inkedjaydee said on November 11, 2009

ok so im writing an interoffice memorandum for this case as the prosecution attempting to charge this person with 2 counts of first degree murder.

some of you might know about it. its that guy joe horn from texas that shot & killed 2 colombian men who were breaking into his neighbors house. he was let off on grounds of defense of property (which i cannot be discuss in the memorandum, only self defense is permitted because texas has an insane defense of property statute under which he was ridiculously justified).

here's the audio of the 911 call: http://www.youtube.com/watch?v=LLtKCC7z0yc

what do you think? was this murder or truly self-defense?

some info the tape doesnt give: the 2 victims were shot in the back. 1 body was found across the street & the other in mr. horns front lawn. mr horn claims they were running at him & he feared for his life. both victims were illegal aliens. 1 had no criminal record & the other had been arrested & convicted on cocaine charges & was supposed to be deported, but never left the country.

so what do you guys think? opinions?

im doing this & feel like its really interesting & wouldnt mind hearing all your opinions.

i already have my answer ill hold on to till the end. maybe ill post a copy of my memorandum if you guys are interested in reading it or email it to whoever wants it.

inkedjaydee said on November 11, 2009

alright guys..here's everything but the conclusion which is where i nab him for the 2 counts of first degree murder due to his 6:49 convo with the dispatcher about killing both of these men (obviously meeting the premeditation necessary for first degree murder & eliminating a "heat of passion" killing). let me know what you guys think..its still a rough draft lol

TO: CHIEF PROSECUTOR
FROM: DEPUTY PROSECUTOR- 0593933
SUBJECT: STATE V. JOE HORN- MURDER CASE
DATE: 11/13/2009

STATEMENT OF FACTS

On the afternoon of November 14, 2007 Joseph Jay Horn observed Hernando Torres and Diego Ortiz breaking into his neighbor’s home with a crowbar and called Pasadena 911. Immediately after providing the Pasadena 911 dispatcher with his address, Mr. Horn stated that he had a shotgun and asked the dispatcher if he wanted him to stop the men to which the dispatcher replied, “No, don’t do that. There is no property worth shooting somebody over, OK?” Throughout the call, Mr. Horn proceeded to provide the dispatcher with the information he requested while also stating multiple times he “wasn’t going to let them go” and that “he wasn’t going to let them get away with this shit.”
During the 911 call, Mr. Horn stated that he did not know if the men were armed or not, but that he knew they had a crowbar. He also told the dispatcher that he could not see anyone at or inside the house and that he “didn’t really know” the neighbors whose house was being broken into. Mr. Horn repeatedly warned the dispatcher that he was going to go outside and that he was “going to shoot.” Despite Mr. Horn’s insistence on going outside of his home with the shotgun to stop the men, the dispatcher clearly warned him not to a total of 14 times. Upon seeing the men exiting his neighbor’s home, Mr. Horn’s last statement to the dispatcher prior to leaving his home was, “Well, here it goes, buddy, you hear the shotgun clicking and I’m going.”
The struggle between the dispatcher and Mr. Horn lasted roughly about 6 minutes and 49 seconds before Mr. Horn encountered the two men outside his home saying, “Move, you’re dead!” He then fired 3 blasts from his shotgun killing both men. Mr. Horn called Pasadena 911 again, admitted he shot the men and said that he “had no choice, they came in the front yard.”

QUESTION PRESENTED

Whether there are any viable self-defense claims for Mr. Horn under § 9.31 or § 9.32 of the Texas Penal Code for the shooting and killing of Hernando Torres and Diego Ortiz which took place on November 14, 2007 in Pasadena, Texas.

BRIEF ANSWER

No. Mr. Horn does not have any self-defense claims under § 9.31 or § 9.32 of the Texas Penal Code that would justify his use of deadly force during a burglary that occurred at his neighbor’s home.

LEGAL DISCUSSION

I. USE OF FORCE FOR SELF-DEFENSE UNDER TEX. PENAL CODE ANN. § 9.31

Tex. Penal Code Ann. § 9.31 states that 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 statute presumes the actor’s belief that the force was immediately necessary to be reasonable if 3 elements are met.

The first element is if the actor knew or had reason to believe that the person against whom the force was used was committing one of the enumerated acts.

Subsections (1)(A) and (1)(B) of this element both deal with unlawfully and with force entering or attempting to enter the actor’s occupied habitation and unlawfully removing or attempting to remove the actor from his habitation, respectively. A “habitation” is defined by Texas Statute § 30.01 to mean a structure that is adapted for the overnight accommodation of persons and includes each separately secure or occupied portion of the structure and each structure appurtenant to or connected with the structure.

Although Mr. Horn claims that the men came onto his property, these subsections cannot be met because, by stepping onto his yard in the process of fleeing, the men were not unlawfully entering or attempting to enter Mr. Horn’s habitation. His lawn was not separately secured nor was it occupied and it is not a structure to be considered appurtenant to or connected with his home. Likewise, it cannot be said that the men were unlawfully and with force removing or attempting to remove Mr. Horn from his habitation because he came outside out of his own free will and against orders form the dispatcher.

Subsection (1)(C) allows the actor to use force if he knew or had reason to believe that the person against whom the force was used was committing or attempting to commit a robbery or aggravated robbery, as well as some other crimes currently not at issue. A robbery is classified as the felonious taking of personal property from the person or their immediate presence against his will accomplished by means of force or threat of force.

