DO you break the law when???

[Charles L. Cotton]

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.

. . . 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.

. . . 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.

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.

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).

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.

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.

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.

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."

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.

[txinvestigator]

[TX_Jim]

. . . 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.

The code is clear…either a violation occurred or it did not. I agree that a Jury has the final say whether a “Crime� occurred. A guilty/not guilty verdict refers to a “crime� and as defined, a crime requires two parts…one, a violation of law, and two, a punishment can be assessed. A jury can find a defendant not guilty under two circumstances. One either they find that the defendant did not violate law period = not guilty (of a crime)…two, a law was violated but due to the circumstances a punishment should not be assessed = not guilt (of a crime). Examples of this can be seen in cases where the defense is insanity. In such a case, the defendant is not arguing whether there was a violation of law or not, the defendant is arguing whether they should be punished because of their diminished mental state. In this case, a jury can find the defendant not guilty…not because a law was not violated…but because the defendant should not be punished because of their mental capacity. This same scenario hold true in self defense cases. If I shoot some one in self-defense, I am not arguing the fact that a law was not violated…I am arguing the fact that I should not be punished because I had good reason. Again, the jury will make a judgment on guilt of a “crime� under the two requirements. They will find me not guilty….again not because a law was not “violated� but because I should not be punished because I had good reason to violate the law.

A jury is charged with two tasks. One, determine, based on the evidence whether a law was violated and two, if a law was violated, should a punishment be assessed based on the circumstances.

If you are driving down the road at 55 mph but the speed limit is only 45 mph…has a law been violated? Yes. Are you “guilty� of a crime? No…because a jury has not said so yet.

. . . 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.

I agree that the word crime is not relevant as far as the offence is concerned but it is most relevant for this discussion and therefore must have a definition. In the original post, the poster asked “Did you commit a crime?� I assert that a crime has not been committed…I also assert that there was a violation of law. There are only two states we are referring. State One…the defendant did not draw a weapon and point it at the BG (no violation). State Two, the defendant drew a weapon and pointed it at the BG (violation). One of these two states of being is a clear cut violation of law. Very similar to speeding in that One is either speeding or One is not speeding while in a motor vehicle. It is sort of like an on/off switch…one of two states…a switch is either on or off. One can turn the switch to the on position but still have no light because the bulb is broken….but that in no way means that the switch itself in not in the on position.

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).

Yes…the jury will determine this fact. The defendant will stipulate this fact. If the defendant does not stipulate this fact then the defense will need to argue that he did not draw his weapon and point it at the BG. In order for there to be a self-defense case, the defendant must stipulate that a law was violated. If a law was not violated there is no need to justify his action.

It is sort of like spending company money. When an employee spends company money for business purposes the employee must justify the expenditure with an expense statement. If an employee does not spend company money for business purposes would he turn in an expense statement? No…because there is nothing for the employee to justify.

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.[/ quote]

Again…I agree that only a jury can find someone guilty or not guilty of a “Crime.� I also agree that in this case the jury would most likely find the defendant not guilty…of a crime. I still assert that a “crime� has two parts…a violation of law and is punishable. In this case, the defendant will stipulate that a law was violated but he should not be punished because it was self-defense. The jury would mostly likely return not guilty (of a crime)…not because a law was not violated but because the defendant should not be punished for protecting their own life.

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."

I agree…a jury would mostly return a “not guilty� (of a crime) and there will be nothing on the defendant’s record. I assert that this “not guilty� verdict in this case is not as a result of a law not being violated but it is a result of the fact that the defendant should not be punished for violating the law because it was self-defense.


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.

[frankie_the_yankee]

If I shoot some one in self-defense, I am not arguing the fact that a law was not violated…I am arguing the fact that I should not be punished because I had good reason.

Jim, if you shoot someone in self defense you are free to argue whatever you feel comfortable with.

But I must say that if I shoot someone in self defense, my attorneys will be arguing that I did not violate the law because my actions were fully justified under the law.

