7 responses

  1. Richard C.
    October 17, 2016

    IANAL, but the Texas self-defense statute you refer to is, I believe, §9.31(b)(5)(A) that refers to §46.02, which seems to imply that it is illegal to carry a handgun outside your home or while traveling. Of course, §46.15 outlines the nonapplicability of §46.02 to peace officers and CWL holders, among others. So in the situation described, it would be legal for a CWL holder to be armed when visiting a neighbor to air a grievance, since the carrying of the weapon is not unlawful under §46.02.

    Reply

    • Greg Prickett
      October 18, 2016

      If you carry a weapon while seeking someone to confront them on an issue, you can’t claim self-defense in Texas. It’s legal to be armed with a License to Carry, but you can’t use self-defense if you shoot someone during the confrontation. It’s two different issues.

      Reply

      • Richard C.
        October 18, 2016

        I very respectively disagree. Please see the famous Raul Rodriguez 2014 Harris county appeals case that directly contradicts your claim. There the original verdict was overturned, in part, because the jury instructions regarding the “in violation of the law” qualification were confusing. The main issue there was not whether Rodriguez carried a weapon to a confrontation, but whether he displayed the weapon in violation of the concealed carry law in place at the time. Similarly there was an issue of whether his intoxication made his carrying unlawful.

        It is true that §9.31(b)(4) imposes a certain duty of retreat on a provocateur, though I believe provoke in this context means more than just starting a discussion. I don’t believe this was addressed in Rodriguez, but I am sure there is ample case law.

        There are many other issues that could play out, such as the homeowner could ask the armed person to leave, failure to do so would probably preclude self-defense) but it seems rather clear that lawful carrying of a weapon does not in itself preclude self defense under Rodriguez.

        Reply

      • Greg Prickett
        October 18, 2016

        “For example, in Williams the court of appeals held that the trial court did not err in refusing to charge the jury on self-defense, when the defendant-stepfather admitted bringing a gun with him to confront the victim after the victim spanked defendant’s stepson with a belt.” Elmore v. State, 257 S.W.3d 257, 259 (Tex. App.-Houston [1st Dist.] 2008, no pet.), citing Williams v. State, 35 S.W.3d 783,786 (Tex. App.-Beaumont 2001, pet. ref’d).

        There are more than one case on point. The majority of the cases follow the rationale stated by the Elmore court. The Rodriguez case (Rodriguez v. State, ___ S.W.3d ___, 2014 WL 7205226 (Tex. App.-Houston [1st Dist.] 2014, no pet.)) was tried again, only this time, instead of 40 years, Rodriguez was convicted and sentenced to life in prison.

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      • Richard C.
        October 19, 2016

        Greg, thanks for the detailed reply. At the risk of belaboring the point, I will note that the Williams court found that it was a matter of fact that the gun was unlawfully carried: “the State presented a certified document from the Texas Department of Public Safety stating that a handgun license had not been issued to Ontario Carvon Williams, nor had he applied for one. … Williams was illegally carrying a handgun.”

        The Elmore case is problematic to me because the legality of carrying the weapon under §46.15 is not explicitly addressed in the opinion, as it was in Williams. If the majority of courts fail to consider all of the elements of the relevant penal code, then use Williams to decide that self defense is precluded, then obviously the regime described by JoAnne and you would be an expected result. Indeed I have found other cases where §46.15 qualifications were not addressed in discussing legality under §46.02, though it could be the case that the records in those cases did not contain evidence pertinent to possible qualifications (as opposed to Williams, which did).

        Thanks again for the discussion.

        Reply

  2. Curiosity
    October 18, 2016

    Personally I think when the OFF DUTY OFFICER went to the neighbors house to confront the neighbor about a dog he knew the possibility of things being heated up & the consequences. Come on officers are trained to think… so why would he pack a gun he knew the possibilities of someone getting hurt. I guess he wore the badge for authority the gun for intimidation and these two items give false courage so the officer started popping off by the mouth the neighbor felt played because the officer came to his house on his property to address him and his dog I feel like it’s more to the story they’re neighbors how long have they been beefing this smells fishy to me.

    Reply

    • Greg Prickett
      October 19, 2016

      Many police departments require their officers to be armed – both on and off duty.

      Reply

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