Attempted Carjacking ...

[Liko81]

drawing your weapon is typically the same as the use of deadly force. if you are justified to use deadly force, you are justified to use deadly force. if you are justified to draw, you are justified to fire. I don't think there is a distinction. perhaps a lawyer will chime in.

TPC § 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.

If you draw with the intention of shooting, that is the use of force. It is not deadly force until you pull the trigger. IANAL but this seems pretty cut and dried.

Hmm. it's seemed like we were moving to a consensus that deadly force would be justified, and then Liko throws us a bone :) Given what I've read of Liko's posts, I respect his opinion with regard to the law. Let me ask you this. PC 9.04 says that "as long as the actor's purpos is limited to creating an apprehension that he will use deadly force", then that does not constitue deadly force. If I translate that into layman's terms, if all he is trying to do is to make you think wil use deadly force, but does not intend to, then that does not constitue use of deadly force on my part. The question I have is how does a jury determine if he was faking it and never intended to use deadly force, versus determining that he did intend on using deadly force?

I disagree with your interpretation (respectfully of course ). The clause in question is: "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...". So, you feel in danger for your life and you draw. Whether you intend to warn the other guy or not, by drawing and holding on the BG without firing, you are warning him you will fire if you are forced to defend youself (creating the aforementioned apprehension). If that is sufficient to end the threat, you have used force, but not deadly force. You are justified based on necessity and self-defense in using force other than deadly force in most situations where the result would otherwise have been significant and unlawful personal loss or injury.

The line is crossed, and the threat DOES count as use of deadly force, when the weapon is produced to create an apprehension other than "I will defend myself if necessary". Such apprehensions are generally heralds of a violent felony. "Give me your money or I will shoot you", "Get in my car or I will shoot you", or "I am going to shoot you because I feel like it" are all examples of apprehensions created that, because they do not meet the limitation (it is NEVER considered "necessary" at law to use force to commit a crime unless the criminal act was somehow justifiable), DO constitute use of deadly force because of the threat of same. Similarly, "I am a bad boy, don't start $#%* with me" does not count as creating an apprehension that you will use force if necessary.

[DoubleJ]

right, so is there a difference between the justification for the threat of deadly force, and deadly force itself?

yes.
The THREAT of Deadly Force is simply FORCE.
However if you pull that trigger it becomes DEADLY FORCE.

[DoubleJ]

- so it seems that the threat of deadly force is the same (in terms of whether you are justified to do so) as the use of deadly force.

no.
you can be justified in THREATENING deadly force, so long as that's where it stops. if the perp changes courses, and then you are justified in DEADLY FORCE, then you may proceed.

instance: (and yes, this happened) a Guy is taking a baseball bat to your car, middle of the day. you go out, and threaten deadly force. he doesn't stop (still only justified to use force), and now comes at you with the bat.
The moment he turned on you with the bat, he committed an illegal imminent commission of Deadly Force, at which time you are justified in using Deadly Force as self defense.

got it?

Force and Deadly Force are two different things. Threatening Deadly Force is only Force if it stops at just a threat.

[mr.72]

Well this debate hinges on the presumption that "threat to cause death or serious bodily injury by the production of a weapon..." is defined as "force" or "threat of force", and not "deadly force".

However I can find nowhere in these sub-sections where it is clearly defined. We simply have the definition that the "threat to cause death..." does not constitute the use of deadly force, without any definition of what it does actually constitute. We are presuming it constitutes "FORCE" as someone else mentioned, but it is nowhere clearly defined as such that I can find.

Also reasonably the "threat to cause death..." might lead to a situation that results in justification for the use of deadly force, such as in the baseball bat to the car idea. If you had not presented the weapon, then perhaps the slugger would not have come at you with the bat.

I think this is a gray area at best.

[boomerang]

You don't seem to want to believe what's posted here. Maybe you should spend a few dollars and get legal advice from a lawyer you trust.

[mr.72]

hey boomerang this is not a personal thing. I am reading the code same as you. I would like to understand it.

[boomerang]

Honestly, sometimes it's worth paying a lawyer for their perspective.

Having said that, can we all agree that "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" for this discussion?

Can we all also agree that the guy smashing your car with a baseball bat can't claim self defense because he was "engaged in criminal activity" more serious than a traffic violation, specifically criminal mischief?

[mr.72]

Honestly, sometimes it's worth paying a lawyer for their perspective.

well certainly if I find myself arrested for SD, I will. However I figure having a discussion about this topic on the TexasCHLforum is a good way for more people than just those who have consulted a lawyer to be informed about it.

Having said that, can we all agree that "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" for this discussion?

Sure, that's clear. What's not clear is exactly what is "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" in the terminology of the penal code, and therefore, what situations or conditions justify the use of "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". I thought that's one thing we were discussing.

[DoubleJ]

Well this debate hinges on the presumption that "threat to cause death or serious bodily injury by the production of a weapon..." is defined as "force" or "threat of force", and not "deadly force".

