My Bad...posted on the Walmart thread here:
http://www.texaschlforum.com/viewtopic. ... 1&start=30" onclick="window.open(this.href);return false;
Too little sleep and to much time on duty, things are starting to run together
...but you did
That said I don't believe the law was broken. If I were defending him (a disaster to be sure) I would cite:
§ 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.
AND
Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
(3) if the actor consented to the exact force used or attempted by the other;
(4) if the actor provoked the other's use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter;* and
I would then describe the encounter as, "Returning to their vehicle in a remote parking location at night when the OP (who was with his GF) noticed two gentlemen apparently concealing themselves in a darkened area. These two men immediately proceeded in their direction with a determined demeanor. The OP being concerned first for the safety of his GF placed himself between her and the approaching men. The OP then challenged in a loud voice, 'What do you want?' letting the men know he saw them and wanted to know their intentions. They refused to respond and continue unabated toward the OP and his girlfriend. Being isolated and outnumbered with the approaching men coming straight on and closing rapidly the OP produced his weapon and activated the installed laser sight with the intent of letting the approaching men know he was armed and had a solution on their person. At this point the two men showed their hands and speaking to one another turned and retreated. The OP immediately disengaged and called for police."
He did not approach them, he did not initiate contact. The other guys decided
at that moment to come out from the cover of shadow and approach directly toward the OP and his GF. They didn't respond to his verbal challenge, wave or respond except to keep coming at him. He had limited alternatives and a rapidly diminishing window of opportunity to employ those alternatives. He also immediately disengaged, called LEO and remained at the scene until their arrival. I am sorry, I simply cannot see how he violated the la w. I can see that if he had hollered, "Stop! Don't make me shoot you." or something equally unambiguous it would have gone better should the unthinkable had happened.
Now as I read PC Chapter 22 a simple assault can occur with the "intentional" or knowing threat of imminent bodily harm but for an Aggravated Assault to occur:
Sec. 22.02. AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
He didn't "intentionally or knowingly" seek to harm these guys and he didn't "intentionally or knowingly" set out to threaten them. It was their encroachment and other exigent circumstances that provoked the OP. Given the "reasonableness" standard and justification under PC 9.04 how you can assert he committed aggravated assault, your inclination to detain him aside? Had he been detained then ultimately the judge, grand jury or trial jury would decide his guilt. I think the conclusion in this case was so obvious the LEOs on location did not see the need.
I understand that some have concluded these were poor photosensitive individuals who were just minding their business, avoiding overexposure to the halo of street lamps until the OP "provoked" their relocation. I wish they had decided to respond or otherwise acknowledge the OP rather than come directly at him and ignore his verbal challenges...that could have avoided a lot of misunderstanding.
Jtran987 did fine.
???
