Nov. 15, 2007, 1:28AM
Shooting of theft suspects may test self-defense law
By RUTH RENDON and PEGGY O'HARE
Copyright 2007 Houston Chronicle
In a case legal experts say may "stretch the limits" of the state's self-defense laws, a Pasadena man shot and killed two suspected burglars during a confrontation as they attempted to flee his neighbor's property Wednesday afternoon.
In the minutes before the fatal shootings, Pasadena police said the man called 911 and reported that he had heard glass breaking next door and saw two men entering the home through a window. Still on the phone with police, the man, believed to be in his 70s, saw the suspects leaving from the back of the home.
"I'm getting my gun and going to stop them," the neighbor told the dispatcher during the 2 p.m. call, according to Vance Mitchell, a spokesman for Pasadena police.
"The dispatcher said, 'No, stay inside the house; officers are on the way.'
"Then you hear him rack the shotgun. The next sound the dispatcher heard was a boom. Then there was silence for a couple of seconds and then another boom."
After the shotgun blasts, the telephone line went dead.
But the neighbor called police again and told a dispatcher what he had done.
When police arrived moments later, they found two dead men in the 7400 block of Timberline Drive. One was across the street, and the other had collapsed two houses down behind a bank of mailboxes in the Village Grove East subdivision.
Up to the grand jury
Police said the neighbor, whose name was withheld Wednesday, appeared calm as he retraced his steps for police.
"He was well composed and knew what he was doing," Mitchell said. "He was protecting the neighbor's property."
It will be up to a Harris County grand jury to decide if the man committed a crime by opening fire, police said.
Wednesday's shooting "clearly is going to stretch the limits of the self-defense law," said defense attorney Tommy LaFon, who is also a former Harris County prosecutor.
If the absent homeowner tells police that he asked his neighbor to watch over his property, that could play in his favor, LaFon said.
"If the homeowner comes out and says, 'My neighbor had a greater right of possession than the people trying to break in,' that could put him (the gunman) in an ownership role," LaFon said.
The Texas Penal Code says a person can use force or deadly force to defend someone else's property if he reasonably believes he has a legal duty to do so or the property owner had requested his protection.
The neighbor, however, would have been on much safer legal ground if he had been trying to protect his own property, LaFon said.
Failed to stop
Capt. A.H. "Bud" Corbett said the neighbor told investigators that he knew the next-door residents were not home. The man told investigators that he encountered the pair when they exited his neighbor's through a gate leading to the front yard.
Corbett said the neighbor asked the men, one of which was carrying a white bag, to stop, but they did not.
The neighbor fired twice. One shot struck one of the suspected burglars in the chest, and the other was struck on the side.
The names of the two burglary suspects were not released Wednesday evening. The two men had documentation on them from Puerto Rico, Colombia and the Dominican Republic, police said.
Texas law allows people to use deadly force to protect their own property to stop an arson, burglary, robbery, theft or criminal mischief at night, or to prevent someone committing such a crime at night from escaping with the property.
But the person using deadly force must believe there is no other way to protect their belongings and must suspect that taking less drastic measures could expose themselves or others to serious danger.
A state senator who authored a law passed this year giving Texans stronger rights to defend themselves with deadly force said he did not believe the legislation he spearheaded would apply to the Pasadena case, based on the sketchy facts that have emerged so far.
Sen. Jeff Wentworth, a San Antonio Republican, said the so-called castle doctrine law he wrote doesn't apply to people protecting their neighbors' property.The measure "is not designed to have kind of a 'Law West of the Pecos' mentality or action," Wentworth said. "You're supposed to be able to defend your own home, your own family, in your house, your place of business or your motor vehicle."
A quiet neighborhood
On Wednesday afternoon, other residents were stunned to exit their homes to find police cars and yellow crime scene tape
Lacey Hernandez, who lives one block from the shooting, was home when she heard two loud pops, but couldn't identify the noise. A short time later, she was leaving to pick up her children from school when she noticed the police cars.
"I was in shock because I never heard a gunshot before," Hernandez said.
She described her neighborhood as very quiet. The subdivision is lined with two-story brick homes with trees in the front yards.
"We leave our garage door open," she said. "We let the kids run the streets just like nothing. Now they will not be playing in the streets."
ruth.rendon@chron.com
peggy.ohare@chron.com 
You know some of us don't read fully.
when it comes to property. I'm a letter of the law kinda guy 
, I don't flip flop on the issue like some others. I was just rehashing what others say all the time, who went and got a CHL and now are unsure of when they will use it.