Patterico's Pontifications


More Self Defense in Texas, Updated

Filed under: Crime — DRJ @ 9:17 pm

[Guest post by DRJ]

A few days ago, I blogged about a story in which two Texas teens were killed and a third was injured in a San Marcos home invasion that appeared to be a clear case of self-defense. (If you’re having trouble remembering the story, it may jog your memory that several comments discussed the couch on the porch and the ramshackle nature of the home.)

The police report adds a few new details:

“According to an arrest affidavit for Frank Castro — the 17-year-old charged with aggravated robbery in San Marcos following a botched home invasion that left two teens fatally shot and another seriously injured — he and his associates were trying to steal drugs.

Castro, Rudy Tinoco, John Alvarez and Jordan Mendez entered the the home in the 900 block of Chestnutt Street about 2 a.m. armed with pellet guns and a Ruger pistol, according to the affidavit.

Castro told police that a resident at the house they knew as Harry Potter was known to sell large quantities of hydroponically grown marijuana, according to the affidavit. Castro said they went to the house to rob the man, who police have not identified, of the drug.”

I wonder if Harry Potter is his real name?


41 Responses to “More Self Defense in Texas, Updated”

  1. Wow. Well, you have to be absolutely insane to break into a Texas home with a BB gun.

    The drug angle helps me understand the mindset of the idiots. Of course, they assumed they could commit a crime and the victim’s criminal behavior would prevent a police investigation. The perfect crime. Except for the fact that you don’t bring a bb gun to a gun fight.

    Juan (bd4b30)

  2. I have some questions

    If the home owner wasnt there legally – is it the castle doctrine?

    Does the castle doctrine extend to illegal activities?

    what if its a case of my word vs three dead guys? (or two heard the other guy may not make it)

    EricPWJohnson (999d2e)

  3. UPS tells its NYC drivers to make 3 right turns to get the left turn done, and it saves loads of fuel costs each year.

    Even then, no matter how many wrongs are in a single story, they still do not add up to a right. If you break into a home, expect to be met with a .44 mag. And it’ll be wholly your fault, not partially, wholly. And I still believe the dead got what they earned. (Which is different than feelings (enter melodic “can’t get it out of your head” song).)

    John Hitchcock (3fd153)

  4. This may however explain the other firearms being seized from the house.

    Even if the homicides are ruled justified the homeowner could be facing a long stint in prison if the drugs were actually present.

    Soronel Haetir (2b4c2b)

  5. They are not homicides for the home-owner if they were self-defense. But they can be homicides for the two surviving perps because they were deaths resultant from the break-in. Not a good place for the other two perps to be in, especially in Law’n’Order Texas.

    Granted, if the homeowner was a Rx for street-thugs, the homeowner has some of his own time to do. But the two survivors could be up on multiple counts tied to deaths while perping and using deadly weapons while perping and using deadly weapons while death occured while perping.

    But I only play a DA in my dreams.

    John Hitchcock (3fd153)

  6. John,

    What if it was a drug deal gone bad was I guess what I was getting at

    EricPWJohnson (999d2e)

  7. I’m not a criminal law attorney but I don’t think the existence of illegal activities at the house would negate a person’s right of self-defense. However, it might make proving it was self-defense more difficult in some cases, although apparently not here.

    DRJ (6a2898)

  8. Eric, if the door and window were obviously broken in and not out, the “drug deal gone bad” goes out the window. But the “out, not in” scenario says just that. Instead of the two surviving perps having all the criminal charges I listed, the two surviving perps and the resident would.

    Regardless, tu quoque is no legal defense.

    Again, I only play a DA in my dreams.

    John Hitchcock (3fd153)

  9. The common law principle is that when thieves fall out they both hang. Patterico discussed this one time in relation to gang shootouts. However, I believe that California has retained the common law in codified form in its criminal statutes, but that Texas adopted the MPC. So it would depend on construction of Texas’s homicide statutes.

    nk's daughter (df76d4)

  10. No, that was not my daughter, that was me.

    nk's (df76d4)

  11. It would be a question of fact in Illinois. An entry with permission can be home invasion or burglary if it is done with felonious intent. For example, you can be convicted of burglary of your local grocery store when all you think you did was shoplift a candy bar.

