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TX_Jim wrote:

Charles L. Cotton wrote:

TX_Jim wrote:I hope you review this and have enough intellectual integrity to see past egos and realize that my logic holds true and can be applied to many (if not all) circumstances.

I've been swamped for two days and just saw this. Your time here is going to be very short.

You arguments are erroneous, your logic is flawed and then you get insulting. Perhaps those credentials you hold in so little regard are more important than you realize.

Chas.

This might very well be my last post on this site…at least under this screen name. I will apologize if I insulted anyone as that was not my intention. I just do not believe that credentials should have anything to do with valid arguments. If the argument is sound, it will stand on its own and should not need credentials to validate the argument. Those who do not know better can be easily influenced based on credentials alone and not the validity of the argument. I don’t hold someone’s credentials in low regard…after all they worked hard to get them (and I do have a few of my own…not in the legal world…but I do have some in my profession). I just do not believe that they should be used to lend credence to an argument. Think about this…Why do people get second opinions when diagnosed with a disease…is it possible that even though their doctor has MD in their title that they could be wrong or mistaken?!?!?!? Absolutely…no one is perfect.

That being said…I am going to say something that I tried to avoid during this debate (mostly because I hate when others do this). After your “step by step� response, I spoke with a friend of my dads who happens to be a retired probate judge. I know most will say that he is only a probate judge but he worked on both sides (as a prosecutor and as a defense lawyer) before becoming a judge. I showed him this thread and I admit that he did correct me on a couple of minor points but for the most part my logic was right on. I will not divulge his name on this forum as I do not have his permission…however, I will try to gain his permission and I will provide it to you (as well as his contact information) off line at a later date if you wish to discuss it with him.

If you choose…as site administrator…to ban me from the forum…so be it. I know that I behaved with absolute integrity.

The message in your previous post was clear; if I don't agree with your position, then I'm either intellectually dishonest, or too egotistical to admit you are right. That's insulting and your claim that you didn't intend it is falling on deaf ears. No person could say that to another and think it wouldn't be an insult.

As for credentials, I almost never mention them myself; you brought up the issue by saying credentials mean nothing to you. Now you admit you went to an attorney, a retired probate judge, to get a "second opinion" on your argument, then to use his opinion to bolster your arguments. I guess you do value some credentials, those that support your position that is.

I don't care what a probate judge said about this issue, as you and I are arguing totally different concepts. Your position is based solely on your personal opinion as to when a "crime" is committed, or when an "offense" occurs. That's what I said from the begining. You, however, wanted a step-by-step analysis of my position, so I gave it to you. My approach is a legal one answering the question "when can we say an offense has occurred?" That occurs in only one of two ways, 1) a jury finds one "guilty;" or 2) someone pleads "guilty." Until then, the person is merely an accused.

Your approach is one of two things; a moral approach, or one ignoring the process of criminal jurisprudence. I have no problem with the moral approach, I do it just as much as anyone else, except when I'm in a case. Then I have to follow the dictates of the law in proving my case and what I or the news media think is irrelevant. When I hear the evening news anchor say, "An elderly couple was found murdered in the southwest side home this evening, . . ." I presume a crime has been committed. However, all we really know is that two people are dead in their home and we are assuming the facts would support a murder charge and that a jury hearing those facts would find the person guilty.

The criminal jurisprudence process cannot be cut short. No one gets to decide mid-stream if an accused/defendant is guilty or not guilty. This determination is made when the trial ends with a guilty or not guilty verdict, unless a plea of guilty is entered first. Even when a judge dismisses the charges against someone, he isn't ruling that no crime has been committed. He's ruling that there is insufficient evidence to continue the prosecution to determine if a crime has been committee (or offense has occurred, if you prefer that terminology.)

Did O.J. commit the crime of murder? No, 12 people said so. Did he kill two people -- I believe he did, the police believe he did, the prosecutor believes he did, most Americans believe he did, but our opinions don't matter; the jury said "not guilty." O.J. does not have a murder conviction on his "record" and the case is still officially "unsolved."

