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This thread has been inactive since Dec. 19th, so people may have forgotten the very narrow issues presented. Remember, the discussion centers on two issues: 1) whether TPC §9.04 authorizes a person (other than a LEO) to threaten the use of deadly force by the production of a weapon when they would not be justified in actually using deadly force; and if so 2) does TPC §46.035(a) subject a CHL holder to prosecution for intentionally failing to conceal his handgun if they did so. (The McDermott case upheld the conviction of a CHL under these circumstances.)

Just to make sure there is no confusion, if you would be justified in using deadly force to thwart an attack, then you are justified in threatening the use of deadly force by pulling your gun on someone. Just because you can shoot someone, you doesn't mean you have to!

Back to the scope of TPC §9.04. Between Kyle and I, we have spoken to criminal defense attorneys, prosecutors for various DA’s offices, police officers, judges and a law school professor that teaches criminal law. Everyone Kyle talked with believes TPC §9.04 authorizes the threat of deadly force even when the use of deadly force would not be lawful, if the other requirements of §9.04 were met. (Let’s call this the “broad view.�) The people I’ve talked with fall on both sides of the interpretation. Some accept the “broad view,� while others contend that TPC §9.04 only authorizes the threat of force equal to the degree of force you would be authorized to use; i.e. you can’t threaten deadly force unless you can use deadly force. We’ll call this the “narrow view.�

To complicate matters further, I just received a return telephone call from a lady who is an attorney on staff with the DPS in Austin. She apparently teaches the law portion of the CHL Instructor Certification and re-certification course. She believes the “narrow view� of TPC §9.04 is correct.

I’ve spoken with a lot of very knowledgeable people who have differing opinions on the scope of TPC §9.04. However, if I were forced to choose one on whom to rely, I would have to choose the law school professor. As a law professor, he must remain current on issues such as this one and the professor I spoke with said the “broad view� is very common in the U.S. He also said the “broad view� is codified in the Model Penal Code. That said, he also concedes it’s an open question in Texas, since there is no case law on point, but the express language in TPC §9.04 appears to adopt the “broad view.�

All throughout my deliberations on this issue, I keep coming back to the two hypothetical scenarios txinvestigator and I presented. Mine was the slap in the face in the restaurant and his was the gang members following my wife and I in a theater parking lot. I have presented these scenarios to everyone I have spoken with and we all agree that these polar opposites are troublesome to reconcile. The restaurant scenario was presented to show the absurd result that could occur with adoption of the “broad view� of TPC §9.04 while the gang members in the parking lot reveal a reasonable application of the “broad view.�

The only way I can reconcile the potential abuse of TPC §9.04 with its useful application is much like txinvestigator did, i.e. by incorporating the requirements of TPC §9.31 (force). That is, §9.31 will allow the use force “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. In the restaurant scenario, a person could not reasonably believe it was necessary to pull a gun to keep a woman from slapping you. Conversely, in the theater parking lot scenario, a person could reasonably believe it was necessary to reveal or even present a pistol to thwart an apparent stalking or impending assault. Beware! This is merely my evaluation and attempt to reconcile differing views on the scope of TPC §9.04. Don’t try to rely upon it!

However, this academic discussion of the scope of TPC §9.04 is even more complicated when we introduce TPC §46.035(a) - Intentional failure to conceal and the McDermott case. The statute and the McDermott opinion expressly state that you are justified in intentionally failing to conceal when you are justified in actually using deadly force.

These few facts are certain: 1) there is no case law in Texas interpreting the scope of TPC §9.04; 2) there is no agreement among experts in the field on the scope of TPC 9.04; 3) it is common in the U.S. for state penal codes to allow the threat of deadly force when the use of deadly force is not authorized, so long as the sole motive for the threat is to cause apprehension that you will use deadly force if necessary; 4) TPC §46.035(a) makes it an offense to intentionally fail to conceal your handgun, unless you are authorized to actually use (not merely threaten) deadly force; and 5) the McDermott Court rejected a CHL's attempted reliance on TPC §9.04.