    The residents’ claim of self-defense would fail on the extent to which they conspired to create a situation which would lead to the commission of a felony or death or great bodily harm. Still, they would be more appropriately guilty of second degree murder/voluntary manslaughter and not murder.

    nk (df76d4)

  12. John, please don’t mangle the English language. Of course they were homicides — the homeowner killed them. Self-defence just makes them justifiable (or perhaps even praise-worthy) homicides, rather than criminal homicide.

    Aaron (086800)

  13. Aaron’s right. Homicides can be legal, but when a person is killed, that’s a homicide regardless of legal outcome.

    this is a interesting legal issue to me. Since the burden is on the homeowner to show he was justified in shooting, and the DA has a lot of evidence of drug crimes, I assume a deal will be reached. But I have no freaking clue.

    Juan (bd4b30)

  14. DRJ, nk

    Having been in the “chain of command” in the Orleans Parish DA’s office – we rarely take the word of a drug dealer over dead kids armed or not.

    Guys going to be charged

    EricPWJohnson (999d2e)

  15. The problem I see for the homeowner here is that due to the shootings the cops are and have been all over his house. If he actually has a grow operation going on that is likely to be found.

    Even if the state passes on it, the feds might go based strictly on a drugs and guns angle, and not even mention that it was found due to a justified homicide.

    Soronel Haetir (2b4c2b)

  16. Unfortunately for the dead thugs they won’t get a “do-over”. Still, I have no tears for them. They chose to put themselves in harms way. Maybe the other two will see the error of their ways. If not, then let’s hope the next homeowner is a better shot.

    As for the alleged pot growing resident shooter I have no problem with his protecting himself and/or his family. But if he is a low-life himself he gets what he deserves (hopefully). His activities will probably put some of the responsibility of the crime back on him.

    PatriotRider (6799ba)

  17. Patriot, I don’t have sympathy for people stealing drugs either, but what if these kids weren’t stealing drugs?

    What if they were murdered and their bodies planted with BB guns?

    It’s a good thing there was a survivor.

    Juan (bd4b30)

  18. I’m not the type to say I told ya so, so I’m not gonna say it.

    Houston Native (b90bc6)

  19. Juan,

    It doesn’t matter if they were stealing drugs or anything else. If someone is breaking your door down to get in and has a gun (one gun was not a pellet gun) they default to being a target. If you are stupid enough to be associating with and become an accomplice in said activities, whether or not you are carrying anything, you default to being another target. I wouldn’t shed a tear for any of the four. I chaulk it up to a culling of the herd.

    PatriotRider (6799ba)

  20. BTW, a teen out at two in the morning is most likely up to no good. Where were their parents?

    PatriotRider (6799ba)

  21. Patriot,

    We have the word of a drug dealer that they were stealing anything at all. When I ask how we know they were stealing drugs, I’m obviously not saying that if they were stealing playstations they don’t deserve to be shot.

    You don’t know that these people broke into that house at all. They probably did, but I don’t trust dealers as much as the reporter of this story. For all I know, these kids were trying to buy drugs or talk to the dealer’s girlfriend about getting abuse treatment. I admit they were probably stealing drugs, but this is just a guess.

    but it’s not ‘justice’ to kill burglars. It’s self defense. It’s a good thing I can defend my home, but it’s not like we would execute anyone for a conviction of this crime. It’s not like teens out at 2 in the morning at usually committing crimes. they usually are just trying to get laid or goof off.

    Juan (bd4b30)

  22. Juan,

    Quit being a waffling wuss. Stand up and spit out your pabulum or STFU. These kids were out to rob and having a real gun meant they were ready to kill to get what they wanted, period. Can you deal with that hard reality?

    PCD (02f8c1)

  23. PCD, I’m not waffling. I just don’t trust the word of a dealer.

    I don’t think my position is that hard to understand. I’ve never suggested it’s wrong to shoot a burglar. I just think the story is suspicious.

