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I will be curious to see how this one plays out (sounds like he might have had a CHL, article wasn't sure if he did or not).........sounds like he was justified in defending himself given he was attacked with a knife. Once I started carrying and got my CHL I decided that road rage simply is not worth it, because it can put you in a situation like this one, just not worth it IMO.

http://www.click2houston.com/news/18369220/detail.html" onclick="window.open(this.href);return false;

HCSO: Road Rage Leads To Innocent Woman Being Shot In Store
By Carl Willis

POSTED: Sunday, December 28, 2008
UPDATED: 9:21 am CST December 28, 2008

HOUSTON -- A road rage incident ends with an innocent woman being shot inside a northwest Harris County store on Saturday, KPRC Local 2 reported.

Harris County sheriff's deputies said a newspaper deliveryman was there to deliver the daily paper, but issues that he had with another driver followed him into the 99 Cent Only store in the 13100 block of Veterans Memorial Drive.

Investigators said the deliveryman pulled into the parking lot to make a delivery at the store. The deliveryman told detectives that the man who had just exchanged words and gestures with him, followed him into the store and pulled a knife.

The deliveryman pulled a gun. He claims there was a struggle near the front of the store, and that is when the shot was fired.

A woman shopping in the store was wounded in the face. She was taken to a hospital for treatment. Her condition was not released.

Guadalupe Carlos was in the store at the time.

"I ran and hid," she said.

Most of the employees thought a robbery was in progress. Many of them ran to the back of the store after the shot rang out.

The deliveryman claimed he recently completed a course for a concealed weapons permit. Investigators have not been able to confirm that.

KPRC Local 2 Legal Analyst Brian Wice said the permit is not the issue here.

"In a situation like this, the law says that he has the right to defend himself against his assailant," Wice said. "But at the end of the day, if he happens to miss, intent follows that bullet and he's ultimately going to be charged with something."

A sheriff's office representative said no charges have been filed. The case has been referred to the Harris County Grand Jury.

Investigators said the 99 Cent Store has surveillance cameras and detectives are reviewing the video to confirm the delivery driver's story.

Detectives have not been able to find the other man involved in the shooting, but they said they were working several leads.

I am guessing he was in the process of applying for his CHL since the article said he had just recently completed the course. It sounds to me like he was in the process but had not received it yet.

I am not sure they can make the charges stick for assaulting the woman. Penal Code 9.05 says:

"RECKLESS INJURY OF INNOCENT THIRD PERSON. Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person."

To prove this, they would need to prove he was reckless about shooting, and I don't think they can meet that level of culpability. Of course, going in their favor would be his unlawfully carrying in the store if I am right about his not being a CHL yet. Even going through the course might help prove he was aware he might miss and hit another and disregarded this possibility.

KPRC Ch. 2 News wrote:HCSO: Road Rage Leads To Innocent Woman Being Shot In Store
By Carl Willis

POSTED: Sunday, December 28, 2008
UPDATED: 9:21 am CST December 28, 2008

HOUSTON --

. . .

KPRC Local 2 Legal Analyst Brian Wice said the permit is not the issue here.

"In a situation like this, the law says that he has the right to defend himself against his assailant," Wice said. "But at the end of the day, if he happens to miss, intent follows that bullet and he's ultimately going to be charged with something."


A sheriff's office representative said no charges have been filed. The case has been referred to the Harris County Grand Jury.

I know the legal concept Mr. Wice is referring to, but it doesn't apply in this setting. The doctrine of "transferred intent" would be more accurately described as transfer of "criminal" intent. It applies when the victim of a criminal act is someone other than the intended target. For example, if Mr. Thug shoots at Mr. Smith intending to murder him, but misses and kills Mrs. Smith instead, his "criminal intent" to murder Mr. Smith transfers to Mrs. Smith and Mr. Thug can be charged with murder. This is true even though he had no direct intent to kill Mrs. Smith.