Whatever the Courts ultimately determine concerning the scope of TPC §9.04, TPC 46.035(a) needs to be amended to include the justification found in either TPC §§ 9.04 (threats), 9.31 (force) or 9.32 (deadly force).

Regards,
Chas.

UPDATE:

Kyle and I have been sending PM's and each have been trying to get more information and opinions on the scope of TPC §9.04. Here is an update of our efforts.

Kyle has spoken to ADA's, law enforcement personnel and DPS attorneys who opine that TPC §9.04 sufficiently broad as to allow a person to threaten the use of deadly force, even if the use of deadly force would not be justified, so long as the person's motive was solely to create apprehension in the other person that deadly force would be used, if it became necessary.

I have spoken to criminal defense attorneys and an ADA in the Galveston County DA's office who had a "round table" with his fellow prosecutors. They believe that the degree of force you can threaten is equal only to the degree of force you would be justified is using. In short, if you can't use deadly force, you can't threaten deadly force, regardless of your motive.

I have spoken with a criminal law professor with the South Texas College of Law about the scope of §9.04. He said there is no case law on this issue in Texas (I know, I looked myself), but it is common in the U.S. for penal codes to allow the threat of deadly force to defuse a situation, even when the use of deadly force would not be justified. He also said there was such a provision in the Model Penal Code (this is a guideline, but has no authority) that allows such threats. I’m going to try to find it when I have time.

I believe Kyle is correct and §9.04 is broader than I first believed, but we won't know for sure, until there is additional case law on this specific portion of §9.04. So, it looks like the McDermott case may have been wrongfully decided. Unfortunately it's still the law until either the TPC is changed with regard to §46.035(a) [Intentional failure to conceal], or another case works it's way through the appellate courts to the Texas Court of Criminal Appeals. Here's another item for my proposed 2007 Texas Legislative Agenda!

Caveat: The fact that Galveston County DA's office views TPC §9.04 narrowly is an indication that other DA's may do so as well, leaving a CHL or anyone else subject to prosecution, even of 46.035(a) is amended.

Regards,
Chas.

I have been doing some research on this issue and have talked with a couple of attorneys and an Assist. DA with a county in my area. (I promised not to ID anyone or the agency.) This thing is very convoluted, to say the least. By no means have I come to a final opinion on the scope of 9.04, or whether it controls over 46.035(a) & (h). However, at this stage of my research it looks like there may be a conflict within the Penal Code; i.e. §§46.035(a) & (h) and §9.04. It also appears that the McDermott case may have been wrongfully decided. It was not appealed to the Court of Criminal Appeals (the highest appellate court in Texas for criminal cases).

We on TexasCHLforum are not the only folks to have a wide divergence of opinion on this issue. The ADA with whom I spoke said he and his colleagues are discussing it in an attempt to come to a consensus. He promised to call me when they do, or if they fail to reach a consensus.

So, there seem to be opinions falling on both sides of this issue. I’ll update when I get more information.

Regards,
Chas.

txinvestigator:

Based upon your scenario, I believe you are probably justified in using deadly force. You have more than verbal provocation. In fact the scenario you described is very close to many I have used, gradually adding to the scenario without the assailants actually pulling a weapon. You have all the elements: disparity in numbers, pursuit (tracking your moves), duty to protect a family member, long-rider coats during the summer in Dallas (commonly used to conceal long guns), and verbal threats when you warn them to stay away (sign of aggressive intent). With all of these facts combined, I think a reasonable person would believe their life and/or the life of their wife was in danger.

Let's take the 9.04 scenario to the other extreme. I'll say up front that this scenario is full of unaddressed variables, but it will suffice for this purpose. (This is the one I posted earlier, then deleted because of too many variables.)

My wife and I are in a restaurant. Sitting next to us is a couple I sued for a client and won. They don't care too much for me and the lady walks over to me and slaps me in the face. As she draws back to slap me again, I pull my pistol (relying upon TPC 9.04), intending merely to create an apprehension in her that I will use deadly force if I have to, but having no intention to shoot. Her husband has no idea I'm not going to shoot, so he pulls his gun to shoot me. It doesn't really matter what happens from here; either way I have a big problem! He can shoot me because he reasonably believes I'm going to shoot his wife without legal justification to use deadly force.

