Brandishing of firearm by licensed holder -- laws in Texas

[Young Gun]

It's murder, but it's justified, at least it would be to you since you protected your life and well being. Now you just have to convince everyone else! Harder than it sounds from what I hear...

 

[txinvestigator]

It's murder, but it's justified, at least it would be to you since you protected your life and well being. Now you just have to convince everyone else! Harder than it sounds from what I hear...

generally if it is clear your actions were justified the police do not arrest, and the Grand Jury does not indict. But the police CAN arrest and you COULD be indicted.

 

[SIG-SOG]

Now I must confess.....all of my original story was true except that the 3 hoodlums never really came that close to us. However, it did make me think about what I might do if the situation were as I posted it. Sorry for misleading everyone, but I thought it would be an interesting, and not farfetched, possible scenario for discussion. What prompted me to post the scenario was after reading a thread on another forum (sorry, I'm not sure how to insert a link, but here goes) It happened to me, Carry stories - Page 5 - THR that may be of interest to some of the members here. Maybe not. Anyway, thank you for all the responses and wisdom. Would anyone here be interested in having a similar thread going here similar to the one on the link I pasted? I really wonder if people getting their CHL really really understand what they are taking on? I do plan to take the CHL course sometime next year, but I haven't yet convinced myself that I will actually carry.

 

[Big country]

Well. I think it's a likely scenario but still if you think you're in danger but you can drive away then drive away. There is no point in standing your ground and then when it is to late drawing and firing a weapon. Because if you could have left and didn't then you were not forced to use deadly force you chose to use deadly force. At least that's how the DA will paint it.

 

[okie556]

Next time just post a scenario and leave out all the bull shit that it really happened to you. You would have gotten the same answers!

 

[txinvestigator]

Now I must confess.....all of my original story was true except that the 3 hoodlums never really came that close to us. However, it did make me think about what I might do if the situation were as I posted it. Sorry for misleading everyone, but I thought it would be an interesting, and not farfetched, possible scenario for discussion. What prompted me to post the scenario was after reading a thread on another forum (sorry, I'm not sure how to insert a link, but here goes) It happened to me, Carry stories - Page 5 - THR that may be of interest to some of the members here. Maybe not. Anyway, thank you for all the responses and wisdom. Would anyone here be interested in having a similar thread going here similar to the one on the link I pasted? I really wonder if people getting their CHL really really understand what they are taking on? I do plan to take the CHL course sometime next year, but I haven't yet convinced myself that I will actually carry.

I use a similar scenario in my CHL classes; but I have 3 versions of it I use to illustrate different laws in chapter 9 and the mental aspects of deciding to use deadly force. It is a PITA to write out, but if I get some motivation (read: major caffeine) later I might. It always makes great discussion.

 

[Texican Scotty]

This is why I love this site!

 

[Skip]

I use a similar scenario in my CHL classes; but I have 3 versions of it I use to illustrate different laws in chapter 9 and the mental aspects of deciding to use deadly force. It is a PITA to write out, but if I get some motivation (read: major caffeine) later I might. It always makes great discussion.

If you ever write it out, can you do it in it's own thread, so I don't miss it?

 

[txinvestigator]

If you ever write it out, can you do it in it's own thread, so I don't miss it?

Sure. I think I have it somewhere already..............

 

[Big country]

It sounds like it would be a helpful bit of script.

 

[Dallas239]

That is exactly what I meant. Read the murder law. If you intentionally or knowingly cause the death of another, it is murder.




No where in there is there an exception for when a person tries to stab you, is there? It is important to know, that in the penal code chapter 9 tells you when conduct that is otherwise illegal would be justified. However, ALL justification in chapter 9 is a defense to prosecution, meaning you have to PROVE that your conduct met the justifications.



The prosecution has to prove that you caused the death of another; he does not have to negate the defense you might have in chapter 9.


The burden of proof for self defense is on the person claiming self defense.

It's not murder if you were justified, hence the defense to prosecution. And the defendant need merely make out a prima facie case that the defense applies, and once he has done so, in order to get a conviction, the prosecutor must remove all reasonable doubt. See chapter 2 of the Texas Penal Code.

Just my $.02

 

[txinvestigator]

It's not murder if you were justified, hence the defense to prosecution. And the defendant need merely make out a prima facie case that the defense applies, and once he has done so, in order to get a conviction, the prosecutor must remove all reasonable doubt. See chapter 2 of the Texas Penal Code.

Just my $.02

That is incorrect. It is still murder, or what some call justifiable homicide. You still committed the homicide though. If you were justified under chapter 9, then you have a defense that allows the jury to find you not guilty. In fact, if the jury has reasonable doubt about your defense, then they are instructed to acquit. However, the prosecution does not even have to negate the


If you read the definition of a "defense to prosecution" then you will see three points. The issue of the defense is not allowed unless there is evidence supporting the defense. The prosecutor is not required to negate the existence to the defense. And reasonable doubt requires an acquittal.

Prima Facie is not the standard

All the prosecution has to do is prove that you committed the elements of the crime, in this case murder. That is typically very easy in a self defense case.

Once the prosecution rests, then your defense will present your defense to prosecution case.

 

[Dallas239]

That is incorrect. It is still murder, or what some call justifiable homicide. You still committed the homicide though.

Homicide just means you killed another person. Not all homicides constitute an offense under the penal code, and not all criminal homicides constitute the offense of murder. In fact, the penal code does not define homicide, it only defines criminal homicide. If you only read section 19.01, you might think that any time a person intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual, he is guilty of an offense, but that isn't true. "Justifiable homicide" is not even unlawful as that term is defined in the penal code.

