Texas-Book-Gun Law Armed And Educated - Flipbook - Page 149
A warning about warnings
Section 9.04 clearly shows the legislature intended the “production”
of a weapon (as opposed to the “use” of a weapon) in defense to
be a use of force—not deadly force. Absent justification, the use
of force ordinarily constitutes a misdemeanor, whereas the use of
deadly force constitutes a felony. Contrary to the plain language of
Section 9.04, historically some Texas courts indicated that a person
may only legally produce a weapon as a threat in response to deadly
force (and prosecutors and trial courts followed) — although the
plain language of Section 9.04 appears to give a legal justification
for a person to threaten force by producing a weapon in response to
an unlawful use of force or deadly force.
The Texas Court of Criminal Appeals has held that it was judicial
error of a trial court when it failed to give a jury instruction on
Section 9.04 in cases where a defendant has claimed self-defense
and stated that they displayed a weapon but did not use it. See
Gamino v. State, 537 S.W.3d 507 (Tex. Crim. App. 2017); State v.
Sciacca, 518 S.W.3d 480 (Tex. App.—Hou.[1st Dist.] 2016). The
Texas Court of Criminal Appeals determined that Section 9.04 is
incorporated into the self-defense justification of Section 9.31. It
adopted the Fort Worth Court of Appeals language that states:
[i]f Section 9.04 applies, then the use of a gun does not constitute
‘deadly force,’ and, therefore, [S]ection 9.32 would become
inapplicable. If [S]ection 9.04 applies, then the use of the gun
would, by default, be the use of ‘force’ in self defense, and section
9.31 would be the applicable provision. Gamino, 537 S.W.3d
507, 510-511, citing Gamino v. State, 480 S.W.3d 80, 87 (Tex.
App.— Fort Worth 2015).
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