Deadly Force discussion; Part 2 TPC 9.02

[txinvestigator]

I think this is the most misunderstood section dealing with Use of Force in Texas.

9.02 sets out how use of force justification is applied in Texas.

§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" refers to the use of fore that one would apply to protect oneself. For instance, if I walk up and without any prior provication I strike Bob in the face, that is an assault. It is assault because it meets the definition of the assault statute.

If; however, Bob first grabs my shirt, pulls his fist back and states thru clenched teeth and a tightned jaw, "I am going to kick your tail (edited for 10 year-olds), and I am able to first strike Bob in a the face and break away............ my striking Bob in the face is STILL an assault.

What we want to know if that assault was justified under the law. The "conduct in question" in that scenario is my striking Bob. We want to know if that was justified. I am not going to get into that here.

As we all know, at a trial for striking Bob, the prosecution must prove, beyond a reasonable doubt, that I committed an assault. Lets see, his blood is on my palm, he has a bloody nose.....pretty easy.

I then have to prove, beyond a reasonable doubt, that "the conduct in question", in this case striking Bob in the nose, was justified under chapter 9. We will explore that later.

Lets look at the definition of "a defense to prosecution"

§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.

It is a Defense TO Prosecution, not a Defense FROM Prosecution. You must prove, beyond reasonable doubt, that your conduct or use of force was justified.

If a person dies from my use of deadly force (called a homicide), a Grand Jury is going to hear the case. This could happen with or without my being arrested or charged with the homicide.

In any case of use of force, you CAN be arrested and charged with the assault. Ultimately, a jury or Grand Jury will determine if your "conduct in question" was "justified under chapter 9". Sometimes, if it is CLEAR that the use of force was justified no criminal action is taken against the person.

It is important to remember; though, that criminal action CAN be taken, and it will be up the the individual to prove justifcation.

Bottom line, if you use deadly force the best case scenario is a referral t the Grand Jury and a No-Bill. Worst case is you get arrested at the scene, charged, indicted and convicted.

I certainly would not allow my use of deadly force case go to the grand jury without hiring an attorney. Perhaps Charles can shed some light on the cost to me to hire him to defend me just to the Gramd Jury.

Considering the possible criminal liability, wouln't you agree that Deadly Force should be used as a LAST RESORT?

[flintknapper]

. For instance, if I walk up and without any prior provication I strike Bob in the face, that is an assault. It is assault because it meets the definition of the assault statute.

If; however, Bob first grabs my shirt, pulls his fist back and states thru clenched teeth and a tightned jaw, "I am going to kick your tail (edited for 10 year-olds), and I am able to first strike Bob in a the face and break away............ my striking Bob in the face is STILL an assault.
?

Technically, if you walk up on Bob and strike him without prior threat or other indication, then you have committed a Battery.

When Bob grabs your shirt, that is also a Battery. When Bob threatens you (verbally or otherwise and has the immediate capacity to carry out that threat) then that is an Assault.

Most often, we see a "battery" occur at the tail end of an "assault", but there are many different ways to incur either, and several types of Assaults, and also Battery. Never simple.

Nonetheless, I see where you're going with this. Should be interesting.

[txinvestigator]

. For instance, if I walk up and without any prior provication I strike Bob in the face, that is an assault. It is assault because it meets the definition of the assault statute.

If; however, Bob first grabs my shirt, pulls his fist back and states thru clenched teeth and a tightned jaw, "I am going to kick your tail (edited for 10 year-olds), and I am able to first strike Bob in a the face and break away............ my striking Bob in the face is STILL an assault.
?

Technically, if you walk up on Bob and strike him without prior threat or other indication, then you have committed a Battery.

When Bob grabs your shirt, that is also a Battery. When Bob threatens you (verbally or otherwise and has the immediate capacity to carry out that threat) then that is an Assault.

Most often, we see a "battery" occur at the tail end of an "assault", but there are many different ways to incur either, and several types of Assaults, and also Battery. Never simple.

Nonetheless, I see where you're going with this. Should be interesting.

There is no such animal as Battery in Texas.

It is all assault. Where did you move from?

http://www.capitol.state.tx.us/statutes/pe.toc.htm See title 5

[one eyed fatman]

As a security guard I was told if I touch anyone anywhere but the waistline (for a search) then I can be arrested for assault.