Another reason I deleted this scenario before is because it's getting too deep into criminal law for my civil trial attorney experience. However, I believe it shows how a broad reading of 9.04 regarding the threat of deadly force when you couldn't use deadly force could go sour very quickly.

It was the express language in 46.035(a) & (h) that did him in. The McDermott court also stated that 46.035(h) was the only justification for failing to conceal. One thing we know for sure is that the Dallas Court of Appeals rejected McDermott's attempt to rely upon 9.04 to beat a charge of failing to conceal a handgun in violation of 46.035(a).

Why do I feel like I have Custer Syndrom? You know, letting yourself get lured into unknown territory without the packs!

Regards,
Chas.

txinvestigator wrote:I got in on this late, and I did not read every post, so forgive me if I repeat something.

I disagree that the law ONLY allows CHL holders to display their weapon if they would be justified in using deadly force. That is but ONE justification.

9.04 is clear, and from a former LEO's perspective I can tell you this. AS a cop I drew my weapon MANY people I was not justified in using deadly force against at the time. My doing so was not deadly force. It was force, and it was used to effect an arrest.

I can think of several scenarios where I might draw my weapon and point it at a person, or simply produce the weapon towards someone who I was not justified in shooting at the time.

We aren't talking about LEO's as they are not subject to TPC 46.035(a), only CHL’s.

TPC 46.035(a) makes it illegal for a CHL to intentionally fail to conceal his handgun. The only exception to this is found in TPC 46.035(h) which states:

(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.

The McDermott case quoted in full held precisely this, in spite of the defendant's attempt to rely upon TPC 9.04.

Also, as to LEO's using the threat of deadly force to effect an arrest, this authority comes not from TPC 9.04 alone, but from TPC 9.51 which states in part:

SUBCHAPTER E. LAW ENFORCEMENT


§ 9.51. ARREST AND SEARCH. (a) A peace officer, or a
person acting in a peace officer's presence and at his direction, is
justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to
make or assist in making an arrest or search, or to prevent or
assist in preventing escape after arrest, if:
(1) the actor reasonably believes the arrest or search
is lawful or, if the arrest or search is made under a warrant, he
reasonably believes the warrant is valid; and
(2) before using force, the actor manifests his
purpose to arrest or search and identifies himself as a peace
officer or as one acting at a peace officer's direction, unless he
reasonably believes his purpose and identity are already known by
or cannot reasonably be made known to the person to be arrested.

9.51 has many other provisions, but those quoted above are the authority for a LEO to use or threaten deadly force to make an arrest, or prevent an escape.

Regards,
Chas.

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.

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.

TPC 9.04 as justification to pull a pistol on someone:

McDermott made the same argument you are making and the Court rejected it. This rejection had nothing to do with the jury instructions that were and were not submitted to the jury. Let’s look at the Court’s opinion dealing with that issue.

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.

The Court resolved this issue simply by looking to the statute under which McDermott was convicted; i.e. 46.035(a) - failure to conceal. Since McDermott was not justified in using deadly force, then TPC 9.04 was immaterial since he couldn’t threaten the use of deadly force either. (Remember, TPC 9.04 justifies threats only if the actual use of force would be justified.)

Request for Jury Instruction on self-defense against "unlawful force" (not unlawful "deadly force")

The trial court refused to give a Jury Instruction on “self-defense, which would have allowed the jury to consider whether he acted against the use of ‘unlawful force’ as opposed to ‘unlawful deadly force.’� The appellate Court rejected McDermott’s argument that this was an error, again pointing to the express language of 46.035(a), the statute under which McDermott was convicted. As the Court noted:

Thus, under the plain language of the statute, appellant was entitled to display the handgun only if he would have been justified in using deadly force under Chapter 9. Under Chapter 9, deadly force is justified in limited circumstances to protect life or property. See Tex. Pen. Code Ann. §§ 9.32, 9.33, 9.34(b), 9.42 (Vernon 2003). With respect to deadly force in defense of persons, a person would have to show he was protecting himself against the other's use or attempted use of unlawful deadly force. See Tex. Pen. Code Ann. § 9.32(a)(3)(A) (Vernon 2003). Nothing in the statute allows appellant to display the weapon in response to "unlawful force."