Mr. Horn cannot claim that he used force pursuant to subsection (1)(C) because he did not know or, based off of his conversation with the 911 dispatcher, believe his neighbors were present when the men broke into the home. Therefore, his belief was actually that the men were burglarizing the home and not committing a robbery or aggravated robbery.

The second element is that the actor did not provoke the person against whom the force was used. It will be difficult for Mr. Horn to argue that he did not provoke the men because, had he followed the dispatcher’s orders and stayed inside his home, the men would have simply continued to attempt to escape. Mr. Horn’s actions in exiting the home and confronting the men may be considered a provocation, further debilitating his self-defense claim.

The third element is that the actor was not otherwise engaged in criminal activity, which Mr. Horn was not. This is the only element that Mr. Horn can assert he meets for the use of force in self-defense.

II. USE OF DEADLY FORCE FOR SELF-DEFENSE UNDER TEX. PENAL CODE ANN. § 9.32

Similar to § 9.31, § 9.32 of the Tex. Penal Code Ann. sets out 2 elements where a person is justified in using deadly force against another. For the purpose of § 9.32, Texas Statute § 9.01 defines “deadly force” as force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing death or serious bodily injury. A shotgun, intended and known by Mr. Horn to cause, or in the manner of its use or intended use is capable of causing death or serious bodily injury, is an example of deadly force.

The first element in justifying use of deadly force against another is if the actor would be justified in using force against the other pursuant to § 9.31. As previously noted, Mr. Horn was not even justified under that section to use force, let alone deadly force. His self-defense claim for use of deadly force fails at the first element and, in failing to meet one of the elements his claim fails as a whole.

CONCLUSION

He's FUCKING GUILTY!

inkedjaydee said on November 12, 2009

heres the conclusion & the rest:

CONCLUSION

Mr. Horn’s use of deadly force in self-defense against two men who were committing a burglary and larceny at his neighbor’s home was not proper under Texas self-defense law. In fact, Mr. Horn was not justified in using any type of force under these circumstances. Mr. Horn’s claim that he feared for his life because he perceived the men to be coming at him cannot possibly be true being that the men were shot in the back. Therefore, the shooting and killing of these two men, criminals or not, was not justifiable in any way.

Mr. Horn knowingly and intentionally caused the death of both of these individuals without adequate cause. This is clear because throughout the six minute and forty-nine second phone call with the dispatcher, Mr. Horn was engaged in cool reflection and he did not act out of sudden passion. At no point during the conversation with the dispatcher does it appear that Mr. Horn’s mind has been rendered incapable of cool reflection. It is unlikely that Mr. Horn will be able to prove at trial by a preponderance of the evidence that he caused the deaths of the men under the influence of sudden passion arising from adequate cause. For these reasons, Mr. Horn should be charged with two counts of first-degree murder pursuant to Tex. Penal Code Ann. § 19.02.

PROSECUTORIAL DISCRETION DISCUSSION

Mr. Horn was a 61 year-old man who had a confrontation with two illegal immigrant men who were breaking into his neighbor’s home. For this reason, charging Mr. Horn with two counts of first-degree murder may pose an issue. The grand jury may be reluctant to find Mr. Horn guilty on two counts of first-degree murder because they may be sympathetic. He may be seen as a “Good Samaritan” or even a hero.

I suggest pursuing two counts of a lesser charge such as manslaughter pursuant to Tex. Penal Code Ann. § 19.04. Here the grand jury would find him guilty if it can be proved that Mr. Horn recklessly caused the deaths of both individuals. This seems like an easier avenue for us because the grand jury may be more willing to accept these charges since it is a second-degree felony and carries lighter penalties than a first-degree murder charge. Also, a fairly strong argument can be made that Mr. Horn acted recklessly by ignoring the orders of the 911 dispatcher and exiting his home armed with a shotgun during the commission of a burglary and larceny at his neighbor’s home to confront the men while they were attempting to flee. This seems like an argument that the grand jury may be more likely to be persuaded by.

There is also a concern that Mr. Horn may attempt to assert that these men were dangerous individuals who could have seriously injured or killed someone being that they had burglarized a home in broad daylight and that he was attempting to apprehend them. In this case, I refer you to Tennessee v. Garner, 471 U.S. 1 (1985) which states that apprehension by use of deadly force is a “seizure” subject to the reasonableness requirement of the Fourth Amendment. The Court here ruled a Tennessee statute unconstitutional because it authorized the use of deadly force against unarmed, nondangerous fleeing suspects, specifically an unarmed 15 year–old boy who burglarized a home at night. The Court held first that the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous, so as to justify use of deadly force in effectuating his apprehension. The Court also held that the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable, and where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. These were limits placed by the Court on police officers.

In our facts, the two unarmed men were breaking into the home in broad daylight making it even less likely to consider them physically dangerous, so as to justify the use of deadly force in apprehending them. If a police officer wouldn’t have been able to use deadly force in apprehending the individuals in this situation, then neither would Mr. Horn. Also, since the men would have been less likely to be considered physically dangerous, Mr. Horn’s belief that they were may have been completely unreasonable.

In any situation, Mr. Horn was not justified in using any force, let alone deadly force, in self-defense or in apprehending these two men.

inkedjaydee said on November 12, 2009

lol 2nd year law student...1 more year & i get my jd...shoot me a pm if you want.