Update: AUSTIN clerk convicted for shooting beer thief

[A-R]

*NOTE: link to story of conviction is on page two of thread*

This will be an interesting trial for us CHL holders to follow. This man wasn't carrying under a CHL, but did apparently "study" laws on deadly force to protect property and that is being used against him by prosecutors

Of course, he also apparently tampered with evidence and made A LOT of other mistakes.

I'll try to update this whenever the paper does.

http://www.statesman.com/news/local/tri ... 77079.html" onclick="window.open(this.href);return false;

In the months before South Austin convenience store clerk Juan Romero fatally shot a man who police say was stealing a 12-pack of Budweiser in 2009, Romero bought a pistol and researched Texas law regarding the use of deadly force to protect property, according to a court filing.

He also used the gun, a 9 mm, to deter previous would-be thieves, including by firing warning shots, said the document, filed by prosecutors to give the defense notice they might use the information at Romero's trial.

Today , a 12-member Travis County jury will begin hearing evidence on whether Romero is guilty of murder or whether the fatal shooting of 22-year-old Jorge Luis Vielma in August 2009 was justified under Texas law.

[RPB]

That is interesting, as are the comments.

Thanks.

[surprise_i'm_armed]

After shooting the thief, the store clerk swept up
his shell casings and threw them and the broken beer
bottles into the trash.

His defense attorney probably echoes what Sammy Davis, Jr. used to say......"Ouch, babe!"

The clerk may have studied Texas statutes but he may not have studied hard enough.

SIA

[A-R]

After shooting the thief, the store clerk swept up
his shell casings and threw them and the broken beer
bottles into the trash.

His defense attorney probably echoes what Sammy Davis, Jr. used to say......"Ouch, babe!"

The clerk may have studied Texas statutes but he may not have studied hard enough.

SIA

He also apparently erased security camera video too .... so yeah, this guy has stink all over him. But as RPB alluded to above, many of the comments on the newspaper's web site are saying he should be convicted of murder because "it wasn't his store/his beer" or "he shot the guy in the back" ... plenty of people in this state don't understand deadly force laws at all.

[BTin]

I don't understand how he violated the statute? Does anybody know what the prosecutions actual case is? Covering up evidence does NOT mean he violated deadly force statutes. It might mean he impeded an investigation.

[baldeagle]

I don't understand how he violated the statute? Does anybody know what the prosecutions actual case is? Covering up evidence does NOT mean he violated deadly force statutes. It might mean he impeded an investigation.

Erasing the video tape indicates that he thought there was something wrong with what he did. That will work against him in the trial.

The way the penal code reads:

§ 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.

I think the question of his guilt or innocence will hang on whether or not he reasonably believed that the use of force other than deadly force would have exposed him to a substantial risk of death or serious bodily injury. The DA will probably argue that he could have used other than deadly force to stop the theft. Unfortunately for him, he's already proven that on video tape by brandishing the weapon without firing it and the actor left without the property. What made this incident different that he felt compelled to fire? Another question is, if the guy dropped the beer, why did he pursue him out of the store firing at him?

I think the case is questionable, and it's quite possible he will be convicted. From the brief facts presented in the article it appears that he escalated the violence by first showing the gun, the firing warning shots and finally decided to shoot someone.

That's a problem.

[surprise_i'm_armed]

Since this case is being tried in Travis County (Austin), I think the
chances of a liberal jury convicting him are much higher than if he
was one county to the north (Williamson County - Roundrock/Cedar Park).

austinrealtor - Thanks for also reminding all of us reading this thread that
the clerk had also deleted some of the relevant video evidence. People who
are sure of their actions would want the video to show the correctness of
their actions.

SIA

[Oldgringo]

Reading up on the law does not a lawyer make.

[A-R]

Here's story from today's paper, paints him even more as a vigilante in the eyes of many I'm sure.

http://www.statesman.com/news/local/def ... 79576.html" onclick="window.open(this.href);return false;

I think he's certainly guilty and will be punished for non-shooting aspects - tampering with evidence, etc. Whether he's guilty of something more for actually taking the shots will likely depend on a technical aspects of justification under Penal Code and the leanings of the jury.

Also, for what it's worth (not much in my opinion) the Statesman's reporter is blogging live from the courtroom today

http://www.statesman.com/blogs/content/ ... stin_legal" onclick="window.open(this.href);return false;

[A-R]

one of the posts on the Statesman's web site (can't even remember if it was today's story or yesterday now) made an interesting point:

If the shooter picked up the brass, threw away the beer, erased the tapes, and didn't call the cops ... is there any proof that the deceased stole anything at all other than the shooter's word? Seems this could be why the DA felt compelled to pursue these charges. I believe the accomplice in the get away car has told police (though I don't think he's testified yet) that he and his buddy were out to make a "beer run" which apparently has the slang meaning of shoplifting beer.

[zero4o3]

I don't understand how he violated the statute? Does anybody know what the prosecutions actual case is? Covering up evidence does NOT mean he violated deadly force statutes. It might mean he impeded an investigation.