The Court also noted that trial court did give a Jury Instruction on “deadly force� and that McDermott didn’t complain that the instruction was incorrect. Here, the Court is merely pointing out that McDermott didn’t complain about the wording of the Instruction on “deadly force.� The Court didn’t state that absent a complaint, TPC 9.04 did not apply. Indeed, the Court expressly dealt with the inapplicability of TPC 9.04, as discussed in the preceding paragraphs.

TPC 9.22 - Necessity as a justification

McDermott also complained that the trial court should have given a Jury Instruction on “Necessity� under TPC 9.22. The appellate court rejected this argument as well, noting that “we conclude the facts of this case fail to give rise to evidence of an ‘imminent harm.’� The Court goes on to discuss the scope of the word “harm� used in TPC 9.22, as set out in various cases. The Court stated:

Reading these definitions together, imminent harm contemplates a reaction to a circumstance that must be the result of a "split-second decision [made] without time to consider the law." Id. More than a generalized fear of harm is required to raise the issue of imminent harm.

The Court also examined the testimony given by McDermott and his wife which clearly negated the required element of “imminent harm.�

One thing we must keep in mind is that this case deals with a CHL violating TPC 46.035(a). Non-CHL’s cannot violate 46.035(a) because it applies only to CHL’s. If McDermott had not had a CHL, then the charges would have been different (terroristic threat TPC27.07, perhaps; UCW TPC 46.02, definately) and the Court’s analysis would have been different, but the result would have been the same - the threat of deadly force would not have been justified.

Kyle Brown wrote:Thanks for your patience.
Kyle

Thanks for making me work through this again. I’ve been practicing for a long time and every once in a while it’s good to have someone make you reevaluate your opinion and go back to the books. txinvestigator just did that to me on the “verbal disclosure� issue and I had to change my position. I appreciate the opportunity to reassess an issue, . . . but of course I’m still going to have to burn his house down anyway for embarrassing me in public.

Regards,
Chas.

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.

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.

Jim101 wrote:So, if your are in a situation with a low life and no one around.....You can't show your gun to make him back down? Because "he" will tell the police and you will get in trouble?? That doesn't seem right, if it makes him back down and not attack you isn't that what you want?

Jim

Unfortunately, that's the risk we face if we are forced to draw on someone. The only thing we can do is make sure that we are fully justified (legally) in pulling a gun on someone and then call 911 ASAP. There is much to be said for making the first report to the police. You had better be able to articulate exactly why you feared for your life, stating specifically why you felt there was an immanent threat of death or serious bodily injury; anything less and you have a real problem.

One thing to note about the Speilman case is the language he used during the incident. Cursing is sure to inflame the situation and if witnesses hear you, don't expect a friendly witness at trial. When the investigating officer and jury have to decide who's gelling the truth, your attitude, demeanor and language will be far more important than many people realize. I think everyone understands this was not a textbook example of how a CHL should handle a situation.

Regards,
Chas.

Paladin wrote:It's been my belief for a while now that not letting people see your gun protects you.

Just in case some incident happens... like some lowlife starts something. Even if you do the right thing, 100% legal, by the book... if they see your gun(and can describe it)... then they can make up any kind of story. Lowlifes don't have a moral code and don't care one bit about the truth.

All of a sudden you become the badguy that assaulted them with a gun.

You're absolutely correct! Another thing, always call the police. You want your story told first!

Chas.

Kalrog wrote:What was the other case that you found?

Here's the other case. It's not as interesting, but it is not lacking in poor judgment either! I've highlighted portions of the Court's opinion that I think people should consider carefully, especially when we're tempted to say "Yeah, but he . . ." All that matters is what the jury believes.

