Life In Danger Question

[joe817]

Many thanks hirundo82. There's a lot of good info in those links & I've copied them my favorites folder.

[_packsaddle_]

Lets say he walks up and, as expected, demands your wallet, keys, & your watch. No sign of a weapon yet. What do you do?

That is called robbery.

There is no such thing as attempted robbery in Texas.

Once he demands money, deadly force is justified.

[RPB]

Lets say he walks up and, as expected, demands your wallet, keys, & your watch. No sign of a weapon yet. What do you do?

That is called robbery.

There is no such thing as attempted robbery in Texas.

Once he demands money, deadly force is justified.

I noticed it's your first post, welcome to the forum.

That's right, a demand for property would be robbery, in my layman's opinion, unless it's a wheelchair bound, sickly, anorexic, unarmed, non-threatening dwarf, 4 year old girl in a pink dress, who is throwing a fit to get a quarter to call her parents because she is lost and needs to call for a ride home, who was doing the demanding.

Sec. 29.02. ROBBERY. (a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
(b) An offense under this section is a felony of the second degree.

At the point he commits the robbery, and you present a handgun, there probably really isn't a renunciation "affirmative defense" available to him, in my layman's opinion.

Texas Penal Code Title 4 Inchoate Offenses
Chapter 15: PREPARATORY OFFENSES
Sec. 15.04. RENUNCIATION DEFENSE. (a) It is an affirmative defense to prosecution under Section 15.01 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor avoided commission of the offense attempted by abandoning his criminal conduct or, if abandonment was insufficient to avoid commission of the offense, by taking further affirmative action that prevented the commission.
(b) It is an affirmative defense to prosecution under Section 15.02 or 15.03 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor countermanded his solicitation or withdrew from the conspiracy before commission of the object offense and took further affirmative action that prevented the commission of the object offense.
...
(c) Renunciation is not voluntary if it is motivated in whole or in part:
(1) by circumstances not present or apparent at the inception of the actor's course of conduct that increase the probability of detection or apprehension or that make more difficult the accomplishment of the objective; or
(2) by a decision to postpone the criminal conduct until another time or to transfer the criminal act to another but similar objective or victim.

--------------------

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
-------
Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
---
Sec. 9.06. CIVIL REMEDIES UNAFFECTED. The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.
==============

If you aren't afraid of the non-threatening little girl and she causes no injury, that might be considered an attempted theft. For which I don't see a justification for DEADLY Force, though FORCE could be used I believe AFTER the theft is committed. I have seen some really scary little girls though.

PENAL CODE
TITLE 4. INCHOATE OFFENSES
CHAPTER 15. PREPARATORY OFFENSES
Sec. 15.01. CRIMINAL ATTEMPT. (a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
(b) If a person attempts an offense that may be aggravated, his conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the offense accompanies the attempt.
(c) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.
(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor.
---
Sec. 31.03. THEFT. (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. ....
------

Force, but not deadly force...

SUBCHAPTER D. PROTECTION OF PROPERTY
Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

[_packsaddle_]

If you aren't afraid of the non-threatening little girl and she causes no injury, that might be considered an attempted theft.

There is no such thing as attempted theft in Texas.

What separates theft from robbery is the use of force or the threat of force.

If someone demands something from you without your consent it is robbery.

Therefore, deadly force would be justified.

[MojoTexas]

I probably wouldn't draw unless he demanded money (robbery as previously mentioned) or produced a weapon. However I wouldn't let him get too close. If he started getting too close, I'd probably say something like, "What do you want?" If he didn't stop, I'd put my hands up, palms outward and say something like, "Whoa...what's going on?" I would also try backing up and start looking for cover.

I don't doubt my ability to pull the trigger in a self-defense situation, but I've read enough Massad Ayoob stories about what happens in shootings to know that I would much rather avoid a confrontation if at all possible. I also know from experience that you can't always judge a book by it's cover. Just because someone LOOKS different than you (e.g., biker, redneck, "gangsta") doesn't mean that they are criminals. I've known several guys that LOOKED like 2% bikers, but actually were law-abiding people with families and good jobs.

I stay alert and try to avoid situations that make me feel uncomfortable, but I feel pretty confident that I would only pull out my weapon if I truly felt my life was in danger.