[flintknapper]

. For instance, if I walk up and without any prior provication I strike Bob in the face, that is an assault. It is assault because it meets the definition of the assault statute.

If; however, Bob first grabs my shirt, pulls his fist back and states thru clenched teeth and a tightned jaw, "I am going to kick your tail (edited for 10 year-olds), and I am able to first strike Bob in a the face and break away............ my striking Bob in the face is STILL an assault.
?

Technically, if you walk up on Bob and strike him without prior threat or other indication, then you have committed a Battery.

When Bob grabs your shirt, that is also a Battery. When Bob threatens you (verbally or otherwise and has the immediate capacity to carry out that threat) then that is an Assault.

Most often, we see a "battery" occur at the tail end of an "assault", but there are many different ways to incur either, and several types of Assaults, and also Battery. Never simple.

Nonetheless, I see where you're going with this. Should be interesting.

There is no such animal as Battery in Texas.

It is all assault. Where did you move from?

http://www.capitol.state.tx.us/statutes/pe.toc.htm See title 5

Moved to where I am now from Austin (if that makes a difference).

I think you just didn't look hard enough: http://www.weblocator.com/attorney/tx/l ... #txc190000

I probably should tell these guys (and few hundred others) that theres no such thing as battery. http://www.assaultlawyerhouston.com/default.asp?

Its not my intent for this to become an argument, I hope you didn't take it that way.

Please lead on, I believe you're heading somewhere worthwhile.

[txinvestigator]

. For instance, if I walk up and without any prior provication I strike Bob in the face, that is an assault. It is assault because it meets the definition of the assault statute.

If; however, Bob first grabs my shirt, pulls his fist back and states thru clenched teeth and a tightned jaw, "I am going to kick your tail (edited for 10 year-olds), and I am able to first strike Bob in a the face and break away............ my striking Bob in the face is STILL an assault.
?

Technically, if you walk up on Bob and strike him without prior threat or other indication, then you have committed a Battery.

When Bob grabs your shirt, that is also a Battery. When Bob threatens you (verbally or otherwise and has the immediate capacity to carry out that threat) then that is an Assault.

Most often, we see a "battery" occur at the tail end of an "assault", but there are many different ways to incur either, and several types of Assaults, and also Battery. Never simple.

Nonetheless, I see where you're going with this. Should be interesting.

There is no such animal as Battery in Texas.

It is all assault. Where did you move from?

http://www.capitol.state.tx.us/statutes/pe.toc.htm See title 5

Moved to where I am now from Austin (if that makes a difference).

I think you just didn't look hard enough: http://www.weblocator.com/attorney/tx/l ... #txc190000

I probably should tell these guys (and few hundred others) that theres no such thing as battery. http://www.assaultlawyerhouston.com/default.asp?

Its not my intent for this to become an argument, I hope you didn't take it that way.

Please lead on, I believe you're heading somewhere worthwhile.

I can see this is going to get derailed, but thats OK for purposes of this discussion.

There may be battery in CIVIL law; however, there is NO battery in Texas. If you look in the penal code and find it, I'll concede. ;)


Texas Penal Code
§22.01. Assault.

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily
injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with
imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with
another when the person knows or should reasonably believe that the
other will regard the contact as offensive or provocative.


As you can see, that covers what other states call both assault and battery. In Texas it is all covered under the assault statute. The penalties are different.

[txinvestigator]

As a security guard I was told if I touch anyone anywhere but the waistline (for a search) then I can be arrested for assault.

As you can see from by previous post, it would depend upon the nature of the touch. And being told that the waistline was "Kings X" was false information to you.

[one eyed fatman]

So who can I believe? You? Me? The instructors of the guard class? Or no one? My votes going for no one.

No one knows the law till it goes to court. And even they don't know it till they make something up.

Did you know Joey's cousin is a judge?

[jbirds1210]

Go out and do some research.....it is best to know what the law is, especially in your profession. You don't want to end up in jail yourself. The law is accessible to you. Visit the library and some reputable internet sites. There are even a few good lawyers on the forums....just know who they are
Jason

[one eyed fatman]

Sounds like good advice to me.

[txinvestigator]

Sounds like good advice to me.

Are you still in Security? I am a TDPS PSB combined level 3 instructor also. If I can help you at all let me know.

[one eyed fatman]

Anyplace on the net I can lookup security rules and reg's?