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Return to “If you can't shoot it, don't show it!”

by Kyle Brown
Sat Dec 17, 2005 6:38 am
Forum: General Texas CHL Discussion
Topic: If you can't shoot it, don't show it!
Replies: 68
Views: 18327

Charles L. Cotton wrote:Kyle:
I think I understand your contention about §9.04. As I read your post, it is your position that §9.04 will allow you to pull a gun on someone, even if they don’t pose an immediate threat of death or seriously bodily injury, so long as you just want to scare them; you can’t shoot them.

The problem with this argument is that TPC §9.04 doesn’t trump the express language in TPC §46.035(a) that states a CHL can show his pistol only if he would be justified in using deadly force, not merely threatening deadly force. TPC §9.04 deals only with threats.

I agree that without having the briefs, we don’t know precisely how McDermott’s argument regarding TPC§9.04 was presented to the appellate court. However, we know it was McDermott’s third point of error and that it was rejected by the Court. Here is the Court’s language:
In his third issue, appellant argues the trial court erred in refusing his requested instruction on threats as justifiable force. The instruction sought by appellant provides: 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. Tex. Pen. Code Ann. § 9.04 (Vernon 2003).

This provision does not apply to appellant's case. Under the specific statute under which appellant was convicted, appellant was justified in displaying his weapon only if he were justified in using deadly force. See Tex. Pen. Code Ann. § 43.065(b) (Vernon 2003). Whether appellant actually used deadly force is immaterial. We resolve the third issue against appellant.
Edited to delete the hypothetical scenario. It was too general and left too many variables unaddressed. (Yeah I know; more lawyer-speak.)

Regards,
Chas.
I would just add that it is equally important to know if or how TPC §9.31 was argued in MCDERMOTT because it my contention that §9.04 will not stand alone, it must be supported by §9.31. The actor in §9.04 MUST be justified in the use of force.

It seems as if MCDERMOTT's entire self defense argument was rejected at trial. If that is true, and given the facts as we know them in MCDERMOTT, we cannot be certain that a valid self defense argument would not "trump" the requirement to conceal in TPC §46.035.
by Kyle Brown
Fri Dec 16, 2005 9:35 am
Forum: General Texas CHL Discussion
Topic: If you can't shoot it, don't show it!
Replies: 68
Views: 18327

Charles L. Cotton wrote:Kyle:

If I understand your contention, you argue that if a CHL is justified in using any force (not just deadly force) against another person, then TPC §9.04 permits him to display (unconceal) his handgun. The Court expressly rejected this argument when it was made by McDermott. There seems to be some confusion about the jury instructions requested and those actually submitted to the jury.
Charles, as I understand it, the law recognizes and justifies (1) the use of force and (2) the use of deadly force. In your response, it seems as if you are not acknowledging the difference between the two. Specifically, in stating my contention, it does not appear you agree it is possible to use force but not deadly force.

In light of that, let me make another attempt at stacking my blocks.

It is my contention that TPC §9.04 permits the threat of force (by any person, not just a CHL holder) in those instances where the actor would be justified in the use of force (but not deadly force). One must examine the requirements of TPC §9.31 in order to determine if the actor is justified in the use of force. If the use of force (not deadly force) is justified in accordance with TPC §9.31, the actor may threaten to use force by and through the production of a weapon (not just a concealed handgun) PROVIDED (here comes the really big hickey) the actor’s purpose is limited to creating an apprehension that the actor will use deadly force if necessary.

In reading MCDERMOTT, I cannot determine if or how TPC §9.04 was argued and I certainly cannot determine if my argument (as presented above) was made and rejected. FWIW, the way I read MCDERMOTT, it does not appear he would have been justified in the threat of force (TPC §9.04) and/or the use of force (TPC §9.31).