I believe you are taking a moral approach to this issue, which is fine, but you're trying to couch it in a pseudo-legal analysis of the Penal Code elements. In so doing, you find yourself looking to the dictionary for definitions of terms not used in the Code, then trying to bootstrap those definitions into your argument that an offense occurs at some point prior to a jury verdict. (You even note that, when words are not defined in a statute, we look to the common usage of the term. But this procedure is used to define words actually appearing in the statute!) The two approaches cannot be commingled. A moral position needs to foundation in the law and often there is none. It is morally wrong for a spouse to commit adultery, but it is no longer a criminal offense in Texas. (Yes, it can be relevant in a divorce, but we're talking about criminal statutes.) When we approach an event or issue from a legal perspective, we have to follow all the dictates of the law; the Penal Code, Code of Criminal Procedure, Texas Rules of Criminal Procedure, Texas Rules of Evidence, Texas Constitution, federal laws (where applicable) and the U.S. Constitution. The requirements of every one of these compilations must be met, before a determination can be made as to whether a crime has been committed.

You are not wrong in your opinion, your error comes when you try to cloak your opinion as a legal concept. It would be a mistake for me to do the same thing in reverse. For example, I couldn't argue that people shouldn't be upset with O.J. because a jury found him "not guilty."

Whether this is your last post is up to you. Follow the forum rules and you're fine, whether or not you and I agree on any issue, except civility. I have disagreed with other members (some of them friends), sometimes passionately, but we remain respectful to one another. It's not a lack of agreement on an issue that bothers me (unless it amounts to giving inaccurate, dangerous legal advice to someone), it's the insults or personal attacks that cause a problem.

Quite some time back, Kyle Brown, txinvestigator and I had a long-running discussion on the issue of TPC §9.04 Threats as Force. The issue revolved around whether or not a person could threaten the use of deadly force by producing a gun, when the Penal Code would only justify the use of non-lethal force. Kyle and txinvestigator were on one side of the discussion, I was on the other. I was wrong. After several weeks of talking to criminal defense attorneys, prosecutors and two law professors who teach criminal law, I realized Kyle and txinvestigator were correct and I now include a discussion on this issue (as it related to the McDermott case) in my seminars and my CHL classes. I also give Kyle and txinvestigator credit for changing my mind on this issue. I wish this was the only occassion on which I was on the wrong side of a discussion, but sadly it's not. I also have no problem admitting it when it occurs. I consider this being intellectually honest.

Chas.

TX_Jim wrote:I hope you review this and have enough intellectual integrity to see past egos and realize that my logic holds true and can be applied to many (if not all) circumstances.

I've been swamped for two days and just saw this. Your time here is going to be very short.

You arguments are erroneous, your logic is flawed and then you get insulting. Perhaps those credentials you hold in so little regard are more important than you realize.

Chas.

TX_Jim wrote:

frankie_the_yankee wrote: Emphasis added.

I'm only re-quoting this message to point out that unlike most of us, Chas is a lawyer.

I ultimately agree with Chas that we are just playing word games here, however, as I pointed out earlier, just because he is a lawyer, does not make what he says correct or make it fact. As a lawyer, he should be able to walk through the scenario step by step and make his arguments stand on their own to support his conclusion and not use his credentials as a crutch to lend credence to the argument. Being a lawyer, simply means he should be able to make a better argument on the subject matter than i can.

No Offense Chas...

Okay, step-by-step.

TX_Jim wrote: . . . The sole act of pointing a firearm at a human being is a threat of use of deadly force and is, at the very least, a violation of penal code as defined by PC 22.01 ASSAULT and a class a misdemeanor is punishable by law.

No it is not. A person can be arrested for assault and he can be charged with assault. But a legal determination is not made until a jury returns a "guilty" or "not guilty" verdict. Until the jury makes this determination, there is only an allegation (charge) against the defendant.

TX_Jim wrote: . . . I could not find a definition for the word “crime� in the penal code (if someone knows where it is defined please tell me), and therefore when a word is not defined it takes on the “usual� meaning.

This is true, but only when the undefined term is used in the statute and is thus an element of the offense. Since the word "crime" isn't used in the Penal Code sections we have been discussing, it is not an element of the alleged offense, thus Webster's definition or common meaning or usage is irrelevant.

TX_Jim wrote:Therefore the act of simply pointing a weapon is a violation of law and according to definition....it is a "crime" onto and in itself.

No it is not, for the reasons previously stated.

TX_Jim wrote:The victim either the acted in violation of the law or did not act in violation law.

Correct, and this will be determined only by a jury, not the arresting officer, not the Grand Jury, not the prosecutor, and not the judge (unless it is a bench trial).

TX_Jim wrote:I hope we can all agree that this act had to take place at some point in the scenario and agree that the act in itself is a violation of law…but I digress.

