Texas PC Sectino 9.04.2 and the McDermott decision

[DoubleActionCHL]

Observations are inherently subjective, which is why DWI charges are supported by quantifiable evidence.

Actually, quantifiable evidence does not really have to be there. In Texas there is NOT a legal limit for DWI. TPC 49.01 (2) states:
"Intoxicated" means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.

.08 is the BAC standard, but the statute states that 'any impairment' can be justifiable to charge someone with DWI (not to be confused with DUI in Texas which is only for someone under the age of 21 and the 'zero tolerance law of NO alcohol in system.)

It is purely at the discretion of the officer if he believes he has probable cause due to a perceived impairment to make the arrest.

Impairment starts the minute you take a drink. It may be small enough to not visibly affect you, but even small amounts of intoxicants introduced into the system impact motor skills and decision making. Some folks handle it better than others. I know people who are basically tee-totalers that one small glass of wine or champagne and they are tipsy and feeling it.

I completely understand that the probable cause and even the arrest is based on observation. However, once arrested, a breathalyzer or blood test can be performed to support the arrest. This serves as an empirical benchmark for the prosecution. If it falls below the legal limit, it can work in the citizen's favor. Either way, it is an established benchmark, or number, that is less subjective as the officer's observation. I'm not impugning officers, but we all know that observation isn't an exact science. The precision of the observation is based on the quality and quantity of training and the officer's basic skills. The physical state of the citizen, such as fatigue, can introduce false-positives in some of the field sobriety tests. And, we must also admit that the attitude of the officer toward the citizen might influence the 'results' of the observations.

The question is not "will I be arrested?" The question is "will I be convicted?" I believe the laws concerning DWI will result in a more 'exact' conviction than "carrying while intoxicated" under TPC Section 46.035.

[DoubleActionCHL]

I recently visited Austin for my CHL Instructor renewal. I wasn't entirely impressed with the information or the delivery process, but this was nothing new. What surprised me was that I was the only one in the room who knew anything about the McDermott decision and how it effectively negates TPC Section 9.04 (threats as force and excluding the mere production of a weapon while attempting to create an apprehension as deadly force), opening the CHL holder to a charge under TPC 46.05 (intentionally failing to conceal). In fact, the bulk of the room flatly told me I was wrong. The DPS Officer instructing at the time had no comment.

The trooper did add, however, that the CHL holder could be charged with aggravated assault if deadly force was not justified. Again, I was under the impression that the "threat of force" as self-defense (properly used, of course) effectively provided a defense to prosecution for such a charge.

I believed I had a decent layman's handle on these statutes and their effective application, but I'm doubting myself based on the opinions of other instructors who "have been doing this since day one."

Help me out, Charles! Am I completely off track? Also, what year was the McDermott decision rendered?

Thanks!!!

[DoubleActionCHL]

Bump, bump, bump...

[TEX]

I wonder of he was carrying under say, a Utah non-resident license, could he have been prosecuted. Does the law only apply to a person carrying under a Texas CHL?

[Charles L. Cotton]

. . . The trooper did add, however, that the CHL holder could be charged with aggravated assault if deadly force was not justified. Again, I was under the impression that the "threat of force" as self-defense (properly used, of course) effectively provided a defense to prosecution for such a charge.

Thanks!!!

When I last renewed my CHL Instructor's Certificate, Lt. Derrick did talk about §9.04, but not by specific reference to that Code Section. He gave an example of proper use of §9.04 without any reference to the McDermott. It's clear that, at that time, DPS correctly taught that §9.04 would allow the threat of deadly force even when you couldn't yet use deadly force.

§9.04 is also a defense to a charge of aggravated assault, if the elements of §9.04 are present. It is necessary to be justified in using some force, but it need not be deadly force. Again, there are no cases on point in Texas, but this is the intent of the Model Penal Code section dealing with "Threats as force" that was incorporated in the Texas Penal Code.

Chas.

[Charles L. Cotton]

Bump, bump, bump...

Sorry, I'm swamped.

Chas.

[DoubleActionCHL]

Bump, bump, bump...

Sorry, I'm swamped.

Chas.

No problem. I just didn't want it to get buried.

[oljames3]

I stumbled across this thread in researching TPC 9.04. I've always felt that producing a firearm as a threat would be a bad tactical move. What do you do if the threat fails and a deadly force threat does not present?

In addition to McDermott, this case shows how the trial court and the Court of Appeals might treat a threat under TPC 9.04:
Felipe Rodriguez Jaimes v. The State of Texas--Appeal from 167th District Court of Travis County
https://law.justia.com/cases/texas/thir ... /1841.html

(West 1974, Penal Code Vol. 1 now replaced.). The commentators are correct, Section 9.04 was inartfully written. Its application in justification when a defendant is prosecuted for the offense of making threats "by the production of a weapon" is comprehensible. See, e.g., cases cited in the commentary and Barree v. State, 621 S.W.2d 776, 779 (Tex. Crim. App. 1981). But application of Section 9.04 to the prosecution of cases in which the defendant is prosecuted for offenses resulting from the gun going off are more difficult. See Kirkpatrick v. State, 633 S.W.2d 357, 358-59 (Tex. App.--Fort Worth 1982, pet. ref'd).

By its wording, Section 9.04 limits an actor's defense of justification for threatening to cause death or serious bodily injury by the production of a weapon to situations in which the actor's purpose is to create only the apprehension the actor will use deadly force if necessary. Here appellant's purpose was not limited to creating an apprehension he would use deadly force if necessary. According to appellant's testimony, he thought it necessary to shoot the victim in self defense. This created more than an apprehension that appellant would use deadly force. He used deadly force. Appellant's testimony entitled him to a jury charge on self defense. The trial court fully charged the law of self defense. We conclude appellant's rights were adequately protected by the charge given. The facts did not require the trial court to give the requested charge, and the court's refusal to do so was not error. In an attempt to show how the court's refusal to give the requested charge was harmful, appellant quotes from the prosecutor's argument. Appellant contends that because the court refused his requested charge on Section 9.04, he could as a matter of strategy elect not to object to the State's argument misstating the law. As we understand this argument, appellant is wrong. The proper course if the State misstated the law in argument was to make a timely objection to the State's argument. Appellant's first point of error is overruled.

The judgment of the trial court is affirmed.