In this case, the shooter was not engaged in criminal conduct, rather he was defending himself from a deadly attack and his actions were justified under TPC §9.32. However, TPC §9.05 states that the justification to shoot the armed attacker does not apply to the innocent third person who got shot in the face, and the actor can still be charged with reckless injuring the woman. (See below.) "Intentional" conduct is not required to get a conviction for reckless injury to an innocent person, so "transferred intent" is not required. Whether the delivery man could be or will be charged with reckless injury will apparently be determined by the Grand Jury, as the article expressly states that no charges have been filed and the case has already been referred to the Grand Jury.

Chas.

TPC §9.05 wrote:Sec. 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

Sounds like he also could be charged with UCW as he apparently didn't have a CHL in his possession, but was out of the vehicle in the store with the firearm. My guess is they will wait until the GJ makes their determination to see how to proceed with any other charges.

TPC §9.05 wrote:
Sec. 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

Thanks Charles. I had to reread this three times to figure out what you were saying. If I understand you correctly (after reading it a fourth time), even if you are justified to shoot, you better not miss and hit someone else?

Purplehood wrote:

TPC §9.05 wrote:
Sec. 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

Thanks Charles. I had to reread this three times to figure out what you were saying. If I understand you correctly (after reading it a fourth time), even if you are justified to shoot, you better not miss and hit someone else?

Yes. That is correct.

I heard if a bystander is killed during a bank robbery, they can charge the robbers with homicide even if the shot was fired by a guard. Can the guy with a knife be charged with something similar?

This incident just reinforces a decision I've already made.

I will never pull my weapon until and unless I've made the decision I need to shoot the BG either for my personal safety or the safety of a third party. When that happens, I will give the BG the command to halt and not move any closer. Any further movement towards me or the third party on his part will be interpreted as a hostile act and I will shoot.

I will not allow anyone whom I've identified as hostile close with me and attempt to wrestle my weapon from me.

In my time as a police officer, I've seen several occassions where a person pulled a weapon to defend themselves, thinking the presence of the weapon itself would be enough of a deterrent to defuse the situation. In many cases, this turns out badly for the victim. If I'm at the point where I need to pull a weapon for defense, I'm likely also at the point where I need to fire that weapon.

My uncle used to work for the Dallas County Coroner's Office and is also a former police officer. He and I actually discussed this over the Christmas holiday. He said in his time in law enforcement and with the coroner, he knows of many people who were killed by their own weapon because they pulled a weapon on their attacker but were afraid to shoot. In these cases, the attacker was able to close with the victim, take their weapon from them, and shoot them with it.

That won't be me. I still have the same mantra that I used every day I was a cop and went to work: "No matter what I have to do to make it happen, I'm coming home tonight."

Purplehood wrote:

TPC §9.05 wrote:
Sec. 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

Thanks Charles. I had to reread this three times to figure out what you were saying. If I understand you correctly (after reading it a fourth time), even if you are justified to shoot, you better not miss and hit someone else?

Not every unintended injury to a third person is the result of "reckless conduct." A full discussion of this area of the law is far too involved for a post and I spend a good bit of time on it in my Texas Self-Defense & Deadly Force Law Seminar. Nevertheless, look at the definitions below to get an idea of what types of conduct required to find someone's conduct was legally "reckless."

Chas.

TPC §6.03 wrote:Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Charles L. Cotton wrote:

Charles L. Cotton wrote: Thanks Charles. I had to reread this three times to figure out what you were saying. If I understand you correctly (after reading it a fourth time), even if you are justified to shoot, you better not miss and hit someone else?

Not every unintended injury to a third person is the result of "reckless conduct." A full discussion of this area of the law is far too involved for a post and I spend a good bit of time on it in my Texas Self-Defense & Deadly Force Law Seminar. Nevertheless, look at the definitions below to get an idea of what types of conduct required to find someone's conduct was legally "reckless."

Chas.

TPC §6.03 wrote:Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Until we see the tape, the determination of whether he acted recklessly or not is purely speculation. But let me throw out a question. The above definitions, submitted by Charles, says that if you know a significant risk, or outcome may result by you doing an action, and you CHOOSE to still engage in your action and that risk/outcome does happen, you have/are acting recklessly. So let me paint a scenario, similar to this one

You are in a convienence store in the candy isle looking for some sweets for your pregnant wife at home. In comes a bad guy waving a knive/gun. You feel your life is in danger and draw your weapon.