Chas.

EARL SEAN SPIELMAN, Appellant v. THE STATE OF TEXAS, Appellee
In The Court of Appeals For The First District of Texas

NO. 01-04-00692-CR

May 19, 2005

On Appeal from the County Criminal Court at Law No. 4 Harris County, Texas

Trial Court Cause No. 1215093

MEMORANDUM OPINION

The State charged appellant, Earl Sean Spielman, with committing the misdemeanor offense of unlawfully carrying a handgun by a license holder. See Tex. Pen. Code Ann. § 46.035(a) (Vernon 2003). A jury found him guilty of the offense, and the trial court assessed his punishment at one year of community supervision. In three points of error, appellant argues that (1) the evidence is legally and factually insufficient and (2) the trial court erred by admitting hearsay testimony. We affirm.

Background

On December 4, 2003, Alice Holt drove her two children, Chaunetta and Chad, to a local Social Security office. After parking in a reserved space in a parking garage, Holt left Chaunetta and Chad in the car while she went into the Social Security office. Chad was in the front seat, and Chaunetta was in the back seat, sleeping. Shortly thereafter, appellant arrived in his car to find his parking space occupied by Holt's car. Appellant approached the car and demanded that Chad move the car. Chad, who did not have a driver's license, woke up Chaunetta, who had been sleeping in the back seat. Chaunetta testified that, as she got out of the car, she told appellant that she would move it. Appellant returned to his car and got in briefly. He then got out of his car and moved toward Chaunetta, making threatening remarks. As appellant approached, Chaunetta noticed that he had his hand in his right pocket. She saw appellant pull out his handgun far enough from his pocket so that she knew it was a handgun. Chad testified that, because he was worried about Chaunetta's safety, he got out of the car and started to approach appellant. Chaunetta restrained him and told him that appellant had a handgun. Chad also testified that he saw the black handle of the handgun sticking out of appellant's pocket and saw appellant grab it and state, "You gonna assault me? Come on, come on. Move in closer." Chaunetta said that she too saw appellant grab the handgun again. The episode ended when a security officer arrived at the scene. Two other persons who witnessed the incident in the garage heard words being exchanged between appellant, Chaunetta, and Chad. These witnesses testified that appellant kept his hand in his right pocket and they did not see a gun. One witness also testified that she did not hear appellant mention having a gun.

Analysis

Legal Sufficiency

In his first point of error, appellant argues that the evidence is legally insufficient to support the verdict. Specifically, appellant argues that the evidence does not show that he intentionally failed to conceal the handgun. Rather, he contends that he inadvertently showed the handgun.

When reviewing legal sufficiency of the evidence to support a verdict, we view all of the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

The jury found appellant guilty of unlawfully carrying a handgun by a license holder. See Tex. Pen. Code Ann. § 46.035(a). Section 46.035(a) provides,


A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.
Id. A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003).

The State had the burden to show that appellant intentionally failed to conceal his handgun. The evidence shows that Chaunetta saw appellant pull a handgun from his pocket. She could not see the entire handgun, but she saw enough of it to recognize that it was a handgun. She testified that she saw the handgun on two occasions. Chaunetta's brother, Chad, also testified he could see a handgun in appellant's right pocket. Chad testified that he saw appellant grab the handle of the handgun, which was black. Based on this evidence, we conclude that a rational trier of fact could conclude that appellant intentionally failed to conceal his handgun.

We overrule appellant's first point of error.

Factual Sufficiency

In his second point of error, appellant argues that the evidence is factually insufficient to support the verdict. Similarly to his argument under his first point of error, appellant argues that the evidence is factually insufficient to show that he intentionally failed to conceal his handgun. He points out that no eyewitnesses testified that he made any express mention of the handgun or that he produced and aimed the handgun at Chaunetta. Thus, he argues that his act of showing the handgun was inadvertent.