A jury is charged with two tasks. One, determine, based on the evidence whether a law was violated and two, if a law was violated, should a punishment be assessed based on the circumstances.

Where does this come from? I've never heard of a verdict of "guilty but no punishment". Even in insanity cases, the verdict is "innocent by reason of insanity".

I also assert that there was a violation of law. There are only two states we are referring. State One…the defendant did not draw a weapon and point it at the BG (no violation). State Two, the defendant drew a weapon and pointed it at the BG (violation). One of these two states of being is a clear cut violation of law.

Asserting something does not make it so. It seems like you're saying that something is a violation "just because". As Chas has stated, only a jury can decide whether a given act is a violation.

Otherwise, in a self defense case where the defendent admits to pointing and/or shooting his weapon, he would be stipulating that he was guilty, and the trial would only concern itself with determining a fair punishment. At the end, he would walk out of the courtroom with a criminal record.

Instead, he walks in presumed to be innocent, stipulates the facts, and the jury decides whether or not there is a violation and whether or not he is guilty of a crime.

Again…I agree that only a jury can find someone guilty or not guilty of a “Crime.� I also agree that in this case the jury would most likely find the defendant not guilty…of a crime.

OK.

I still assert that a “crime� has two parts…a violation of law and is punishable. In this case, the defendant will stipulate that a law was violated but he should not be punished because it was self-defense.

No. A defendent stipulates to the facts. He does not stipulate he violated the law. You say that only a jury can decide whether some act is a crime. But you seem to leave it to anyone to decide whether a given act is a violation.

"Asserting" it is not anough. Saying that some act is a "clear cut violation" of the law is not enough. In our system, there is a basic principle. The jury is the finder of facts. Nothing is a fact until a jury says it is. It doesn't matter how "plain" it is. Until a jury decides, everything is just an allegation.

So someone can stipulate that they pointed and fired their gun. That is a historical fact and if stipulated the jury will accept it as such. But whether or not it was a violation of the law is a judgement that only a jury can ultimately make.

[txinvestigator]

[
A jury is charged with two tasks. One, determine, based on the evidence whether a law was violated and two, if a law was violated, should a punishment be assessed based on the circumstances.

.

Jim, Texas has bifurcated criminal trials. The first phase is guilt or innocence. If a jury does not find that the prosecution established guilt beyond a reasonable doubt, a not guilty verdict is entered. There is no punishment phase.

If the jury finds the person committed the elements of the offense beyond a reasonable doubt, BUT the person presented evidence of a justification and reasonable doubt exists on the justification, a not-guilty verdict is entered. There would be no penalty phase.

If the jury finds that the person committed the elements of the offense, but should not be criminally liable due to insanity, a not guilty verdict is entered, and there is no penalty phase.

If a person is found guilty, there is a penalty phase of the hearing and punishment MUST be assessed under the penal code. All crimes have minimum and maximum punishments if convicted.

[txinvestigator]

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

I agree…a jury would mostly return a “not guilty� (of a crime) and there will be nothing on the defendant’s record. I assert that this “not guilty� verdict in this case is not as a result of a law not being violated but it is a result of the fact that the defendant should not be punished for violating the law because it was self-defense.

Negative. The jury will determine first if there is evidence that the person committed the elements of the crime charged. If their answer is NO, then a Not guilty verdict is entered. If their answer is YES, and evidence was entered that supports a justification, THEN they will deliberate on the justification. If they find reasonable doubt exists on the justification, then they will enter a not guilty verdict.

It has nothing to do with deciding whether you should be punished; rather , it is entirely whether you met the legal justification.

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.

[frankie_the_yankee]

If the jury finds the person committed the elements of the offense beyond a reasonable doubt, BUT the person presented evidence of a justification and reasonable doubt exists on the justification, a not-guilty verdict is entered. There would be no penalty phase.

