Texas justifiable homicides rise with 'Castle Doctrine'

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For $20.29 stolen from the tip jar of a Houston taco truck, 24-year-old Benito Pantoja was shot with a .357 Colt and killed.

The owner of Tacos Del Indio, parked near the Ship Channel, ran him down as he tried to escape with the cash, fired into the getaway car and hit Pantoja in the back.

The death was ruled a justifiable homicide, one of 48 involving citizens across Texas in 2010, with 27 in Houston, according to a Houston Chronicle analysis of FBI data.

Since Texas in 2007 expanded its "Castle Doctrine" - in some states known as "Stand Your Ground" - justifiable killings have steadily increased, from 32 statewide in 2006 to 48 in the 2010, the Chronicle's review shows.

Texas law always has allowed deadly force against intruders and thieves to protect lives and property, but where it once required a duty to try to retreat if possible when facing imminent danger, it no longer does.

"Traditionally, if you felt your life was threatened, you could use deadly force to protect yourself, except if you could get away safely where nobody got hurt, then you were required to do that," said Sandra Thompson, a professor at the University of Houston Law Center.

The law always has allowed deadly force to protect your property, even $20.29 from a tip jar.

"Even if somebody is just stealing from your front yard, and they are not threatening anybody, (and) there's no threat of being hurt at all, you can kill them, if it's reasonably necessary protecting your property," Thompson added.

Killings by civilians long have piqued national outcries over the use of deadly force and whether it was necessary - or feigned to be necessary - to protect lives or property. Few have reached the fevered pitch of former neighborhood watch volunteer George Zimmerman's killing of Trayvon Martin, an unarmed Florida teenager as he walked to his cousin's house. Zimmerman, who was indicted, claims he was in fear for his life.

A range of emotions

About half of the killings in Texas occurred in the greater Houston area, the state's largest metropolis. Dallas, with nine, and San Antonio, with eight, also showed increases.

"Things police can't shoot you for, your fellow citizens can," said Marsha McCartney of the Texas Chapter of the Brady Campaign to Prevent Gun Violence. "This is just appalling."

Clashes with adrenaline flowing and deadly consequences leave a range of emotions in the aftermath; relatives of the dead question the bloodshed; those who did the killing wrestle with remorse, even if they had the right to use deadly force.

"I hate that the guy's life was taken, I really do," said Rodrick Batiste, a longshoreman who bolted awake when someone tripped his burglar alarm by kicking in the French doors to his backyard. "I try and tell people with the 'You should have shot him again' attitude, that it is not really what you think. If you haven't been there before, you don't know what type of feelings overtake you.

"It changed me. There is nothing cool about taking somebody's life."

On a dark winter morning, a naked Batiste grabbed his .38-caliber revolver from his bedside and charged to confront the home invader who was trying to steal his flat-screen television.

"Although I have all kinds of remorse, that doesn't change the world," Batiste said. "This type (of) thing is still out there, and you should be able to defend yourself and your property without the risk of turning into a victim, if not by the person trying to victimize you, then by the law."

Texas law goes further than other states in allowing deadly force not only to protect property, but also to stop rape, arson, burglary, robbery, theft at night and criminal mischief at night.

Castle Doctrine

A grand jury in Lavaca County in June declined to indict a 5-year-old girl's father who found a man molesting her behind a barn in Shiner - and beat him to death. The father, the grand jury determined, was within his right to use deadly force to protect his daughter.

In Houston early Friday, a 19-year-old convenience store clerk shot and killed a 52-year-old man who stole beer, according to police. The matter remains under investigation, but the clerk was not arrested.

In Texas and elsewhere, each time someone is shot dead with a claim of self-defense, a grand jury must decide if an indictment is warranted. However, deliberations by grand juries are secret and the basis of their decisions is seldom public.

The Chronicle also examined times of death, gender and race of both the shooters and the dead. Citizen shootings most often happen after dark, and involve a male shooting a handgun during a home invasion.

The person doing the killing is most often a minority, as is the person killed, according to the Chronicle analysis.

But the exchanges play out in an array of settings: From the taco truck parked on the corner of a street packed with tiny cantinas to the outside of a liquor store in Montrose, from the bedroom of a one-story house in northwest Houston to a gentrifying neighborhood northeast of downtown where townhouses tower over decaying shacks.

"The Castle Doctrine is now the law, and this is Texas," said Harris County District Attorney Pat Lykos. "If someone is invading your home or your place of business, you should not be obligated to retreat.

"At the same time, people should never seek a confrontation," she said.

'A losing situation'

Mark Brown had just returned home from a morning trip to the grocery store when he realized his home was being burglarized. He grabbed a 12-gauge shotgun, headed to the bedroom, where he saw his rings, watches, cuff links and bracelets piled in the middle of a bed. He heard a noise in the closet behind the closed door and fired one shot. As the thief pushed the door open, Brown fired off more blasts, killing the man. Holes were blown in the wall behind the body, blood splattered on clothes in the closet.

"It was a horrible experience, I just want to put it behind me," Brown said. "I hated it happened. For him, it wasn't worth it. For me, it wasn't worth it - a losing situation for both people."

Brown even had a note by his back windows warning would-be burglars. "My neighborhood was getting rough. I was giving people a warning that whatever was going to happen, was going to happen," he said.

Emotions also run raw for those who lose family.

"Nobody knows what happened because my son has already gone," said Edyth Moss, the mother of David McDaniel, who was shot and killed by a cab driver during a fight touched off by an argument over change.

"But they know he didn't have a weapon. He didn't have a knife. He didn't have a gun."

Texas Rep. Garnet Coleman is among a handful of lawmakers who voted against the Castle Law amendment back in 2007. He calls it the "shoot-first-and-ask-questions-later" law.

"Some people call them 'justifiable homicide,' but it's not justifiable, it's the law (that) made something that's wrong legal," Coleman said.

Batiste, who shot the man who broke into his townhouse, said he's prayed a lot about what happened and has considered reaching out to the dead man's family.

"I'd just tell them I am sorry for their loss, I didn't mean for it to go that way," he said. "I did want to stop him from doing what he was doing. I did not mean to take his life."

yang.wang@chron.comdane.schiller@chron.com