TexasCHLforum.com

seamusTX wrote:

Liko81 wrote:Also, drawing a weapon is considered use of force other than deadly force in the state of Texas. It is therefore justified whenever such force would otherwise be justified; ...

I don't think that's true when it comes to CHLs not on their own property.

Please consider this law:

PC §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.

(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.

I know of two cases where CHL holders have been prosecuted under this law. One was a road-rage incident where the other driver had not threatened the life of the CHL holder. The other involved kids who were banging on the CHL holder's vehicle while the CHL holder was inside.

- Jim

Well, there's also this one:

§ 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.

So by drawing, you are threatening the use of deadly force, which is justified whenever you would be justified under Chapter 9 in using force other than deadly force. My read, given Sec 9.02 ("It is a defense to prosecution that the conduct in question is justified under this chapter") is that even though there is a specific justification under 46.035 for this case, 9.04 also applies in general and does not become unavailable because something else is mentioned as a defense, even if the something else is similar but more restrictive. The law as read would have to specifically exclude other justifications under Chapter 9 for them not to apply. Any other reading makes having a CHL no different than being unlicensed; either way, if you draw on someone without justification for use of deadly force, you are guilty of a Class A misdemeanor.

The question which probably led to prosecution, which would be totally reasonable to ask in both of your cases, is whether use of force was justified. Was the road-rager advancing on the shooter in a way that put the shooter in fear of bodily injury (which justifies the threeat of force by necessity, but not deadly force)? Were the kids attempting to deprive the person of his car by stealing or destroying it (and thus makes defense of property legal)?

§ 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person
in lawful possession of land or tangible, movable property is
justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to
prevent or terminate the other's trespass on the land or unlawful
interference with the property.

The question would be if "unlawful interference with property" includes criminal mischief (my read is yes), and if the kids' banging on the car did in fact damage the car or cause "substantial inconvenience" to the owner which would be criminal mischief in the first place (a question of fact for a jury; to trial we go). And of course, if there were provocation by the defendant in either case, justification is probably not going to be successful as a defense. Another question of fact for a jury. Thus I think the reason the crimes were prosecuted were not because the actor was not justified under Sec 46.035, but because the actor MAY be justified under Ch 9, but must assert the defense and present the evidence of same to the jury. The actor or his lawyer MAY have tried to convince the DA not to prosecute, but if the DA thinks he's got a case, or is being leaned on to prosecute, he'll give it to the jury.

OverEasy wrote:6'4", 185 lbs. might be big in France, but here in Texas they would call you "Slim". You'll need another 100 lbs. to get into the 'Big Guy' league here.
You can't draw on words alone. When a weapon is produced, then the threat becomes deadly.

Don't worry, you'll put on some weight when you get here, the food is better in Tx.
Regards, OE

The statement in bold is incorrect. You are justified in using deadly force to prevent the commission of robbery or aggravated robbery. "Give me your money" is an announcement of robbery. If you believe that announcement was made seriously, you are justified in drawing and firing.

Also, drawing a weapon is considered use of force other than deadly force in the state of Texas. It is therefore justified whenever such force would otherwise be justified; i.e. if you could pepper-spray an attacker you can draw on him. Now, this can actually put you at a disadvantage, because you cannot fire your weapon until the threat becomes deadly or the BG acts in a way that a reasonable person would conclude is an immediate threat of one of the crimes that justify deadly force. Thus, the BG can thus maneuver, walk away calmly, or stall for time and you cannot prevent such action. You also should not put the gun down until the threat is gone, because the distraction of reholstering gives the BG ample opportunity to go for his own gun; once you draw, therefore, all your cards are on the table.