Texas Penal Code §9.32 states that you will be presumed to be legally justified in using deadly force if someone is entering, attempting to enter, removing you or attempting to remove you from your occupied habitation, vehicle, or workplace. Texas Penal Code §9.32 also states that you will be presumed to be justified in using deadly force if someone commits or attempts to commit: aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Deadly force can be used to stop any of these crimes, as well as when it may be immediately necessary to protect yourself or another person from the attacker’s use of deadly force. If you are anywhere you have a right to be, only then does the use of deadly force with no duty to retreat apply under the statute. To paraphrase a very effective jury argument, the statute is designed to protect you when “trouble finds you, but not when you go looking for trouble.”

Disqualifications for No Retreat Protection

There are multiple situations where your conduct may potentially disqualify you from the Texas “no duty to retreat” provision. In order to receive Texas Penal Code §9.32(c)’s “no duty to retreat” protection, you must be justified in using force under Texas Penal Code §9.31. Second, the no retreat statute itself has three more qualifications that must be met before you gain the statute’s protection.

Disqualifying Under Texas Penal Code §9.31

If you want to protect yourself or another person, there are multiple situations under Texas Penal Code §9.31 where you will not be justified in using force or deadly force. If you fall under one of the following situations, you will not be given the “no duty to retreat” protection in the legal system:

1. The use of force is not justified in response to verbal provocation alone. (If someone is only yelling at you, you are not justified in using force against them).

2. You will not be justified in using force to resist arrest or search being made by a police officer. Even if the arrest or search is ultimately proven to be unlawful.

3. The use of force against another is not justified if you consent to the force. (No dueling or consenting to gun fights).

4. If you seek a discussion with another person regarding your differences while unlawfully carrying a weapon, you will not be given the “no duty to retreat” protection. Unlawful carry of a weapon includes:

a. a non-CHL holder carrying in places other than their premises, vehicle or watercraft;

b. having a handgun in plain view;

c. engaging in criminal activity while carrying a weapon; or,

d. carrying a weapon by a person who is a member of a criminal street gang.

Qualifying Under the No Duty to Retreat Statute

As we discussed earlier, the first thing that must be satisfied to receive the no duty to retreat protection is that the person had a legal right to be in the location where deadly force was used. What does the law mean that you “have to be in a location where you have a legal right to be?” The best way to address this topic is to discuss places where you do not have a legal right to be. Any location where you would be considered a trespasser is by definition, a place where you do not have a legal right to be. Under Texas Penal Code §30.05, a person becomes a criminal trespasser if a person enters or remains on property without effective consent, or the person had notice that entry was forbidden or received notice to depart but failed to do so. Notice of trespassing includes: oral or written communication, fencing, signs posted on the property indicating that entry is forbidden, purple paint marks on trees or posts on the property, or crops for human consumption growing on the property. As long as you are in a place where you are not considered a trespasser by the law, you most likely have a legal right to be there under the no duty to retreat statute.

If you satisfied the location test, you cannot have provoked the other’s use or attempted use of force. You can’t start the fight and claim justification, however, there are several exceptions to this rule. (Yes, an exception to the exception.) If you abandon the encounter or clearly communicate your intent to abandon and you cannot do so safely, and the other continues to use unlawful force against you, you do not have a duty to retreat.

A very similar scenario recently played out in a district court in Harris County. The accused was convicted of murdering his neighbor in a conflict that started with a noise complaint. The accused videotaped the entire confrontation. If you watch the last couple of minutes of the video, it appears that the accused was justified in discharging his firearm after three men charged him. However, the previous approximately twenty minutes of the video showed the accused leaving his property with his handgun, trespassing on his neighbor’s property, and taunting the neighbors by flashing his pistol. Thus, the accused did not qualify for the “no duty to retreat” statute. In fact, the prosecutor in that case told the jury that “self-defense was never meant to protect the one that started the fight.” The jury only deliberated for 90 minutes before returning a verdict of guilty on a murder charge and ultimately sentenced him to 40 years in prison.

Finally, you cannot be engaged in any criminal activity, other than a Class C misdemeanor traffic offense, at the time deadly force was used and claim self-defense. I would advise refraining from any criminal activity.

As you can see, the Texas versions of the Castle Doctrine and Stand Your Ground laws are extremely complex and cannot be summarized with a simple catch phrase. These topics consume thousands of pages of legal treatises and many lawyers’ careers, so obviously this article is only a brief overview. If you have any questions about Texas firearms laws, do not hesitate to contact us.