    I just don’t know the facts of the case. I think the shooter should be in prison for the rest of his life, too. When you’re a dealer, and people die trying to get your illegal cache, you are responsible even if they were burglars. Morally, not legally, but they have enough to get him in prison anyway.

    Like I said, maybe they didn’t break into the house.

    Juan (bd4b30)

  24. When you shoot a burglar, you are not doing so because you want them to die, or because burglars deserve the death penalty. You’re shooting them because you have a right to defend yourself from various harms. It’s not about justice, it’s about your individual right to your home and safety.

    When people take the word of a drug dealer who is probably a liar, and certainly has no problem murdering kids, since he’s a drug dealer, and laugh ‘ha! culling the herd! kids out at 2 in the morning are troublemakers!’ I think it’s worth pointing out that this is only an OK shooting if they really did break into the house. I don’t know that the dealer didn’t plant all the toy guns and the real one before hiding all his marijuana plants.

    If you sell drugs, good people no longer believe what you say, which is inconvenient if you are in a sticky situation. I don’t have the sympathy for this dealer some have. Fuck him, and let him rot in jail.

    Juan (bd4b30)

  25. Armed robbers and home invaders are just as likely to lie about their victims as drug dealers are about theirs.

    You’re at the car wash and somebody opens the passenger door, points a gun at you, and says “Your wallet and your car keys”. You fight him off, with the help of the car wash attendants, and hold him for the police. At his trial, you’re surprised when his lawyer starts asking you about the cocaine you met him there to sell him.

    nk (df76d4)

  26. “before hiding all his marijuana plants.” This is going to be very hard to do on the spur of the moment, especially if they bring in the dogs. You seem to be placing too much emphasis on the “dealer” aspect of the story. Obviously you have a thing against dealers (who doesn’t) but if they broke into his home in the middle of the night, he has the right to defend it IMO. The dealer part of the story was told by one of the teens. What makes him a truth teller? He’s trying to cover his butt. I’m with Patriot about teens being out at 2 in the morning. And if they did have guns, even pellet guns, they were up to no good.

    PatAZ (9d1bb3)

  27. I’m only going to credit the grow allegation if the cops back it up. If they don’t already have enough after tromping through the house clearing the bodies it is probably a false lead.

    I would hope a statement from the two survivors is not enough to get a warrant to do a more thorough search.

    Soronel Haetir (2b4c2b)

  28. There already was a search pursuant to a search warrant and I suspect the police took the door of the house and maybe some windows for closer examination.

    nk (40d7f4)

  29. Yeah, if we check the property-room closely enough, perhaps we’ll find the missing physical evidence from Waco there too?

    AD - RtR/OS! (5b5739)

  30. he 17-year-old charged with aggravated robbery in San Marcos following a botched home invasion that left two teens fatally shot and another seriously injured

    why is he not being charged with murder?

    aphrael (e0cdc9)

  31. Guys


    And probably was a drug house

    And the guy who shot those kids probably had a LONG RAP SHEET

    THing smells – none of these kids had a record

    EricPWJohnson (b0ac71)


    Since when?

    And probably was a drug house

    Says who, except the home invader? The police have not said so.

    And the guy who shot those kids probably had a LONG RAP SHEET

    Probably? Any support for it?

    THing smells – none of these kids had a record

    You have access to Texas juvenile arrest and adjudication records?

    My opinion is that when someone confesses to a 2:00 a.m. home invasion he had the purpose of robbery, rape, and maybe a little thrill killing, and not just scoring some marijuana.

    nk (df76d4)

  33. aphrael – why is he not being charged with murder?

    A very good question.

    Apogee (e2dc9b)

  34. Texas may have abandoned the common law felony murder rule. A lot of jurisdictions have.

    nk (df76d4)

  35. Under the prevailing felony murder rule, if one of the co-scum kills someone every co-scum is guilty of murder, but if a co-scum is killed by an innocent third party it’s just good riddance.

    nk (df76d4)

  36. Armed robbers and home invaders are just as likely to lie about their victims as drug dealers are about theirs.

    That’s probably pretty damn true. Pot growers are far less scary to me than people who break into homes with guns.