Erasing the video tape indicates that he thought there was something wrong with what he did. That will work against him in the trial.

The way the penal code reads:

§ 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.

I think the question of his guilt or innocence will hang on whether or not he reasonably believed that the use of force other than deadly force would have exposed him to a substantial risk of death or serious bodily injury. The DA will probably argue that he could have used other than deadly force to stop the theft. Unfortunately for him, he's already proven that on video tape by brandishing the weapon without firing it and the actor left without the property . What made this incident different that he felt compelled to fire? Another question is, if the guy dropped the beer, why did he pursue him out of the store firing at him?

I think the case is questionable, and it's quite possible he will be convicted. From the brief facts presented in the article it appears that he escalated the violence by first showing the gun, the firing warning shots and finally decided to shoot someone.

That's a problem.

I would just like to point out, that bradnishing a firearm as a threat, IS deadly force, is it not?

[A-R]

I would just like to point out, that bradnishing a firearm as a threat, IS deadly force, is it not?

The word brandishing does not appear in Texas Penal Code (far as I know, haven't read every last word of the whole code yet).

TPC 9.02 covers "production of a weapon" without intent to fire it

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.

However, discharging a weapon without a legal defense on TPC chapter 9 can lead to municipal violations.

And, while this guy was not a CHL, for all us who are licensed there is the additional and highly confusing and controversial burden of TPC 46.035 (a) which makes intentional unconceal a crime (this is what is often termed "brandishing") adn (h) which ONLY makes an exception to (a) if you are authorized under to law to use deadly force, not merely to use force as explained in 9.04. These two statutes are obviously in conflict, as least as far as CHL holders are concerned, and this issue has been addressed previously in lengthy threads here on the forum as relates to a CHL holder who was convicted of violating 46.035 (a) .... but all the details escape me at the moment.

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9.

[baldeagle]

Here's story from today's paper, paints him even more as a vigilante in the eyes of many I'm sure.

http://www.statesman.com/news/local/def ... 79576.html" onclick="window.open(this.href);return false;

I think he's certainly guilty and will be punished for non-shooting aspects - tampering with evidence, etc. Whether he's guilty of something more for actually taking the shots will likely depend on a technical aspects of justification under Penal Code and the leanings of the jury.

Also, for what it's worth (not much in my opinion) the Statesman's reporter is blogging live from the courtroom today

http://www.statesman.com/blogs/content/ ... stin_legal" onclick="window.open(this.href);return false;

The story reads:

"Guy walked off with a 12-pack," Romero said in the interview, which was recorded on video and played in court Tuesday. "I saw him. \u2026 Shot one warning shot. He didn't drop it, so I shot him. That's it."

So where does the destroying the video tape charge come from? He cleaned up the spilt beer and empty cartridges and didn't call the police. That's strange behavior, for sure, but I don't see how they can convict him of murder unless they ignore the law. You can shoot a thief at night for stealing property, and that's exactly what he did. He claims he didn't call the police because they never respond to theft calls, but it's hard to believe that he wouldn't realize that if he shot a man he should call the police. Despite that behavior, though, he acted within the law with regard to the shooting.

EDIT: After reading the blog post, they have video that shows the man stealing the beer and shows the defendant running out of the store after him. The defendant claims to have fired sixteen times, but the dead man was hit once. Then his "friend" and fellow criminal drove the car to East Austin and abandoned the car with him in it instead of taking him to the hospital. I think the "friend" is guilty of the murder, and the defendant is guilty, at the most, of tampering with evidence. But I wouldn't even find him guilty of that charge.

[philip964]

No place but Austin. Doesn't matter what the law says, they have their own idea of what it means. This is the opposite of jury nullification.

That said. Did he realize he hit his target? Concerned about his job? I presume he did not call the police and hoped it would all go away? And he keeps a neat store.

Still it seems to fit the law.

It does not appear he was dealing drugs at the gas station and this was really a drug deal gone bad. Or he was earlier playing cards with the guy and the guy was leaving with all his winnings and our guy decided to get his money back.

Sounds like people were stealing beer and he decided to fight back.

Seems like he is not guilty, with the exception of tampering.

But lets see what the fair people of Austin think.

[A-R]

http://www.statesman.com/news/local/pro ... 81843.html" onclick="window.open(this.href);return false;

OK, Thursday's story clears up the video issue - he told police he deleted it, but they found it on the hard drive.

Romero faces up to life in prison on the murder charge. He is also charged with tampering with evidence, which carries a maximum 10-year sentence. That charge accuses him of concealing shell casings and surveillance video. Because he has never been convicted of a felony, Romero could receive probation if convicted.

Romero told police he deleted surveillance video taken during the shooting, but police recovered it from a store computer, and it was played for the jury Wednesday.

Jury deliberated for a few hours Wednesday, will continue tomorrow. Prosecutors plaed up the angry vigilante angle in closing arguments.