WHEW! Weird experience on Saturday at HEB

[LaserTex]

Had to go get some groceries at HEB. I parked off to the side (not directly in front of the HEB doors but off to the side in the main FRONT parking lot - not on the side of the buiding.) I parked to the right of an old UHaul panel truck. A small car was on my passenger side.

Went in, got the stuff and was putting it in the passenger floorboard on my truck. The small car left and van was parked there. UHaul was still there. Point is, I couldn't see either direction other than along my truck - front to back. I was in the open door of my truck with the basket basically blocking me in (pulled cart in behind me as I opened the door.)

I had put 2 bags in the floorboard, turned back to get 2 more bags and saw my basket getting pulled back. I looked up and an older black man (obviously either homeless or without any way to do laundry) pulling my basket out from between the van and my truck. As I grabbed the front of the basket he says "give me some change and I'll give you your basket." He didn't sound threatening and he was smiling but I was a tad bit startled and just a wee bit upset (changed for 10 year old rule - I'm learning). I reply, "give me my basket or I'll shot you in the face." Didn't yell but was trying to sound intemidating. I never reached for nor did I pull my weapon (as that would have been wrong.) He turned and walked away quickly. I watched and he crossed the parking lot. I quickly finished putting my groceries in the truck, shut the door, locked the truck, pushed the cart to the holder thingie. Came back, got in my truck and drove out. As I crossed the main street in front of HEB, the man is standing on the corner with a "I am homeless and hungry. Please help. God bless you?" sign seeking contributions.

Now, a day later...I am wondering if I might have done wrong by threatening even if I made no indication at all that I would or could follow up on the threat. Did I mess up?

Doug edited to fix 10 year old rule and numerous spelling mistakes. sorry

[garcia946]

My opinion, you didnt do anything wrong. It could have been a setup to rob you, you know some people once they go to give some change away , they make off with your wallet/purse. Hate to say theses days you can never be too careful. You never pulled your firearm or went for it. So you gave no indication that you really had one besides form what you just said.Just a good thing that nothing happened. Just my thoughts....

[joe817]

Doug, don't try to second guess yourself my friend. You reacted accordingly. You did not know what you did not know.

Sometimes it's the people who make a demand then smile at you, that turns into a very ugly and potentially dangerous encounter. Smiling puts people at ease, throws them off guard, and relaxes them. And at the wrong time with the wrong person, it could be deadly.

Thank goodness that wasn't the case here. If he was begging for change, he did the wrong thing by pulling on the basket and making that veiled threat....the beginning first step of a confrontation, IMO.

I think you did the right thing.

[suthdj]

I think you did what any of us here would do, however I believe they could have charged you with assault or aggravated assault not saying it would stick. All the homeless man had to do was call police and say he was in fear for his life, putting you on the defense at which time you could say he's a crazy liar or explain your side, depending on the cop you may or may not go for a ride. and as everyone here says IANAL.

[Abraham]

The homeless man created the confrontation.

You responded and got back the groceries he high jacked and you paid for - his behavior was outrageous.

I would've used different wording to help avoid legal entanglement, but I would've used muscular language to be sure...

[03Lightningrocks]

Had to go get some groceries at HEB. I parked off to the side (not directly in front of the HEB doors but off to the side in the main FRONT parking lot - not on the side of the buiding.) I parked to the right of an old UHaul panel truck. A small car was on my passenger side.

Went in, got the stuff and was putting it in the passenger floorboard on my truck. The small car left and van was parked there. UHaul was still there. Point is, I couldn't see either direction other than along my truck - front to back. I was in the open door of my truck with the basket basically blocking me in (pulled cart in behind me as I opened the door.)

I had put 2 bags in the floorboard, turned back to get 2 more bags and saw my basket getting pulled back. I looked up and an older black man (obviously either homeless or without any way to do laundry) pulling my basket out from between the van and my truck. As I grabbed the front of the basket he says "give me some change and I'll give you your basket." He didn't sound threatening and he was smiling but I was a tad bit startled and just a wee bit upset (changed for 10 year old rule - I'm learning). I reply, "give me my basket or I'll shot you in the face." Didn't yell but was trying to sound intemidating. I never reached for nor did I pull my weapon (as that would have been wrong.) He turned and walked away quickly. I watched and he crossed the parking lot. I quickly finished putting my groceries in the truck, shut the door, locked the truck, pushed the cart to the holder thingie. Came back, got in my truck and drove out. As I crossed the main street in front of HEB, the man is standing on the corner with a "I am homeless and hungry. Please help. God bless you?" sign seeking contributions.

Now, a day later...I am wondering if I might have done wrong by threatening even if I made no indication at all that I would or could follow up on the threat. Did I mess up?

Doug edited to fix 10 year old rule and numerous spelling mistakes. sorry

I liked your wording and I believe you were within the law with your warning. I would love to read an opinion from someone more familiar with the law.

I was confronted/approached by a guy in Dallas a few weeks back. My daughter was with me and she was on the side of the truck he was approaching. She was all excited about where we were going and didn't hear me when I told her to stay in the truck. She jumps out and starts walking right toward this guy. I told him to back off. He hesitated and started to walk toward us again. I then moved my hand to a spot just over my weapon on my side and said, last warning, get away from us. He turned and walked away fast. meanwhile my happy go lucky daughter did not even notice a situation developing. She got to hear me rag on her for the next 10 minutes about staying alert to her surroundings.