    I have no idea what happened. I don’t know a thing about any of these guys. I know some reporter claims these kids were stealing from a drug dealer, but i don’t even know if the dude is a drug dealer. It’s a case that either needs a confession or a careful jury. If the invader that got away said they were stealing drugs, then we just have a swearing match.

    I thought it was just an interesting legal issue, but it’s looking like a boring epistemology hypo.

    Juan (bd4b30)

  37. Under the prevailing felony murder rule, if one of the co-scum kills someone every co-scum is guilty of murder, but if a co-scum is killed by an innocent third party it’s just good riddance

    Interesting. I’m pretty sure that in California, if the co-scum is killed by an innocent third party whose action could reasonably have been forseen as a result of the criminal action of the scum, the other scum are still on the hook.

    aphrael (9e8ccd)

  38. Some notes from local press and contacts:

    1. The house had a door. The police took it for evidence.

    2. The police did not have any info on any of the residents dealing in drugs prior to this event. The surviving teen told them the purpose was to steal drugs or money.

    2.A small amount of marijuana (not a “hydroponic” farm) was found.

    3. Three people lived at the house. I’ve seen nothing on if “Harry Potter’s” room-mates also knew he was a dealer — or maybe more to the point, whether it can be proved they knew. No word on whether “Harry Potter” was the shooter. The shooter was in a bedroom, heard some noise in the living room, which turned out to be the intruders confronting one or both of the other residents.

    4. Texas Self-Defense Law (PC Ch 9 Sec 9.32)
    (b) The actor’s belief … that the deadly force was immediately necessary … is presumed to be reasonable if the actor:
    –(1) knew or had reason to believe that the person against whom the deadly force was used:
    —-(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, …;

    –(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.

    5. It does not take much “force” to meet the requirements of the law cited above. When this law was enacted, an ADA testifying at a legislative hearing noted that pushing open a door would constitute force, and legislators who were also criminal defense lawyers were seen nodding in agreement. This squares with legal teaching materials I have seen.

    6. It would appear that if the shooter cannot be tied to the marijuana in the house, he would be covered by the self-defense law above.

    Eric (c84fa2)

  39. Eric

    If they were dealing drugs out of the house then all bets were off,

    Police reports have NOT been made public nor have any PUBLIC statement other than its under investigation.

    There ARE search warrants

    This happens all the time – kids try to rob drug dealer ends up dead, drug dealer crys self defense

    may not work out that way

    EricPWJohnson (b0ac71)

  40. EricPW… Not sure where you are going with this…

    “If they were dealing drugs…”
    As yet, only an allegation by the un-shot invader. I suspect it is true, but it remains to be proven. Maybe someone was shooting off his mouth, someone took it seriously and launched an ill-advised invasion. The hydroponic pot farm certainly didn’t pan out (see below).

    “There ARE search warrants.”
    Well sure. ? That’s why the front door, among other things, was taken.

    “…nor have any PUBLIC statement other than its under investigation.”
    Not sure what you consider PUBLIC, but the local Police Chief Williams has provided information to the media, including at various stages,

    – “Williams said officers found a very small amount of marijuana inside the home. It will be up to the Hays County district attorney to decide if drug charges will be filed, he said.”

    – ” “At this time, we do not anticipate filing charges against the resident for firing the shots,” Williams said.”

    -“SMPD Chief Howard Williams said after the shooting that no complaints had been filed against anyone at the house and that narcotics officers didn’t have any intelligence on the home or its residents.”

    Oh, and this guy…
    -“Police Commander Terry Nichols said there was no evidence any marijuana had been hydroponically grown there.”

    Again, unless the marijuana found can be reliably tied to the shooter, I suspect this will be ruled a good defensive shooting and filed away. Time will tell.

    Eric (c84fa2)

  41. […] fatally. The police are apparently treating it as a clear case of self-defense even though it was later reported the home was the residence of a marijuana grower and drug […]

    Patterico’s Pontifications » Self-Defense, Revisited (e4ab32)

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