§ 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.

*They could have just said "A threat of Deadly Force" rather than that whole sentence.

However I can find nowhere in these sub-sections where it is clearly defined. We simply have the definition that the "threat to cause death..." does not constitute the use of deadly force, without any definition of what it does actually constitute. We are presuming it constitutes "FORCE" as someone else mentioned, but it is nowhere clearly defined as such that I can find.

Also reasonably the "threat to cause death..." might lead to a situation that results in justification for the use of deadly force, such as in the baseball bat to the car idea. If you had not presented the weapon, then perhaps the slugger would not have come at you with the bat.

I think this is a gray area at best.

I'm not sure I know what definition you're looking for, but here goes.

if you can use Force, which physical stuff, they laying of hands, and so forth, THEN you can use the THREAT of FORCE.
If you can use Force, you MAY or MAY NOT be able to use DEADLY FORCE. You can use the THREAT of DEADLY FORCE only if it is limited to just being a threat.

what is a threat? anything where you give that person the idea that you are going to do what you are saying you're going to do.
If it does not constitute Deadly Force, then it must be simple Force.
in my example, the guy with the bat, when faced with the lawful threat of DF, he could of just put his bat down.
whereas, if the actor had gone out, unarmed, the crook would have seen no threat, and could have had his way with the "victim."

that make any sense? If I'm not addressing your question properly, lemmeh know.

[mr.72]

*They could have just said "A threat of Deadly Force" rather than that whole sentence.

Yes, they could have. But they did not in fact say that. Also there is no other reference to the "threat of deadly force" in the code that I can find, at least not in these sections.

I'm not sure I know what definition you're looking for, but here goes.

Well no offense, but while I agree with your opinion, I was looking for some legal definition that's outlined in the penal code.

you MAY or MAY NOT be able to use DEADLY FORCE. You can use the THREAT of DEADLY FORCE only if it is limited to just being a threat.

Of course, that is clear. However what is whether there is any circumstance, which can be identified in the penal code, whereby you would be justified to use the "threat of deadly force", while not at the same time being justified in using "deadly force".

Since I seem to be unable to articulate this question correctly after numerous posts, I will try it again all by itself:

Is there any definition in the Texas Penal Code of a circumstance or set of circumstances which would justify the use of the "threat of deadly force" while not also justifying the use of "deadly force"?

Like I said before, I will see if I can ask my friend who is a judge tonight at church.

[Pinkycatcher]

Well, bottom line is, in Texas, if he did shoot them, what DA will prosecute, or what grand jury will indict him, he had a much clearer cut case than Joe Horn did even, and once the police pull up the guys rap sheet, plus the fact that he had an illegal gun on him (both of which are very likely because people that brave aren't first time criminals) most people will have lost sympathy, and it's close enough to argue that he feared for his life and was forced to shoot. It's blurry enough that most people in Texas will agree with his side.

[DoubleJ]

Is there any definition in the Texas Penal Code of a circumstance or set of circumstances which would justify the use of the "threat of deadly force" while not also justifying the use of "deadly force"?

Short answer, yes. SubSection B of Chapter 9 details justification for use of Force, but check out 9.31 for the good stuff. and every time it says Force, it also includes that pesky Threat of Deadly Force.
check out The TPC for further reading.

[Bart]

Is there any definition in the Texas Penal Code of a circumstance or set of circumstances which would justify the use of the "threat of deadly force" while not also justifying the use of "deadly force"?

What charges are you suggesting the DA will bring against the defender who threatens deadly force and scares away the criminal without a shot fired? Answer that and maybe we can answer your question.

[JDKRIEK]

You did good, considering how stressful it must have been.

However, if you fear for your life, discharge your weapon until all movement stops! Period.

[Liko81]

Well this debate hinges on the presumption that "threat to cause death or serious bodily injury by the production of a weapon..." is defined as "force" or "threat of force", and not "deadly force".

However I can find nowhere in these sub-sections where it is clearly defined. We simply have the definition that the "threat to cause death..." does not constitute the use of deadly force, without any definition of what it does actually constitute. We are presuming it constitutes "FORCE" as someone else mentioned, but it is nowhere clearly defined as such that I can find.

Also reasonably the "threat to cause death..." might lead to a situation that results in justification for the use of deadly force, such as in the baseball bat to the car idea. If you had not presented the weapon, then perhaps the slugger would not have come at you with the bat.

I think this is a gray area at best.

No. As defined at law this is quite black and white, and here's why. There are two levels of physical violence in Texas law; force, and deadly force. A threat to cause death is synonymous with a threat of use of deadly force, as deadly force is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury" (Sec 9.01 clause 3). Section 9.04 states specifically that the threat to cause death (which is the threat of use of deadly force) does not constitute the actual use of deadly force. It is thus "force other than deadly force" which is mentioned many times in Chapter 9 and equates simply to "force", as it's the only remaining option recognized at law.