I agree that if someone shoots someone else in self defense, and stipulates to that effect, they have admitted to committing the elements of an offense.

And at that point, a jury decides whether or not those elements constitute a violation of the law, taking into account any evidence of justification that the defense presents.

[txinvestigator]

If the jury finds the person committed the elements of the offense beyond a reasonable doubt, BUT the person presented evidence of a justification and reasonable doubt exists on the justification, a not-guilty verdict is entered. There would be no penalty phase.

I agree that if someone shoots someone else in self defense, and stipulates to that effect, they have admitted to committing the elements of an offense.

And at that point, a jury decides whether or not those elements constitute a violation of the law, taking into account any evidence of justification that the defense presents.

We are close. First, the jury decides if the elements were committed. They have to decide at that point whether or not a criminal violation occurred. If not, a not guilty verdict is then entered. If the elements DID amount to a violation, then they consider whether or not any presented justification exists.

[frankie_the_yankee]

I think we are close enough that I wouldn't go teaching a CHL class that if they point or shoot their gun at someone who had robbed them, shot them, and was apparently going to shoot them again, that they were:

a) violating the law,

or,

b) committing a crime.

Besides the fact that the scenario is such an extreme example of lawful self defense that it is ludicrous to think that shooting would violate the law, only a jury can ultimately make such a determination.

I think that using an example like that to illustrate the concepts of "exceptions" to the law, "justifications" for certain actions, and "defenses to prosecution" is more likely to create confusion among students than it is to instruct them.

[txinvestigator]

Frankie;

It is important for students to understand the defense to prosecution.

I start with using a very simple example;

If I walk up and just punch you in the nose, what is that? The class always agrees that it is an assault.

I then change it, and say, "what if FIRST, you grab my shirt, pull your other fist back, and say thru clenched teeth, 'I'm gonna whip your tail.'? Before you can hit me, I punch you in the nose. What is that?"

I then get mixed answers. Most say it is self-defense, and I ask how they know. Seldom do any of them know why, they just "know it". I then tell them that we will learn the law, and apply the scenario in a bit, but for now, did my actions meet the definition of assault. Of course it does.

SO, how can I not be found guilty of assault. We look at 9.02 of the penal code § 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to
prosecution that the conduct in question is justified under this
chapter..

The "conduct in question" is my hitting you in the nose. So, it is a defense to prosecution if my hitting you in the nose was justified by chapter 9.

We then discuss 9.31, and the class decides that my "conduct in question" was justified. The we talk about variables. If there were no witnesses, and you called the police to report an assault, I might very well be arrested and convicted of assault, even though I WAS justified. How? Well, there is your blood on my hand, you have a bloody nose, and you tell the cops I just punched you over a disagreement, and you deny touching me.

However, if there were witnesses or other evidence I might or might not be arrested and charged. I clearly committed the elements of the assault, but the justification is not automatic. I have to be able to prove it.

Then I move to a scenario where a guy appears out of nowhere with a gun, threatens to kill me, and I shoot him. We discuss 9.32 and the class decides I was justified. OK, what if after he goes down he dies, I turn my back on the dude and his partner or someone else takes his weapon. The cops get there and there is no weapon, but there is a dead guy with bullets from my gun in him. Could I be arrested and convicted? Even though I really was justified?

I tell them not not to discourage them from protecting themselves, but for them to understand the law.

[TX_Jim]

[quote=�frankie_the_yankee�]
Jim, if you shoot someone in self defense you are free to argue whatever you feel comfortable with.

But I must say that if I shoot someone in self defense, my attorneys will be arguing that I did not violate the law because my actions were fully justified under the law.[/quote]

Why justify your actions to a jury when you did not violate law? If you did not violate law you would simply say I did not violate law…you would say that I did not draw my weapon…I did not point it at another individual and therefore I did not violate law If you do violate law, you would say I did what I had to do to protect my life.

The code is clear on this. Draw a weapon…and pointing it at another human is against laws. The code does not in any way shape or form say there is an exception to the statute.

