TexasCHLforum.com

speedsix wrote:

sugar land dave wrote:§ 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
(a) 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.

....<snip>....

(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.

§ 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.

...yup, them's the ones...they seem to be at odds with each other to me...one says I'm defensible for displaying my pistol IF I would have been justified by Ch9 in USING DEADLY FORCE...


...the other says I am justified in threatening with deadly force even though I'm not justified in using deadly force...that burns my "not fair" buzzer slap off the wall...but I know it doesn't have to be fair to be legal...

The McDermott decision was wrong because it ignored §9.04. One defense to a charge of intentional failure to conceal found in TPC §46.035(h), but the McDermott court expressly stated it was the only defense. In fairness to the court, the trial evidence may not have shown any justification under §9.04 because the defendant would not have been justified in using any level of force. However, the court should have at least addressed the application of §9.04 under a different fact pattern so the decision would not be erroneously offered for the premise that §46.035(h) is the only defense to intentional failure to conceal.

Chas.

I rarely answer these types of questions, but the scenario presented is pretty clear. To an experienced eye, this was clearly a robbery in the making and the OP's action appeared reasonable in response to this threat. I think the case Steve was talking about is McDermott that erroneously held that the only defense to intentional failure to conceal by a CHL (TPC §46.035(a)) is the ability to actually use deadly force. McDermott was wrongly held and thankfully it only applies to that particular appellate jurisdiction, although it is "persuasive authority" all over Texas. (It was a Court of Appeals case, not a Texas Court of Criminal Appeals case.)

McDermott ignored TPC §9.04 that allows the threat of force to defuse a potentially deadly confrontation. Unless I'm mistaken, there still is no Texas appellate decision dealing directly with the scope of §9.04. It was taken from the Model Penal Code, the comments to which state that one can threaten the use of deadly force, even if only non-lethal force could be used. The rationale is to allow people to make the aggressor aware that the intended victim can and will use deadly force if it becomes necessary. During my last in-person CHL Instructor course in Austin, a now-retired DPS Lt. gave an example of this precise use of the threat of deadly force in a scenario where deadly force would not yet be justified. He noted this was authorized by TPC §9.04. Again, I haven't researched §9.04 in a good while, so the Lt. and I may be mistaken.

As Diesel42 noted, the presence of a young child in the van is a factor, a major factor in my view. As to what I would physically do, it's hard to say, but I think the OP's actions were reasonable, but I would have added an element of verbal compliance. Since I use and teach a draw stroke that makes a retention or "break away" shot easy, I probably wouldn't have drawn my handgun, but I certainly would have had my hand on it ready to respond quickly.

Chas.

BTW: I am an attorney, but I'm not yours so this isn't legal advice, just my opinion.