Thanks,
Kyle
by Kyle Brown
Thu Dec 15, 2005 10:40 am
Forum: General Texas CHL Discussion
Topic: If you can't shoot it, don't show it!
Replies: 68
Views: 18327

Charles L. Cotton wrote:
Kyle Brown wrote: It appears that 9.04 does in fact establish the justification of using a threat. Given that 9.04 is titled “Threats As Justifiable Force� and given that the wording in the first sentence states, “The threat of force is justified when the use of force is justified by this chapter� then it would appear that an explanation of 9.04 should be approached by referencing TPC § 9.31 Self Defense which states in part that a person is justified in using force against another when and to the degree he reasonably believes the force is necessary to protect himself against the other’s use or attempted use of unlawful force.
Kyle:

The Penal Code is often confusing, especially concerning the Justification provisions. Determining if/when you can act is a building-block process.

Starting with TPC § 9.04, we learn that we can use threats to use force, but only if we would have been justified in the actual use of force. Here is §9.04: THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter.

So we have to look to other TPC sections to see when we are justified in using force, which in our example is deadly force. The first stop is TPC §9.31 - Self-Defense. This section authorizes us to use force to protect ourselves against another’s use or attempted use of unlawful force. However, this authorization does not extend to the use of deadly force unless requirements of §§9.32, 9.33 or 9.34 are met, as expressly stated in §9.31(d) See below.

§ 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.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

According to TPC §9.32 - Deadly Force In Defense of Person, in order to use deadly force, we must first meet the requirement of §9.31, then me must meet the requires §9.32. One of the key requirements is that we are acting to prevent someone from using unlawful deadly force against us. See below.

§ 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another: (1) if he would be justified in using force against the other under Section 9.31; (2) if a reasonable person in the actor's situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other's use or attempted use of unlawful deadly force; or . . .

So we cannot actually use deadly force in response to a threat or attempted use of unlawful force by another person, unless the force they threaten or attempt to use is deadly force. If we are not authorized to use deadly force, then we are not authorized to threaten the use of deadly force. This is expressly stated in TPC §9.04. See above.

I believe the provision in §9.04 stating that the threat of using deadly force is not an actual use of deadly force comes into play when the actor is not justified in making the threat. That is, if you pull a gun on someone but do not shoot them or attempt to shoot them, and are not justified in doing so, then you have committed a crime, but you have not used or attempted to use deadly force. Thus you could not be charged with a crime that has the use or attempted use of deadly force as an element of the crime. There may be other situations where this becomes relevant, but I don’t practice criminal law and I’m not sure of the scope of this provision.

There are other justifications for the use of deadly force set out on TPC §§9.33 and 9.34, but they are not relevent for this discussion.

This gives an idea what law students go through on criminal law exams! You have to start stacking the blocks and see if you have all you need for a charge or defense.

Regards,
Chas.


Hey Charles, let me make another attempt to explain my position in re 9.04.

No reference is made to 9.04 in SPIELMAN.

In MCDERMOTT, the appellant complained the trial court reversibly erred by refusing to give instructions on self-defense and the defenses of necessity and threats as justifiable force. In it’s holding, the court noted that the charge included an instruction on "deadly force," and that McDermott did not complain the “deadly force� instruction was incorrect. Absent that complaint, the court held 9.04 did not apply to appellant’s case because the statute under which appellant was convicted would allow the display of the weapon only if appellant were justified in using deadly force. It is not clear why the appellant made no such complaint. It would be interesting to read the briefs in this case. They might give us some idea of if/how 9.04 was argued in trial.

After reading the two cases, it seemed likely that neither the trial court nor the court of appeals considered 9.04 which explains why I was confused by the title of your thread and the comment you made wherein you stated that while 9.04 does state that a threat of deadly force does not constitute the use of deadly force, it does not establish the justification for using a threat.

Now, this is how I would stack my blocks in a general discussion in re 9.04.

9.31 Self-Defense provides justification with exception for use of 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.