[quote=�frankie_the_yankee�]
Where does this come from? I've never heard of a verdict of "guilty but no punishment". Even in insanity cases, the verdict is "innocent by reason of insanity".[/quote]

I never heard or used that phrase either so don’t mis-quote me or put words in my mouth…I stated that there are two verdicts (for this argument anyway) guilty or not-guilty. Guilty or not guilty refers to a crime. A crime by definition has two parts…a violation of law and is punishable….see the definition from Merriam-Webster dictionary. A verdict of not guilty could be returned in this case because the jury feels that the defendant had enough reason to act and therefore should not be punished.

[quote=�frankie_the_yankee�]
Asserting something does not make it so. It seems like you're saying that something is a violation "just because". As Chas has stated, only a jury can decide whether a given act is a violation.[/quote]

No…simply making an assertion does not make it true but I backed my assertion up with research, logic, reasoning, and examples. My logic can be applied to many if not all circumstances and still hold true. Can yours?

Chas is correct and I never said that a jury doesn’t decide if a violation occurred. I said that in order for a jury to return a guilty verdict (that is guilty of a crime) the jury must find that a violation occurred…AND that the defendant deserves to be punished. In a case of self defense, the defendant stipulates…as you put it…the facts…and the jury does not debate or agonize over this part of the crime (by the way, based on the facts it is a violation of statute/law) so the first part of a crime (a violation of law) is met but will determine that the defendant acted reasonably and does not deserve to be punished as a result of the circumstances.

I can here opening arguments now…�Yes my client shot the BG…The prosecution will tell you my client shot the BG. What I am going to tell you is that, if my client had not shot the BG….my client would not be in that chair right now….he would be in a grave.�

[quote=�frankie_the_yankee�]
No. A defendent stipulates to the facts. He does not stipulate he violated the law. You say that only a jury can decide whether some act is a crime. But you seem to leave it to anyone to decide whether a given act is a violation.[/quote]

No…I do not leave it to anyone. Based on the facts of the case, someone drawing and pointing a weapon at another human and because the statute says that by doing so you are in violation…I came to a logical conclusion…and I know that this is not definite until the jury makes a decision. All involved from the police on up to the grand jury are just making assumptions. During the trial, the jury will hear that the defendant in fact drew his weapon and pointed it at the BG…this will not be disputed by the defendant…And by letter of the statute the defendant has violated law. At this point, in this case, the jury is really only considering the circumstances that caused the defendant to act this way. And if those circumstances rise to the level of self-defense than the jury can return a “not guilty� based on their belief that the defendant should not be punished.

[quote=�frankie_the_yankee�]
Saying that some act is a "clear cut violation" of the law is not enough.
[/quote]

I agree…simply saying it is not enough…that is why I backed it up with the actual statute (in previous posts) which show no exceptions for the statute…I clarified that the defendant is going to stipulate the facts and based on the facts and statute…it is a clear cut violation.

[quote=�frankie_the_yankee�]
So someone can stipulate that they pointed and fired their gun. That is a historical fact and if stipulated the jury will accept it as such. But whether or not it was a violation of the law is a judgement that only a jury can ultimately make.[/quote]

I agree…and the jury will see that based on those facts and on statute, that the defendant was in violation…but they will find the defendant not guilty because he had just cause to violate law and act in self-defense…and therefore should not be punished.

I fail to see the major disconnect here. Bottom line…given the scenario in the OP it is assumed that a jury would most likely return a verdict of not guilty and the actor has not committed a “Crime.� But based on the facts, to be stipulated by the defendant, and the unambiguous nature of how the Assault code is written (i.e. no exceptions) it is clear that a violation of the statute occurred.

That being said…had the assault statute said that the exception to the rule is self-defense (which it does not say)…than I would agree that there was no violation of the statute. In reality…one either draws and points resulting in a violation to the letter of the statute….or one does not draw and point and therefore not in violation of statute.

