Texas-Book-Gun Law Armed And Educated - Flipbook - Page 150
Unfortunately, police and prosecutors frequently misapply Section
9.04 and treat exhibiting (producing) a weapon the same as using a
weapon. Thus, it is not uncommon for a person who merely pointed
a firearm as a warning to be charged with the same crime as if they
shot and seriously injured that person. While that is an unfortunate
position to be in, thankfully, the Gamino case has offered significant
clarity on this issue.
E. Warning shots
Warning shots get a lot of good folks in legal trouble! Warning
shots are commonly portrayed in movies and television as a good
idea—and people like to mimic what they see in movies and on
TV! Leaving completely aside all practical issues of whether under
a particular set of circumstances a warning shot is a good idea (and
experience has taught us that very rarely are they a good idea),
what does Texas law say about warning shots?
1. Are warning shots a use of deadly force?
The term “warning shot” does not appear in the Texas Penal Code.
Without clear guidance from statutory law, courts are left to determine
if the action of firing a warning shot is to be considered under either
the use of force standard or the use of deadly force standard.
Although the firing of a warning shot is not per se legally forbidden,
you should be aware that if you fire a warning shot, it is highly
likely that your conduct will be judged under the legal standard
that you have used deadly force and not just mere force. This
means that a person may only be allowed the legal argument of
justification if a warning shot is fired in situations in which deadly
force is justified under the law. There is little appellate court case
law demonstrating how Texas courts have addressed the issue of
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