Scenario A.
There are people behind the bad guy (at the cash register), and you see them. You are aware that there is a risk of you missing the BG and shooting them. The BG turns and see you with the gun and makes a step in your direction. You start firing, and in the process drop the BG and the clerk at the register

Scenario B
There is nobody behind the BG. There are some people about 5-10ft to his right. In your mind you have a clean shot. The BG turns and see you with the gun and makes a step in your direction. You start firing, and in the process drop the BG and the clerk off to the side of the BG. After police have arrive, it was determined that one of your shots ricocheted off the hot dog roller and hit one of the innocent clerks.

Now, based on the two scenario's, and Charles post of the law, would Scenario A be considered acting recklessly, since the shooter was aware of other people possilbly getting shot, but still decided to do so. Would Scenario B not be considered reckless, because shooter felt in his mind that there was no risk of harm to those other people?


Looking back at the situation, the delivery driver should have just stayed in his vehicle where he was legally able to possess a weapon, and would have been under the protection of the Castle Doctrine. At the very least, he will get charged with illegal possession of a weapon (because he took it into the store), and quite possibly Assault with a Deadly weapon for shooting the other bystander.

BigBlueDodge wrote:Looking back at the situation, the delivery driver should have just stayed in his vehicle where he was legally able to possess a weapon

Maybe. But I think getting out of the truck to deliver the papers is part of the job description.

If the discharge really did happened during a struggle he will probably avoid criminal charges. He will still get sued though.

boomerang wrote:

BigBlueDodge wrote:Looking back at the situation, the delivery driver should have just stayed in his vehicle where he was legally able to possess a weapon

Maybe. But I think getting out of the truck to deliver the papers is part of the job description.

Well, that is obvious. But after you've ticked someone off on the road, and you see them follow you into a parking lot, it's probably a safe assumption that you have seriously ticked them off. And, at least to me, it might make a little sense to stay in the car for a bit and see what they were going to do (cell phone in hand ready to call police if an altercation breaks out).

BigBlueDodge wrote:But after you've ticked someone off on the road, and you see them follow you into a parking lot, it's probably a safe assumption that you have seriously ticked them off.

Which leads me to ask another question.

The deliveryman told detectives that the man who had just exchanged words and gestures with him, followed him into the store and pulled a knife.

Depending upon what, precisely, the deliveryman told detectives, is it possible that PC §9.32.(2) ("...did not provoke the person against whom the force was used...) might come into play in this case?

If the deliveryman admits--not saying he did; just a hypothetical--that he did, in fact, participate in the exchange of words and gestures with the other driver, could the issue of provocation be brought into this?

Kythas wrote:This incident just reinforces a decision I've already made.

I will never pull my weapon until and unless I've made the decision I need to shoot the BG either for my personal safety or the safety of a third party. When that happens, I will give the BG the command to halt and not move any closer. Any further movement towards me or the third party on his part will be interpreted as a hostile act and I will shoot.

I will not allow anyone whom I've identified as hostile close with me and attempt to wrestle my weapon from me.

In my time as a police officer, I've seen several occassions where a person pulled a weapon to defend themselves, thinking the presence of the weapon itself would be enough of a deterrent to defuse the situation. In many cases, this turns out badly for the victim. If I'm at the point where I need to pull a weapon for defense, I'm likely also at the point where I need to fire that weapon.

My uncle used to work for the Dallas County Coroner's Office and is also a former police officer. He and I actually discussed this over the Christmas holiday. He said in his time in law enforcement and with the coroner, he knows of many people who were killed by their own weapon because they pulled a weapon on their attacker but were afraid to shoot. In these cases, the attacker was able to close with the victim, take their weapon from them, and shoot them with it.

That won't be me. I still have the same mantra that I used every day I was a cop and went to work: "No matter what I have to do to make it happen, I'm coming home tonight."

Well said and whole heartedly !

The rest is pure conjecture leading to the courthouse and great expense - not to mention all of the forms that must be completed and submitted.