Point is, I never actually said I was going to shoot his face...LOL...but I kind of insinuated it by my body movements....scary thing is, having my daughter between me and him was causing me to react more harshly than I would if she had not been walking right at this thug looking dude. PS...he was also really big...big as in muscular and tall...not fat and out of shape. he could have been a handful for me to wrestle to the ground.

[killerfly128]

Only thing I would have changed was the wording when you spoke to him. Instead of "i'll shoot you in the middle of your face" I would most likely have said something more like "I would recommend you let go of the basket and walk away" If that didn't resolve the situation than I would likely have escalated the phrase to "again, I would walk away while you still can" Had the guy made any advancement after the first challenge he would have had a life changing experience courtesy of Heckler and Koch.

Just my meager opinion, take it with a grain of salt.

[KD5NRH]

Now, a day later...I am wondering if I might have done wrong by threatening even if I made no indication at all that I would or could follow up on the threat. Did I mess up?

ISTR some case law that essentially established that a conditional threat with a reasonable condition (i.e. something that you have the right to demand, like not stealing your property) is not actually a threat, regardless of the level of the "threatened" action. (Though actually displaying the gun would still be an intentional failure to conceal.) Not sure if it was anything that would apply to Texas. Maybe one of the lawyers here can confirm or deny that.

Also, I'd definitely have talked to the manager about it: most businesses don't care for panhandlers on their property, and a criminal trespass warning with supporting documentation would go a long way to help the case of anyone who does have to go hands-on with the guy in the future.

[longtooth]

You definately threatened him w/ deadly force. You cannot threaten deadly force if you are not justified in using deadly force. If he had called the police w/ your license # would have a lot of ?s to answer. Should have reached for your cell phone & told him to give you your buggy back or you were calling the police. THen you would be the complaintant.

[KD5NRH]

Now, a day later...I am wondering if I might have done wrong by threatening even if I made no indication at all that I would or could follow up on the threat. Did I mess up?

ISTR some case law that essentially established that a conditional threat with a reasonable condition (i.e. something that you have the right to demand, like not stealing your property) is not actually a threat, regardless of the level of the "threatened" action.

Found some supporting documentation:
The encyclopedic digest of Texas Reports (Criminal cases) Vol 6, edited by Thomas Johnson Michie
"A threat to kill another, unless the party threatened would do or leave undone something which the party threatening had no right to require, is, in its legal effect, an unqualified threat. Hence, where the condition in the threat of defendant required something which, under the circumstances, he had no right to acquire, it amounted, in legal effect, to a positive threat to take life. McFain v. State, 41 Tex. 385, 390; Thrasher v. State, 3 Tex. Cr. App. 281; Haynie v. State, 2 Tex. Cr. App. 168."

It can safely be established that LaserTex was not requiring anything that he had no right to require, (that the other person not steal his groceries) so we can infer from this that the "unqualified threat" doesn't exist.

On the next page:
"Seriousness of Intention.—To constitute the offense of seriously threatening to take the life of another, it is not only necessary that the threat to take life be made, but it must also be seriously made. The test of the guilt or innocence of the defendant is whether the threat was seriously made, or was merely idle and with no intent of executing the same. McFain v. State, 41 Tex. 385; Longley r. State, 43 Tex. 490, 493; Buie v. State,

1 Tex. Cr. App. 58; Haynie r. State,

2 lex. Cr. App. 168, 176; March v. State, 3 Tex. Cr. App. 107; Vincent v. State, 3 Tex. Cr. App. 678; VVilkerson v. State (Cr. App.), 30 S. W. 807.

A party can not seriously threaten to take the life of another unless he has made up his mind to kill him, and has the will and intention to kill him, both concurring and formed in the mind at the time the threat is made. It is unreasonable and utterly inconsistent' to hold that a party can be serious in saying he intended to do a thing, and yet, at the same time, that that was not the thing he intended to do. Haynie v. State, 2 Tex. Cr. App. 168, 176."

Since LaserTex did not have, nor express, the will and intention to kill unless and until the other failed to meet his reasonable demand, (and presumably not even then, unless the other escalated to robbery or other DF-justifying actions) one can easily argue that his threat was not serious by the definition above. As I'm reading it, this has also been used under California law to show that the threat was not imminent, in that it was not "ready to occur" until the condition was met or unmet.

Now, I'm not a lawyer, but if I could track this down in a few minutes, I'd expect that any lawyer worth paying for could come up with much better arguments by the time a court date arrived.

[LaserTex]

Longtooth - that was what I was thinking as well. It was all very fast and I was startled to say the least. Thanks for answering folks! I do appreciate the help. I feel that I am pretty lucky it didn't get weirder!

Doug

[DoubleJ]

you down with OCC? Yeah, you know me.


















*I apologize for the song reference. OCC= Oleoresin Capsicum Carry*

[frazzled]

Pulling out a pepper spray and pointing it at someone is assault.

Saying something but not brandishing is a completely different fact pattern.

[DoubleJ]

well, the indigent bum *did* begin the process of theft/robbery.