[RPB]

Ok, what am I missing or not understanding? I retired 2 years ago, did something change? Or, maybe I'm overlooking or just missing something

Once again, welcome to the forum, please educate me, I've been away from legal research a while now..

Attempted theft was not a criminal offense in this State before the Texas Penal Code of 1974. See Senter v. State, 411 S.W.2d 742, 744 (Tex. Crim. App. 1967). Before 1974, there were a number of special attempt statutes relating to specific offenses, for example, rape (Art. 1190, Tex. Crim. Stat. 1925), burglary (Art. 1402, Tex. Crim. Stat. 1925), and theft from the person (Art. 1439, Tex. Crim. Stat. 1925).

The Penal Code of 1974 included a general attempt statute which applies to all criminal offenses defined by the Penal Code. Tex. Penal Code Ann. § 15.01 (West Supp. 1994). This is a difficult statute to apply.

To prove the offense of attempted theft, the State must prove that an accused had a specific intent to steal a particular article of property and that the accused engaged in an act which amounted to more than mere preparation that tended to accomplish his intent to steal that particular article of property.

http://www.3rdcoa.courts.state.tx.us/op ... ionID=6601" onclick="window.open(this.href);return false;

See PENAL CODE
TITLE 4. INCHOATE OFFENSES
CHAPTER 15. PREPARATORY OFFENSES
Sec. 15.01. CRIMINAL ATTEMPT.
http://www.statutes.legis.state.tx.us/D ... .htm#15.01" onclick="window.open(this.href);return false;

[srothstein]

Ok, what am I missing or not understanding?
{snip}
The Penal Code of 1974 included a general attempt statute which applies to all criminal offenses defined by the Penal Code. Tex. Penal Code Ann. § 15.01 (West Supp. 1994). This is a difficult statute to apply.

To prove the offense of attempted theft, the State must prove that an accused had a specific intent to steal a particular article of property and that the accused engaged in an act which amounted to more than mere preparation that tended to accomplish his intent to steal that particular article of property.

You are not missing much. There is an attempted theft crime in Texas, and it can be even more clearly by the exact reason why there is no such thing as attempted robbery.

PC 29.01 shows that the attempted theft is included in the robbery statute, so you cannot attempt robbery.


Sec. 29.01. DEFINITIONS. In this chapter:

(1) "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.

[RPB]

Ok, what am I missing or not understanding?
{snip}
The Penal Code of 1974 included a general attempt statute which applies to all criminal offenses defined by the Penal Code. Tex. Penal Code Ann. § 15.01 (West Supp. 1994). This is a difficult statute to apply.

To prove the offense of attempted theft, the State must prove that an accused had a specific intent to steal a particular article of property and that the accused engaged in an act which amounted to more than mere preparation that tended to accomplish his intent to steal that particular article of property.

You are not missing much. There is an attempted theft crime in Texas, and it can be even more clearly by the exact reason why there is no such thing as attempted robbery.

PC 29.01 shows that the attempted theft is included in the robbery statute, so you cannot attempt robbery. By definition, there couldn't be .... it is robbery, not attempted robbery. Deadly force is justified to prevent it.


Sec. 29.01. DEFINITIONS. In this chapter:

(1) "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.

Yeah, I picked up on that. I agree/concur, _Packsaddle_ and you are correct, there is no such thing as attempted robbery in Texas.... it is robbery, not attempted robbery, and deadly force is justified to prevent it (and theft during the nighttime)

[srothstein]

That's right, a demand for property would be robbery, in my layman's opinion, unless it's a wheelchair bound, sickly, anorexic, unarmed, non-threatening dwarf, 4 year old girl in a pink dress, who is throwing a fit to get a quarter to call her parents because she is lost and needs to call for a ride home, who was doing the demanding.

We need to be careful about this, especially as we discuss the justification for using force or deadly force. As you clearly show by your example, the mere demand for money is not a robbery. There must be some other factor present that puts the victim in fear of injury. The victim MUST be able to articulate exactly why he was in fear.