It can be only one or the other.

[TX_Jim]

Frankie;

It is important for students to understand the defense to prosecution.

I start with using a very simple example;

If I walk up and just punch you in the nose, what is that? The class always agrees that it is an assault.

I then change it, and say, "what if FIRST, you grab my shirt, pull your other fist back, and say thru clenched teeth, 'I'm gonna whip your tail.'? Before you can hit me, I punch you in the nose. What is that?"

I then get mixed answers. Most say it is self-defense, and I ask how they know. Seldom do any of them know why, they just "know it". I then tell them that we will learn the law, and apply the scenario in a bit, but for now, did my actions meet the definition of assault. Of course it does.

SO, how can I not be found guilty of assault. We look at 9.02 of the penal code § 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to
prosecution that the conduct in question is justified under this
chapter..

The "conduct in question" is my hitting you in the nose. So, it is a defense to prosecution if my hitting you in the nose was justified by chapter 9.

We then discuss 9.31, and the class decides that my "conduct in question" was justified. The we talk about variables. If there were no witnesses, and you called the police to report an assault, I might very well be arrested and convicted of assault, even though I WAS justified. How? Well, there is your blood on my hand, you have a bloody nose, and you tell the cops I just punched you over a disagreement, and you deny touching me.

However, if there were witnesses or other evidence I might or might not be arrested and charged. I clearly committed the elements of the assault, but the justification is not automatic. I have to be able to prove it.

Then I move to a scenario where a guy appears out of nowhere with a gun, threatens to kill me, and I shoot him. We discuss 9.32 and the class decides I was justified. OK, what if after he goes down he dies, I turn my back on the dude and his partner or someone else takes his weapon. The cops get there and there is no weapon, but there is a dead guy with bullets from my gun in him. Could I be arrested and convicted? Even though I really was justified?

I tell them not not to discourage them from protecting themselves, but for them to understand the law.

You made my whole point for me. A jury may go either way on determining guilt...but the point is...an assault (to the letter of the statute)still occured...which is against the law. A jury may find that your reason for doing so is just and find you not guilty.

[frankie_the_yankee]

Frankie;

It is important for students to understand the defense to prosecution.

I start with using a very simple example;

If I walk up and just punch you in the nose, what is that? The class always agrees that it is an assault.

I then change it, and say, "what if FIRST, you grab my shirt, pull your other fist back, and say thru clenched teeth, 'I'm gonna whip your tail.'? Before you can hit me, I punch you in the nose. What is that?"

I then get mixed answers. Most say it is self-defense, and I ask how they know. Seldom do any of them know why, they just "know it". I then tell them that we will learn the law, and apply the scenario in a bit, but for now, did my actions meet the definition of assault. Of course it does.

SO, how can I not be found guilty of assault. We look at 9.02 of the penal code § 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to
prosecution that the conduct in question is justified under this
chapter..

In the second example, your actions met the definition of assault.

But that is not exactly the same thing as saying that you violated the law, or committed a crime.

Because when the jury (if it goes that far) considers the elements you present in your defense to prosecution, they may well decide that your actions were within the law and find you not guilty.

When more than one section of the law applies, all relevant parts of the law must be considered before a jury can determine if the law has been violated.

At least that's how I see it.

[TX_Jim]

may be this is the disconnect....I have not dfined violation...what is your definition of violation?

[TX_Jim]

Main Entry: 1vi·o·late
Pronunciation: \ˈvī-ə-ˌlāt\
Function: transitive verb
Inflected Form(s): vi·o·lat·ed; vi·o·lat·ing
Etymology: Middle English, from Latin violatus, past participle of violare, from viol- (as in violentus violent)
Date: 15th century
1: break, disregard <violate the law>
2: to do harm to the person or especially the chastity of; specifically : rape 2
3: to fail to show proper respect for : profane <violate a shrine>
4: interrupt, disturb <violate the peace of a spring evening — Nancy Larter>