Texas PC Sectino 9.04.2 and the McDermott decision

[DoubleActionCHL]

This is primarily directed at Charles, but anyone with reliable information on the subject is welcome to to chime in.

A few years ago, Charles posted a comprehensive explanation of the apparent ambiguities of TPC Section 9.04.2 (The threat of force is justified when the use of force was justified), versus the McDermott decision which essentially states that a threat of deadly force (not force) is a defense to prosecution for "intentionally failing to conceal."

The old thread, for your reference:
http://www.texasshooting.com/TexasCHL_F ... +mcdermott" onclick="window.open(this.href);return false;

My question:

Has there been any progress in this area? Has anything changed, or are we still stuck with "If you can't shoot it, don't show it?"

Thanks,
Tracy

[mr.72]

I wasn't around for this original thread and I am only now reading it (haven't read the whole thing).

But I think "if you can't shoot it, don't show it" is at odds with the letter of the law. However it doesn't look like that was the primary issue in this case, at least to me.

My reading of the McDermott case info from the thread, however, shows that the proposed facts from McDermott's side are not entirely plausible. I suspect the real reason that the jury decided the way they did is because they didn't believe McDermott's version of the story, regardless of his wife's corroboration.

[LedJedi]

i'd be interested to see what charles has to say about this as well.

[Charles L. Cotton]

I wasn't around for this original thread and I am only now reading it (haven't read the whole thing).

But I think "if you can't shoot it, don't show it" is at odds with the letter of the law. However it doesn't look like that was the primary issue in this case, at least to me.

My reading of the McDermott case info from the thread, however, shows that the proposed facts from McDermott's side are not entirely plausible. I suspect the real reason that the jury decided the way they did is because they didn't believe McDermott's version of the story, regardless of his wife's corroboration.

Tracy:
The Code has not been changed to address this case, nor is there another case on point of which I'm aware. I'll do some research when I get time; i.e. after retirement!

The judge refused to instruct the jury on "Threats as Justifiable Force" under TPC §9.04, so the jury had no opportunity to consider that defense. Plus, the appellate court looked only to the defense set out in TPC §46.035(h) utterly ignoring TPC §9.04. This case should have been appealed to the Texas Court of Criminal Appeals, but that costs money and I have no idea if the McDermott's were financially able to do so.

Chas.

(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. (Emphasis added.)

[Charles L. Cotton]

Tracy:
I'm glad you posted this thread. I read the court's opinion again and I forgot how markedly different the "factual" testimony was compared to the "unofficial" version of the story. Regardless of the underlying facts, the Court's opinion in the below-quoted passage is what is incorrect and problematic for CHLs as it ignores TPC §9.04.

Chas.

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; . . .

[DoubleActionCHL]

Thanks for revisiting this with me. This has been a sticking point with me ever since I attended your Deadly Force Seminar some years ago.

The appellate decision you posted appears (to my feeble, non-attorney brain) to say that the court recognizes that the statutes are in conflict, that there is sufficient reason to conclude that the initial ruling was in error, but they're going to support it anyway. Am I reading that correctly?

[Charles L. Cotton]

Thanks for revisiting this with me. This has been a sticking point with me ever since I attended your Deadly Force Seminar some years ago.

The appellate decision you posted appears (to my feeble, non-attorney brain) to say that the court recognizes that the statutes are in conflict, that there is sufficient reason to conclude that the initial ruling was in error, but they're going to support it anyway. Am I reading that correctly?

Unfortunately, I think the McDermott Court completely missed the issue. It focused solely on TPC §46.035(h) and held that the only time a CHL could intentionally fail to conceal is when they would be justified in actually using (as opposed to threatening) deadly force. This case becomes even more egregious with passage of the Motorist Protection Act in 2007, since a non-CHL cannot be convicted of a violation of TPC §46.035(a). Thus a non-CHL has another legal tool at their disposal to diffuse a potentially deadly confrontation that is not available to a CHL. (By no means am I suggesting that people should be quick to draw, show, or point their handgun at someone with the intent of relying upon TPC §9.04. That provision is still untested in the Texas appellate courts.)

McDermott is a terrible case, but it is probably a good example of the old lawyers' saying that "bad facts make bad law." This is also a good example why one should be very careful in choosing what cases to take up on appeal. If the court doesn't like your client, there's a good chance you won't like their decision.

Chas.

[mr.72]

This seems to clearly indicate that TPC §46.035(a) and TPC §9.04 are in conflict, and the court has demonstrated the willingness to arbitrarily throw out one or the other as it sees fit.

Regardless of what the law currently says, it seems awfully strange that we have a set of laws that restrict the behavior of someone with a CHL but do not apply if you do not have a CHL.

[DoubleActionCHL]

This seems to clearly indicate that TPC §46.035(a) and TPC §9.04 are in conflict, and the court has demonstrated the willingness to arbitrarily throw out one or the other as it sees fit.