One of the interesting problems where this might be used is in bank robberies. Normally a bank robbery as a federal crime is also chargeable as a state crime of robbery or aggravated robbery. But if the actor stands in line and doesn't say anything or show any weapons he has not communicated the threat. If he just slides a note to the teller that says "Give me $10,000" and the teller complies, he has not committed a robbery. He has committed a theft by taking property without the owner's permission and he might have committed the federal crime of bank robbery, but he has not violated PC 29.02 since he has done nothing to put any reasonable person in any fear. This is a problem since everyone knows tellers are told to just cooperate.

[RPB]

That's right, a demand for property would be robbery, in my layman's opinion, unless it's a wheelchair bound, sickly, anorexic, unarmed, non-threatening dwarf, 4 year old girl in a pink dress, who is throwing a fit to get a quarter to call her parents because she is lost and needs to call for a ride home, who was doing the demanding.

We need to be careful about this, especially as we discuss the justification for using force or deadly force. As you clearly show by your example, the mere demand for money is not a robbery. There must be some other factor present that puts the victim in fear of injury. The victim MUST be able to articulate exactly why he was in fear.

One of the interesting problems where this might be used is in bank robberies. Normally a bank robbery as a federal crime is also chargeable as a state crime of robbery or aggravated robbery. But if the actor stands in line and doesn't say anything or show any weapons he has not communicated the threat. If he just slides a note to the teller that says "Give me $10,000" and the teller complies, he has not committed a robbery. He has committed a theft by taking property without the owner's permission and he might have committed the federal crime of bank robbery, but he has not violated PC 29.02 since he has done nothing to put any reasonable person in any fear. This is a problem since everyone knows tellers are told to just cooperate.

So, in a nutshell (I love that legalese term ... in a nutshell ) You are saying all material elements of the offense must be present, or something like that?

Sec. 29.02. ROBBERY. (a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

(b) An offense under this section is a felony of the second degree.

[texas1234]

Anytime somebody walks up to me I immediately take the upper hand by talking to them. I had a guy walk up to me off 288 and yellowstone a few months back at a terrible gas station in Houston. I immediately said, "whats up dude" in a sarcastic type ticked off voice as I stared at him. He cowed a little and said "man everybody thinks I am going to rob them, I am just looking for some gas money". I said, "Well your in an area where people get robbed dont take it personal, here is a buck"

But the entire time I was watching his actions and the fluxuation in his voice. You can people read a lot just by asking them "whats up dude"

That is how I handle those situations.

[davidtx]

I think that making eye contact and talking to them will cause many BG's to back off. Most of them are looking for victims. When you engage, you send a clear message that you aren't in condition white.

[casingpoint]

The OP said:

I'm walking to my car. The parking lot is pretty empty and I see a gangster looking thug about 20' away walking directly at me. He has that "up to no good" look and is obviously fixated on me but no signs of a weapon. He could be coming out to help me load my groceries- or to rob me. What do you do?

Fact is, a person with criminal intent can often get right up to you without doing anything that would give you legal cause to defend yourself.

[RPB]

The OP said:

I'm walking to my car. The parking lot is pretty empty and I see a gangster looking thug about 20' away walking directly at me. He has that "up to no good" look and is obviously fixated on me but no signs of a weapon. He could be coming out to help me load my groceries- or to rob me. What do you do?

Fact is, a person with criminal intent can often get right up to you without doing anything that would give you legal cause to defend yourself.

True, the first time I had a loaded .38 at my head, I had been talking casually to the fairly well-dressed clean-shaven normal-looking man who was pretending that he wanted to buy a set of stereo speakers from the store where I was working, he turned slightly and his hand went to his waistband and he drew his mexican-carried .38 in one smooth relaxed non-hurried motion, nothing abrupt or alarming occurred prior to that.

[03Lightningrocks]

This is a real simple question to answer. Tell the guy to stop and get away from you. What on earth necessitates my being polite to a person approaching me for anything in a parking lot? The answer is.... nothing! I have actually done this many times in this exact situation. Usually I say something like, "I'm not interested, go away." They keeping walking towards you as they speak??? Which happens. You then get a little more tense and say... I am not kidding. STAY AWAY FROM ME. As you say this, move your hand over the area you have your gun because at this point if he keeps coming, you have a serious problem on your hands. Be firm and assertive. My way of thinking is that if a person approaching me intends to do me harm, I might as well force the issue with as much distance between us as possible. Being nice is not going to change a BG's mind.