No, I do not agree. The act of pointing a gun at someone may give a LEO reasonable reason to believe a crime has been committed, it may give a Grand Jury reason to believe that sufficient evidence exists to indict someone and take them to trial, but a determination as to whether the allegation (charge) is true is left solely to the jury.

TX_Jim wrote:Penal Code 9.31 says that certain acts are “justified� if they rise to the extent of self-defense. The word justified in no way means or implies that a law was not violated.

It absolutely does! If an act is justified, then the defendant will be found "not guilty." Absent a jury finding of "guilty," there is no violation. Remember, only a jury can make this determination.

TX_Jim wrote:Small recap…the victim violated law when he/she pointed the firearm at another human being. The act is justified by law but does not erase the fact that a law was violated it simply justifies it.

The fallacy of this argument is that you are trying to determine whether a violation of a penal statute has occurred, without completing the entire process. As noted earlier, if all of the elements of a offense appear to be present, then a LEO can make an arrest, a Grand Jury can indict, and the prosecutor can bring the case to trial. At trial, the jury will consider all of the evidence, including any evidence of "justification," and it will make the ultimate determination of whether or not a violation has occurred. Until then, whether or not a violation has occurred (a/k/a crime has been committed) will be nothing more than matters of personal opinion.

TX_Jim wrote:Further exploration…When a violation of law is justified, the people simply make a concession on punishment not a concession on law.

Not true! A jury either finds the defendant "guilty" or "not guilty." There is no verdict "guilty, but without punishment."

TX_Jim wrote:In conclusion, given the scenario in the OP, A law was violated under justifiable conditions. The victim will not be held accountable or punished for violated the law under those conditions.

Wrong. The defendant will be found "not guilty" by the jury and he will have no criminal convictions on his "record."

This step-by-step trip through the process shows why I said only a jury's determination will answer questions “Did you break the law?� and “Was a crime committed?� Each of us can have personal opinions as to whether or not the evidence rises to the level that would support a conviction, but unless we are on the jury, our opinions don’t matter.

Also as I said earlier, when we as laymen (me included, when I’m not wearing my attorney hat), talk about something being a “crime,� we typically are either talking about an event for which someone has been convicted, or we are expressing our belief that all of the elements of an offense are present, that no defenses exists under the law, and that someone will or should be convicted at some point.

This is the same analysis I give to my clients who may ask “was I negligent� or was the opposing party negligent? What they think, what I think, and what the opposing party or attorney think is meaningless. Only a determination by a jury will answer the question.

Chas.

Photoman wrote:

ctxpta wrote:Do you break the law if the following happens??

Person trying to rob you shots at you. Their shot hits you. They appear to be taking another shot. You draw your weapon and shot the person. The person dies.

Did you commit a crime?

Did you break the law? Yes or no?

Was a crime commited? Yes or no?

This will be determined if and only if a jury makes a final decision. Yes, I know juries find a defendant "not guilty," rather than "innocent," but we just playing word games at this point.

Chas.

As Txi said, we're getting too wrapped up in the term "crime." The Penal Code describes conduct that is prohibited, but it also describes circumstances under which it isn't prohibited. These circumstances can be "exceptions" or "defenses."

Note the Penal Code doesn't say "A person commits a crime, if . . .� it says "a person commits an offense if . . . When we use the word crime in the context of whether a "crime" has been committed, we are actually talking about whether a person had been convicted of, or pled guilty to, the offense with which they were charged.

Chas.

Photoman wrote:

txinvestigator wrote:
So if you got mad at your neighbor and shot him with your pistola, they could not charge you with murder if he died?

You have to admit, it would be a novel defense.

To close, if I've learned anything from this forum, it is that Texas law makes about as much sense as a painting by Escher. I'm not going to consider myself a criminal or a murderer, nor do I think God the creator and supreme authority of such matters will, if I shoot someone in self defense and they die.

That one won’t fly. You don’t have to intend to kill the person, it is sufficient to intend to cause serious bodily injury by an act that is dangerous to human life. Serious bodily injury is defined rather broadly, so shooting someone with a pistol is going to produce injuries that are very likely to come within the scope of the definition.

Below are the statutory provisions at issue:

TPC §19.02(b) wrote:(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or . . .

TPC §9.01(a)(3) wrote:§ 9.01. DEFINITIONS. In this chapter:

(3) "Deadly force" means 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.

TPC §1.07(a)(46) wrote:(46) "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.