Regardless of what the law currently says, it seems awfully strange that we have a set of laws that restrict the behavior of someone with a CHL but do not apply if you do not have a CHL.

Not strange, at all. The requirement to display is another example.

Section 46.035 seems to have been written rather haphazardly. They various sporting events, for example; it seems odd that restrictions begin with high school sporting events. The fact that these events are also schooled sponsored activities and, therefore, covered by 46.03 seems to have been ignored. The "no legal limit for determining intoxication" leaves much to the discretion of the arresting officer, creating an opportunity for mistakes or abuse. This requirement, to my knowledge, does not apply to the unlicensed individual carrying under 46.02.

[mr.72]

Not strange, at all. The requirement to display is another example.

By "strange" I didn't mean "uncommon" in the law. Grr. Again my imprecise language gets me into a pickle

I mean "nonsensical".

If we already have laws on the books governing the demonstration of a weapon in order to provide the threat of deadly force, then there is absolutely no purpose to an "intentional failure to conceal" restriction which is not merely a reference to the prior law.

It actually kind of seems like whoever wrote 46.035 didn't even know what was contained in ch. 9.

[Originalist]

This seems to clearly indicate that TPC §46.035(a) and TPC §9.04 are in conflict, and the court has demonstrated the willingness to arbitrarily throw out one or the other as it sees fit.

Regardless of what the law currently says, it seems awfully strange that we have a set of laws that restrict the behavior of someone with a CHL but do not apply if you do not have a CHL.

Not strange, at all. The requirement to display is another example.

Section 46.035 seems to have been written rather haphazardly. They various sporting events, for example; it seems odd that restrictions begin with high school sporting events. The fact that these events are also schooled sponsored activities and, therefore, covered by 46.03 seems to have been ignored. The "no legal limit for determining intoxication" leaves much to the discretion of the arresting officer, creating an opportunity for mistakes or abuse. This requirement, to my knowledge, does not apply to the unlicensed individual carrying under 46.02.

There is no "legal limit" for determining any intoxication for anything (carrying, driving, boating, etc). The 0.08 comes into play as "per se" (meaning in and of itself). Basically if I (the officer) can prove you did not have normal use of your mental and physical capacities as a result of the introduction of alcoholic beverages or drugs (regardless of what your blood or breath alcohol concentration is....0.04, 0.02 or 0.20). So even if you walk, talk and drive normal if your blood or breath alcohol concentration is above 0.08 then you are presumed intoxicated. making it illegal "in and of itself"

[DoubleActionCHL]

There is no "legal limit" for determining any intoxication for anything (carrying, driving, boating, etc). The 0.08 comes into play as "per se" (meaning in and of itself). Basically if I (the officer) can prove you did not have normal use of your mental and physical capacities as a result of the introduction of alcoholic beverages or drugs (regardless of what your blood or breath alcohol concentration is....0.04, 0.02 or 0.20). So even if you walk, talk and drive normal if your blood or breath alcohol concentration is above 0.08 then you are presumed intoxicated. making it illegal "in and of itself"

I understand this. My point was that the unlicensed citizen carrying a loaded handgun in his vehicle under Section 46.02 is not subject to the same standard as the CHL holder under Section 46.035. It also means that the state of intoxication or impairment for a CHL holder is completely subjective.

[Originalist]

I disagree, it is not subjective. It is based on objective observations. The same objective standards that apply to DWI (Vehicle and Boat, etc) and the use of scientifically proven tests (NHTSA Standardized Field Sobriety Tests) and the individuals performance based on a set of observable criteria proven along with those tests.

However I do agree there are added requirements, penalties, etc CHL holders are liable for... most times are unjust or unfair...

[DoubleActionCHL]

I disagree, it is not subjective. It is based on objective observations. The same objective standards that apply to DWI (Vehicle and Boat, etc) and the use of scientifically proven tests (NHTSA Standardized Field Sobriety Tests) and the individuals performance based on a set of observable criteria proven along with those tests.

However I do agree there are added requirements, penalties, etc CHL holders are liable for... most times are unjust or unfair...

Observations are inherently subjective, which is why DWI charges are supported by quantifiable evidence.

[Keith B]

Observations are inherently subjective, which is why DWI charges are supported by quantifiable evidence.

Actually, quantifiable evidence does not really have to be there. In Texas there is NOT a legal limit for DWI. TPC 49.01 (2) states:
"Intoxicated" means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.

.08 is the BAC standard, but the statute states that 'any impairment' can be justifiable to charge someone with DWI (not to be confused with DUI in Texas which is only for someone under the age of 21 and the 'zero tolerance law of NO alcohol in system.)

It is purely at the discretion of the officer if he believes he has probable cause due to a perceived impairment to make the arrest.

Impairment starts the minute you take a drink. It may be small enough to not visibly affect you, but even small amounts of intoxicants introduced into the system impact motor skills and decision making. Some folks handle it better than others. I know people who are basically tee-totalers that one small glass of wine or champagne and they are tipsy and feeling it.