In a factual sufficiency review, we view all the evidence in a neutral light and set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817-18 (Tex. Crim. App. 2004). In conducting a factual sufficiency review, we must discuss the evidence that appellant asserts is most important in allegedly undermining the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We must not substitute our judgment for that of the factfinder. Zuniga v. State, 144 S.W.3d 477, 481-82 (Tex. Crim. App. 2004). Unless the available record clearly reveals that a different result is appropriate, we must defer to the factfinder's determination concerning the weight given contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

An appellant's intent to commit an offense generally must be established by circumstantial evidence and may be inferred from appellant's acts, words, and conduct. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). The evidence in this case shows that (1) Chaunetta and Chad testified that appellant removed his handgun far enough out of his pocket so that they could determine that it was a handgun; (2) appellant used a rough voice in speaking to Chaunetta and Chad; and (3) appellant yelled obscenities at Chaunetta and Chad. Specifically, Chaunetta testified that, when he approached her, appellant stated, "You scum of the earth. Why are you even here. That's my parking space. I paid - - I paid money for that parking space. . . . Why don't you people go back to where you came from?" Chad also testified that, as appellant was holding the handgun in his pocket, appellant stated, "You gonna assault me? Come on, come on. Move in closer."

The evidence also shows that two witnesses testified that they did not see a gun. Chaunetta and Chad both testified, however, that they saw appellant partially pull out a gun from his right pocket. A jury has the sole province of deciding what weight to give contradictory testimony because its decision turns on the evaluation of demeanor and credibility. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). A jury's verdict is not manifestly unjust when it resolves conflicting views in favor of the State. Id. at 410. It is clear by the verdict that the jury chose to give more weight to Chaunetta's and Chad's testimony.

Although appellant did not point the handgun at Chaunetta or specifically refer to the handgun, the jury could have reasonably believed that appellant's act of partially removing the handgun from his pocket, together with his conduct and words, demonstrated that he intentionally failed to conceal his handgun. Based on all the evidence presented, we conclude that the evidence is factually sufficient to support the verdict.

We overrule appellant's second point of error.

Hearsay

In his third point of error, appellant argues that the trial court admitted inadmissible hearsay testimony. Specifically, appellant argues that the trial court erred in admitting Officer Vo's testimony that repeated Chaunetta's statements that appellant had purposefully revealed his handgun to her. Appellant objects to the following testimony:


She said he pulled out a gun and showed it to her. Showed it out from his front pocket, front right pocket. He didn't pull it out all the way, but he pulled it partially out where--where her brother and her can see his hand on his--his finger on the trigger.
Appellant objected to Officer Vo's testimony on hearsay grounds. On appeal, appellant argues that the State sought to admit this testimony under the excited utterance exception to the hearsay rule. See Tex. R. Evid. 803(2), 802. Appellant argues that this testimony was not an excited utterance because the record fails to show that Chaunetta was still excited at the time she spoke with Officer Vo.

In determining whether a trial court erred in admitting evidence, the standard for review is abuse of discretion. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). "A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Foster v. State, 909 S.W.2d 86, 88 (Tex. App.--Houston [14th Dist.] 1995, pet. ref'd).

An excited utterance, which is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," is not excluded by the hearsay rule. Tex. R. Evid. 803(2). To qualify as an excited utterance, the following criteria must be met: (1) the statement must be the product of a startling event; (2) the declarant must be dominated by the emotion, excitement, fear or pain of the event; and (3) the statement must relate to the circumstances of the startling event. See Jackson v. State, 110 S.W.3d 626, 633 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd) (citing McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)).

Appellant argues that the record fails to show that Chaunetta was still excited at the time she spoke with Officer Vo. Appellant asserts that, after the confrontation between appellant and Chaunetta occurred, the following events took place: (1) Officer Vo separated Chaunetta and appellant; (2) appellant moved his vehicle; (3) Chaunetta reparked her vehicle; (4) appellant parked his vehicle; and (5) appellant left the garage and went to his office.

