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.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:
Edited to delete the hypothetical scenario. It was too general and left too many variables unaddressed. (Yeah I know; more lawyer-speak.)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.
Regards,
Chas.
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.
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. 