Source: Texas Law Shield

Recently, there has been increased media coverage across the country regarding theft at gas stations. The unique setting allows thieves to catch their victims by complete surprise — when they are pumping gas or paying their tab inside the station. Most of the time, gas station customers leave their car doors unlocked and items like purses and wallets are often left in plain view. A thief is able to drive up next to the victim’s car, open an unlocked door, and grab any valuables within reach. Then, the thief quickly drives off. It happens in a matter of seconds.

But these thefts can be easily prevented if the appropriate precautions are taken. NCPC and the Metropolitan Police Department of the District of Columbia recommends the following tips to prevent citizens from becoming victims of theft at area gas stations.

• Pick stations that are well-lit and have video surveillance cameras at the pump.
• Always remove your keys and lock the doors while you are pumping gas.
• Keep valuables out of plain view in your vehicle and lock the doors even if you are going inside for a moment.
• Pay attention to your surroundings.
• Don’t let your cell phone distract you.

Source: National Crime Prevention Council

Source: Texas Law Shield

Strategy

Violence claims two victims, the person or people victimized and the community, which experiences trauma, fear, and stress. Crisis response teams help residents, including witnesses of violence, cope with a violent incident and its aftermath.

Crime Problem Addressed

Each year in the United States, millions of residents fall victim to violent crime, which also causes fear and stress to neighbors, children, businesspeople, and other community members. This strategy attempts to provide immediate intervention and support by community groups and local government.

Key Components

The strategy depends on a multidisciplinary team of health professionals, counselors, police, and youth ready to respond immediately to violent crimes in the community. While on patrol or on referral from the police, the team visits neighbors, victims, and children in the community to help them cope with the trauma of violent crime and tell them where they can obtain counseling, medical assistance, or legal help. Some programs maintain contact with religious leaders, who may be called to the scene to help victims and their families. In communities with significant youth gang violence, the programs use community mediation techniques to diffuse gang rivalries and diminish the prospects of retaliation and additional violence.

Key Partnerships

The strategy’s success relies on collaboration between complimentary service providers from local agencies and community groups. Individuals and groups must establish communication links to ensure that team members respond as needed to violent incidents.

Potential Obstacles

Participating agencies may find it difficult to provide enough staff to apply the strategy throughout the city. Close cooperation between agencies and the police department helps in determining where services will most likely be needed, maximizes resources, and lessens response time.

Signs of Success

The Community Crisis Response Team of Cambridge Hospital includes health care workers, judges, teachers, parents, police, probation officers, social workers, and youth workers. Recognizing that violent crime victimizes all residents of a community, the program’s creators designed it to coordinate agency response to neighborhood occurrences of extreme and traumatic violence. The program focuses on trauma debriefings and training staff to deal with the psychological trauma of victims, witnesses, and neighbors. The program’s goal is to empower the community and foster its long-term resiliency through community crisis intervention. Using a National Organization for Victim Assistance handout on psychological trauma in children and adults, the team intervened at fifty-nine separate events and assisted more than seven hundred individuals in 1991.

Applying the Strategy

Washington, D.C.’s Youth Trauma Team includes a group of psychologists, social workers, police officers, and recreation workers. Responding immediately to violent incidents, the team offers counseling and support to children and others in the neighborhood. The program receives support from Howard University’s Violence Prevention Project, which offers an after-school program and a summer camp for children who have witnessed violence.

The pastor who directs Mobile, Alabama’s Group Against Narcotics and Gangs intervenes at the scene of violent incidents on an on-call basis. Since 1990 his rapport with gang-involved youth has helped his team prevent violence on several occasions. The team mediates disputes among rival gang members and assists neighbors who feel threatened. The organization also offers runaway or displaced youth accommodations in a neighborhood safe house.

Source: National Crime Prevention Council

Creating a safe workplace can be challenging. That’s true even when the job and its hazards don’t change much from day to day. Imagine if your employees worked on a construction site one day and an assembly line the next.

That’s a very real scenario that plays out at staffing agencies every day.

Workers employed through staffing agencies are called temporary or supplied workers. Some show up on a job site with decades of experience. Others are “greenhorns” who don’t understand the hazards of the job or how to protect themselves.

Temporary workers are at double the risk of suffering severe injuries, including crushing incidents, lacerations, punctures and fractures, according to ProPublica. And in 2014, nearly 800 contract workers died on the job, a 47 percent increase since 2011.