The lapse of time between the event and declaration, and whether the statement is made in response to a question, are considerations in determining whether the statement is admissible as an excited utterance, but they are not dispositive. Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995). The critical factor is whether the emotions, excitement, fear, or pain of the event still dominated the declarant at the time of the statement. Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003). If the statement is made while the declarant is still in the grip of emotion, excitement, fear, or pain and the statement relates to the exciting event, it is admissible even after an appreciable amount of time has elapsed. Penry v. State, 691 S.W.2d 636, 647 (Tex. Crim. App. 1985); Jones v. State, 772 S.W.2d 551, 555 (Tex. App.--Dallas 1988, pet. ref'd).

Here, the record does not reflect how much time passed after the confrontation between appellant and Chaunetta. However, Officer Vo testified that Chaunetta was very, very upset and had tears coming down her face. Moreover, on cross-examination, Chaunetta testified that she was emotional when she spoke to the security officer. We conclude that Officer Vo's testimony as to Chaunetta's statement after her confrontation with appellant satisfied the excited utterance exception to the hearsay rule. See Tex. R. Evid. 803(2). The trial court did not abuse its discretion in admitting Officer Vo's testimony.

We overrule appellant's third point of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes Justice

Panel consists of Justices Nuchia, Keyes, and Bland.

Here is one of only two cases I found dealing with a CHL being convicted of violating 46.035(a) (failing to conceal). He claimed he and his wife were fearful of a female driver, but that didn't fly with the jury or the appellate court.

Moral: Don't try to defuse an incident by pulling your pistol, unless you would be justified in using deadly force. "If you can't shoot it, don't show it!" - a great rule of thumb to keep out of trouble.

Here's the case:

2005 Tex. App. (LWC-4161); McDermott v. State;
MICHAEL ROBERT MCDERMOTT, Appellant v. THE STATE OF TEXAS, Appellee
June 13, 2005.

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-04-01125-CR

On Appeal from the County Court at Law No. 1 Collin County, Texas

Trial Court Cause No. 001-86638-03

OPINION

Before Justices Morris, Francis, and Lang-Miers

Opinion By Justice Francis

A jury convicted Michael Robert McDermott of unlawfully carrying a handgun by a license holder, and the trial court assessed punishment at thirty days in jail, probated for six months, and a $50 fine. In three issues, appellant complains of charge error. We affirm.

Sarah Hudson was driving west on Parker Road in Plano with five children in her vehicle. While stopped at a red light at the intersection with Alma Road, Hudson heard the vehicle behind her honking. Hudson looked in her mirror and could see the driver flailing his arms, screaming, and making obscene gestures. The man, identified as appellant, wanted to move into the left turn lane, but was blocked by Hudson's vehicle. Hudson said she could not move up enough to make room for appellant. When the light turned green, appellant passed Hudson and continued to "flip" her off and yell.

Hudson also turned left onto Alma at the light and passed appellant. Appellant again made an obscene gesture and Hudson said she made the same gesture. At the next lighted intersection at Park Boulevard, Hudson said appellant continued yelling. She could not hear what he said because her windows were up. Hudson testified that at one point, appellant motioned for her to get out of her car. Not wanting to be "bullied," Hudson said she briefly opened her car door but did not get out. She saw appellant then reach under the front seat of his car and pull a gun from a bag. He then pointed the gun at her. Hudson said she was "scared" and called the police from her cell phone.

Appellant and his wife, who was with appellant when the altercation arose, testified that Hudson was the person who began "mouthing" and making obscene gestures at the first traffic light. Both also testified that after turning left onto Alma, Hudson swerved into their lane, temporarily forcing them out of the lane, and then repeatedly tapped her brakes in an effort to cause appellant to collide with the back of her vehicle. According to Mrs. McDermott, the children were riding unrestrained in Hudson's vehicle, causing her to fear for their safety. Once both vehicles stopped at the second lighted intersection, appellant rolled down his window and asked Hudson "if that's how she always drove with kids in her car." Hudson was yelling and cussing and then got out of her vehicle and came toward appellant's vehicle. Mrs. McDermott said she was "very afraid" because she did not know what Hudson was going to do, particularly in light of the fact she had tried to "run" appellant off the road and "already tried to cause an accident." To diffuse the situation, appellant said he displayed his gun to Hudson so she would "leave us alone." At that point, Hudson returned to her vehicle. Appellant said he did not know what else to do because Hudson had "started this thing, had chased us down, tried to make us have an accident, kept it going, and we had rolled down the windows and had an altercation." In three issues, appellant complains the trial court reversibly erred by refusing to give instructions on self-defense and the defenses of necessity and threats as justifiable force.