As I understand it, force is defined as that resistance/action which alone will not cause death or serious bodily injury. Deadly force is that force that is intended or known by the actor to cause, or, in the manner of its use or intended use, is capable of causing death or serious bodily injury.

So, in those cases where force is justified then 9.04 may be justified to the extent that the threat to cause death or serious bodily injury (deadly force) by and through the production of a weapon is justified provided the actor’s purpose is limited to creating the apprehension that he (the actor) will use deadly force if necessary.

Therefore, if deadly force is not used, then any argument against the production of the weapon (9.04) supported by requirements provided in 9.31 would be invalid because 9.04 states that the production of the weapon to create the apprehension that the actor will use deadly force is not the use of deadly force.

On the other hand, if the actor produces the weapon in accordance with 9.04 and subsequently uses deadly force, then 9.22 Necessity and 9.32 Deadly Force In Defense Of A Person would more than likely come into play.

Hopefully, this will explain why I stated that it appears 9.04 does in fact establish the justification of using a threat.

While I generally agree that it is not a good idea to produce the weapon unless the use of deadly force is justified, I argue that such production is supported within the law.

Furthermore, I still maintain that the real issue with 9.04 lies in the requirement that the actor’s purpose in producing the weapon is limited to creating the apprehension that the actor will use deadly force if necessary.

Thanks for your patience.
Kyle
by Kyle Brown
Wed Dec 14, 2005 9:40 am
Forum: General Texas CHL Discussion
Topic: If you can't shoot it, don't show it!
Replies: 68
Views: 18327

Charles L. Cotton wrote:GrillKing:

Sorry for the long attorney-speak response!

Remember the cases quoted deal with a violation of §46.035(a), i.e. failure to conceal a handgun, not the use or threat to use deadly force. We are justified in displaying (unconcealing) our handgun only when we would have been justified in using deadly force. Even then, it's a defense to prosecution, meaning you can be arrested and go to trial where you will be able to assert this defense.

Here is the language from Penal Code 46.035(h):

(h) It is a defense to prosecution under Subsection (a) that
the actor, at the time of the commission of the offense, displayed
the handgun under circumstances in which the actor would have been
justified in the use of deadly force under Chapter 9.

As to threats as justifiable force under §9.04, this Section doesn’t authorize the threat of deadly force in response to a threat to use non-deadly force against you. This Section still requires that the actual use of force be justified, before the threat of force is justified. The Section does go on to state that a threat of deadly force does not constitute the use of deadly force, but that sentence does not establish the justification for using a threat.

Also, §9.32 establishes the requirements for using deadly force in defense of a person and a threat of non-deadly force being used against you is not one of the justifications.

I hope this helps. I've posted Sections 9.04 and 9.32 below.

Regards,
Chas.

Section 9.04 reads:

§ 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.

Section 9.32 reads:

§ 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
(1) if he would be justified in using force against the other under Section 9.31;

(2) if a reasonable person in the actor's situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor.
Charles, I have a question. If I understand your response to GrillKing correctly, you reference TPC § 9.32 Deadly Force In Defense Of a Person in explanation that TPC § 9.04 Threats As Justifiable Force does not authorize the threat of deadly force in response to a threat to use non-deadly force against you. You then argue that while 9.04 does state that a threat of deadly force does not constitute the use of deadly force, 9.04 does not establish the justification of using a threat.

It appears that 9.04 does in fact establish the justification of using a threat. Given that 9.04 is titled “Threats As Justifiable Force� and given that the wording in the first sentence states, “The threat of force is justified when the use of force is justified by this chapter� then it would appear that an explanation of 9.04 should be approached by referencing TPC § 9.31 Self Defense which states in part that a person is justified in using force against another when and to the degree he reasonably believes the force is necessary to protect himself against the other’s use or attempted use of unlawful force.

It seems to me that the real issue with 9.04 lies in the requirement that the actor’s purpose in producing the weapon is limited to creating the apprehension that the actor will use deadly force if necessary.

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