The Occupational Safety and Health Administration (OSHA) recognized the trend and launched an initiative to protect temporary workers in 2013. OSHA instructed its inspectors to assess whether employers who use temporary workers are complying with their responsibilities under the Occupational Safety and Health Act. Inspectors are also evaluating whether temporary workers received necessary safety training.

As we approach the holiday season, retail businesses are beefing up their workforces with temporary labor. OSHA encourages staffing agencies and host employers to follow these best practices:

• Staffing agencies and host employers should remember that OSHA’s General Duty Clause guarantees everyone, including temporary workers, the right to a safe workplace.
• Staffing agencies and host employers share the responsibility for keeping temporary workers safe. Typically, staffing agencies provide general safety training, and host employers provide job-specific training.
• Staffing agencies and host employers should enter a contract. The contract should specify such things as what tasks temporary workers will do, what training they will receive, and who will provide training and personal protective equipment.
• Host employers should never ask temporary workers to do any task they have not been trained to do safely.
• The supervising employer must set up a process for temporary workers to report work-related injuries and illnesses.
• OSHA requires the employer who provides day-to-day supervision to record temporary worker injuries on their OSHA injury and illness log. Day-to-day supervision should be spelled out in the contract.
• Staffing agencies and host employers should jointly investigate accidents, determine root causes and implement corrective measures.

More resources

• American Staffing Association
• National Institute for Occupational Safety and Health

Source: Texas Mutual

The smart home is a clear step into the future of home security, which comes with exciting implications and new devices to explore. Users are able to unlock doors in convenient situations like when hands are full of groceries, or lock doors if they forgot to secure the premises. Home cameras help parents monitor homes while on vacations. Baby monitors have improved in such a way that parents are able to keep an eye on their children even while outside the house.

Yet many devices that are intended to keep the home safe are connected to the internet, or pass information wirelessly. And as such, any kind of information transferred in this way is susceptible to interception. This is home invasion gold for hackers who know what they’re doing, and have the potential to put homes in danger.

Here are a few of the devices that have been flagged for potential to hacker attacks in recent months — and are devices you should make sure to do diligent research on before connecting to your home.

Baby Monitors

A firm in Massachusetts, Rapid7 Inc., reviewed 9 internet-connected baby monitors and found security flaws in every single one. For example, iBaby Labs is a baby monitor that streams a live feed, which can be accessed by username and password. The password can be guessed an unlimited number of times until the correct password has been found, a technique called brute forcing. Philips brand has a baby monitor that also failed the security test, as all of their baby monitors come with the same username and password before the user changes it, which means an uninitiated system could easily be hacked into. Another example is the Summer Infant baby monitor, which is also susceptible because anyone who knows the camera’s ID number can create an account for access.

Smart TVs

Voice recognition technology has come to your television, an exciting revolution that improves the TV watching experience significantly. Just this week, Apple released its newest version of Apple TV, with the Siri voice technology as one of the main new features. However Samsung’s version of a smart TV is susceptible to hackers, due to their version of voice command technology. The company revealed that they share the voice commands with Nuance, Samsung’s third-party voice recognition service. The data transmission lacks encryption, and the stream does not use a secure HTTPS protocol. This means that the streams are susceptible to hacker interference, allowing a savvy hacker to access the homeowner’s smart TV and home network credentials.

Garage Doors

A security researcher, serial hacker and independent developer hacked a Mattel toy to create a universal garage door openers. The toy, IM-ME, is now out of production, but was a toy for children to be able to send instant messages to friends in close proximity. Samy Kamkar, the serial hacker, found a way to manipulate the toy so that it can crack the code of any fixed garage door system. Fixed code garage door openers have only a dozen binary lock switches that are permanently set at the factory. This means there are 4,096 possible codes to gain access. Cycling through all the 4,096 combinations normally takes about a half an hour. However, the hacking tools developed for the IM-ME computer helped Kamkar get that time down to 10 seconds or less.

Ways to Protect Yourself

In the era of the “Internet of Things,” a term coined for the growing number of internet connected everyday devices such as cars, televisions, even refrigerators, security will become more complicated to address. It is always wise to do your research before choosing a product, especially if there are security reports from third-party companies you can access. It is important to use strong passwords and change them frequently, as well as restraining from sharing them with as few people as possible. Finally, be sure to check for security updates on your devices, as sometimes a new version update can be just the trick to make your home significantly safer.

Source: El Dorado Insurance Agency, Inc.