Appellant first complains he was entitled to an instruction on self-defense, which would have allowed the jury to consider whether he acted against the use of "unlawful force" as opposed to "unlawful deadly force." He argues he was entitled to any defensive issue raised by the evidence, and there was evidence of Hudson's "erratic behavior" and reasons why he "held a reasonable belief that force was immediately necessary to protect him against [Hudson's] use or attempted use of force." In making his argument, however, appellant completely ignores the statute under which he was convicted.

Section 46.035(a) of the Texas Penal Code makes it a crime for a person with a handgun license to intentionally fail to conceal the handgun. Subsection provides a defense: 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.

Tex. Pen. Code Ann. § 46.035(b) (Vernon 2003). Thus, under the plain language of the statute, appellant was entitled to display the handgun only if he would have been justified in using deadly force under Chapter 9. Under Chapter 9, deadly force is justified in limited circumstances to protect life or property. See Tex. Pen. Code Ann. §§ 9.32, 9.33, 9.34(b), 9.42 (Vernon 2003). With respect to deadly force in defense of persons, a person would have to show he was protecting himself against the other's use or attempted use of unlawful deadly force. See Tex. Pen. Code Ann. § 9.32(a)(3)(A) (Vernon 2003). Nothing in the statute allows appellant to display the weapon in response to "unlawful force." The charge included an instruction on "deadly force," and he does not complain that instruction was incorrect. We conclude the trial court did not err in denying appellant's self-defense instruction. We resolve the first issue against appellant. In his second issue, appellant argues the trial court erred by failing to give his requested instruction on the defense of necessity. Under the defense of necessity, conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;


(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
Tex. Pen. Code Ann. § 9.22 (Vernon 2003). Having reviewed only the evidence that would support submission of the instruction, we conclude the facts of this case fail to give rise to evidence of an "imminent harm."

"Harm" means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested. Tex. Pen. Code Ann. § 1.07(a)(25) (Vernon 2004-05). "Imminent" means something that is immediate, something that is going to happen now. Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.-Austin 2002, pet. ref'd ). Reading these definitions together, imminent harm contemplates a reaction to a circumstance that must be the result of a "split-second decision [made] without time to consider the law." Id. More than a generalized fear of harm is required to raise the issue of imminent harm. Id.

Here, the evidence showed that after Hudson swerved into appellant's lane of traffic and tapped her brakes in an effort to cause a rear-end collision, appellant pulled up at the second lighted intersection, rolled down his window, and asked Hudson if that is how she always drove with children in the car. When Hudson got out of her car, appellant said he showed her his gun. When asked why he pulled out his weapon and showed it to Hudson, appellant responded, "Because this woman - I didn't know what else to do to get the woman away from us. She had already started this thing, had chased us down, tried to make us have an accident, kept it going, and we had rolled down the windows and had an altercation. The windows were then rolled back up and I thought it was over. She got out of the car and continued it, and I wanted her to leave us alone. So I have a license to carry a handgun and I pulled out my gun and showed her I had it."

Although appellant and his wife testified that they feared Hudson as she approached their vehicle, neither testified as to any specific harm that they feared from Hudson. According to Mrs. McDermott, Hudson was not carrying any weapon. Further, Mrs. McDermott testified that she told her husband to put his gun down. Finally, appellant specifically testified that he showed Hudson the gun because he wanted her to "leave us alone." Having reviewed the evidence, we conclude the evidence failed to raise the issue of "imminent harm." At most, the evidence perhaps raised an issue of some general sense of harm, which is not sufficient to raise the necessity defense. We resolve the second issue against appellant.

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.

We affirm the trial court's judgment.