If you were justified under chapter 9, then you have a defense that allows the jury to find you not guilty. In fact, if the jury has reasonable doubt about your defense, then they are instructed to acquit. However, the prosecution does not even have to negate the

If you read the definition of a "defense to prosecution" then you will see three points. The issue of the defense is not allowed unless there is evidence supporting the defense. The prosecutor is not required to negate the existence to the defense. And reasonable doubt requires an acquittal.

If I introduce evidence on all the elements of self defense, the prosecutor certainly does need to negate it. That's what it means to say that reasonable doubt requires an acquittal. The Constitution requires no less.

Prima Facie is not the standard

All the prosecution has to do is prove that you committed the elements of the crime, in this case murder. That is typically very easy in a self defense case.

Once the prosecution rests, then your defense will present your defense to prosecution case.

Prima facie just means that I have introduced some evidence on each element. Here's what the penal code says about defenses:

Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.

IOW, lack of a defense is not an element of the indictment, but once I've made a prima facie case of the defense, the prosecutor must prove beyond a reasonable doubt that it does not apply. If a defense amounting to a complete justification applies, you are not guilty of the offense.

The term "burden of proof" can be confusing because there are different concepts that generally get lumped together under that general heading, and some burdens shift between the prosecution and the defendant, such as here, the burden of going forward which may shift to the defendant after the prosecution makes its prima facie case, and then may shift back to the prosecution after the defense makes out a case for self-defense (or some other justification or defense).

 

[txinvestigator]

Homicide just means you killed another person. Not all homicides constitute an offense under the penal code, and not all criminal homicides constitute the offense of murder. In fact, the penal code does not define homicide, it only defines criminal homicide. If you only read section 19.01, you might think that any time a person intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual, he is guilty of an offense, but that isn't true.

I never said it was. What I said was that you committed the elements of the offense.

If I introduce evidence on all the elements of self defense, the prosecutor certainly does need to negate it. That's what it means to say that reasonable doubt requires an acquittal. The Constitution requires no less.

He does not have to negate it, it says so in the definition of the defense. You submit your evidence of the defense, and the JURY decides if there is reasonable doubt on it.

Prima facie just means that I have introduced some evidence on each element.

I know what prima facie means, and it does not mea you have introduced some evidence on each element. It means "on first appearance". Prima Facie is not suficient for an acquittal in a defense to prosecution.

If Prima Facie was enought to make the justification chapter 9 then 9.02 might read; It is a prima facie case if the conduct in question is justified under this chapter.

IOW, lack of a defense is not an element of the indictment, but once I've made a prima facie case of the defense, the prosecutor must prove beyond a reasonable doubt that it does not apply. If a defense amounting to a complete justification applies, you are not guilty of the offense.

No, a prima facie case is not necessarily sufficient. YOU must submit evidence that you met the defense. The jury will decide if there is reasonable doubt on the issue of the defense. The prosecution need do nothing.

The term "burden of proof" can be confusing

I am certainly aware of what "burden of proof" means.

 

[Big country]

TI was right the first time. If you kill some one, self defense or not you have still committed murder. The self defense thing just comes about after the trigger is pulled. It is a defense TO prosecution not a defence FROM prosecution.

 

[Dallas239]

I never said it was. What I said was that you committed the elements of the offense.

You said, "If a person tries to stab you and you shoot them and they die, the violation is murder." Murder is an offense defined by the penal code. If you kill someone in self-defense (as defined by the code) you aren't guilty of murder. You may have satisfied all the elements of murder, but if you have also satisfied all of the elements of self-defense, you haven't committed murder.

He does not have to negate it, it says so in the definition of the defense.

It says he doesn't have to negate it in the charging instrument (read, indictment). It also says that once you've made out a prima facie case, the prosecutor has to prove beyond a reasonable doubt that it doesn't apply.

I know what prima facie means, and it does not mea you have introduced some evidence on each element.

Here's one explanation of prima facie case. Yes, that's basically what it means.

If a defendant introduces evidence on every element of self-defense, and the prosecution introduces no evidence to contradict it, there can be no conviction. Compare the definitions in the penal code of "defense" and "affirmative defense."

Happy New Year.

 

[usaf_vito]

This is way off the current train of thought, but is there a penalty if your CCW prints or comes exposed? If I were wearing a belt slide with a jacket and I bent over and the barrel showed at the bottom, or if an IWB prints at certain angles, could I be charged/cited for disorderly conduct or whatever it is?

 

[SIG-SOG]

Great follow up post/question - about printing. I also would like to know if "printing" would result in a violation of the law. On a related note, I have a Collosus Versipak from Maxpedition that is marketed as a concealed carry type of bag (no not a man purse). While not probably known by a great number of people, if I saw someone, say at a mall or wherever, with one of these bags I could infer he carries. Isn't that the same or at least similar to printing?

 

[Texas Solo]

I was in a simular situation once. I was sititing in a parking lot eating lunch on my break. Scumbag looking dude with hoodie and one hand in the front pocket comes walking from a distance straight for me. I had my gun in the console. Scumbag has that one hand in the hoodie pocket, in my mind, to insinuate he has a weapon. I had time....I started the engine and gently drove off. He changed direction, so I firmly believe I avoided a bad situation in the best manner.

 

[Texasjack]

Your most important weapon is your brain, not your gun. Bad guys are lazy - they look for easy targets. They may have been checking you out, but could see you were watching for them.