“A person commits an offense [of disorderly conduct] if he intentionally or knowingly discharges a firearm on or across a public road.”[i] Discharging “a firearm on or across a public road” is a Class C misdemeanor[ii]; however, discharging “a firearm in a public place other than a public road” is a Class B misdemeanor.[iii]
Regarding the discharge of a firearm from, or at a motor vehicle:
A person commits an offense [of Aggravated Assault] if the person commits assault as defined in Sec. 22.01 and the person: (1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.[iv]
An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if: the actor is in a motor vehicle, as defined by Section 501.002, Transportation Code, and: knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle; is reckless as to whether the habitation, building, or vehicle is occupied; and in discharging the firearm, causes serious bodily injury to any person.[v]
Felonies in the second degree are punishable “by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years” and by a fine not to exceed $10,000.[vi]
Felonies in the first degree are punishable “by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years” and a fine not to exceed $10,000.[vii]
In our hypothetical situation it appears our Armed Defender would appear to have some exposure with regard to the Texas law that proscribes discharging “a firearm on or across a public road,” a misdemeanor.[viii]
Additionally, if our Armed Defender was even mildly successful in terminating the felonious aggression that was being committed by the assailant, it is likely that our Armed Defender would also have some exposure under the statute which criminalizes Aggravated Assault,[ix] a second-degree felony.[x]
If our Armed Defender discharged his firearm from a motor vehicle and was successful in neutralizing the threat by inflicting “serious bodily injury” on the assailant, our Armed Defender would seem to have a very good argument that our Armed Defender did not commit a felony in the first degree, as our Armed Defender’s actions were not “reckless.” Indeed, our Armed Defender intended to – and did -- stop the deadly threat posed by the assailant, which by definition, is not reckless conduct.
However, if our Armed Defender, while shooting from a motor vehicle, inadvertently injured or killed a hostage or other innocent person, our Armed Defender’s conduct might be deemed “reckless” and thereby expose our Armed Defender criminal liability for a first-degree felony.
That’s the bad news. The good news is that although our Armed Defender may be exposed to criminal liability, our Armed Defender may also be able to take advantage of one or more affirmative defenses.
An “affirmative defense” is defined as “[i]n pleading, matter asserted by defendant which, assuming the complaint to be true, constitutes a defense to it.”[xi]
This author, some years ago, attempted to elucidate for a misinformed instructor who taught the statutorily-required course for applicants who were seeking a Texas concealed handgun license, that an “affirmative defense” is not a statement by a criminal defendant that the defendant did not engage in conduct that might constitute a crime; rather, an affirmative defense is an admission that the defendant did, in fact, engage in such conduct, but that the defendant was legally justified in doing so.
This explanation of an affirmative defense might sound like a lot of legal “mumbo jumbo,” but it is, nevertheless, quite important.
The typical criminal defendant goes to court and pleads “not guilty,” and, thereby, compels the government to attempt to prove, beyond a reasonable doubt, that the defendant committed each and every element of the charged offense. The defendant need not say anything in his defense and, indeed, the government may not compel him to say anything.
A defendant who asserts an affirmative defense, on the other hand, admits that he committed the acts that constitute the charged offense, but then asserts that he was legally justified in committing those acts.
Thus, once a defendant asserts an affirmative defense, the focus of the criminal case is no longer on whether the defendant committed the acts that constitute the offense. The focus is now on whether, given that the defendant did commit the acts in question, whether the defendant’s conduct was legally justified.
Texas, in the context of the hypothetical situation faced by our Armed Defender, recognizes and has codified, among others, the affirmative defenses of necessity and self-defense.
Consistent with our foregoing definition of an affirmative defense, Texas law provides that “It is a defense to prosecution that the conduct in question is justified. . . .”[xii]
“Justification,” for the purposes of our Armed Defender, could be established by a showing that the acts in question constitute self-defense or were otherwise necessary.
Regarding the affirmative defense of self-defense, Texas law states that:
. . . a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor [acted reasonably, within certain statutory parameters that are consistent with well-settled principles of self-defense law]. . . .[xiii]
A person is justified in using deadly force against another if the actor would be justified in using force against the other under Section 9.31; and when and to the degree the actor reasonably believes the deadly force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful deadly force; or to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.[xiv]
In setting forth the affirmative defense of necessity, Texas law states that:
Conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.[xv]
The law of self-defense can be complicated. The foregoing summary merely “scratches the surface” of the subject and is not intended as legal advice.
This article also appeared in a February 2020 newsletter published by the Armed Citizens Legal Defense Network. https://armedcitizensnetwork.org
[i] Texas Penal Code § 42.01(a)(9).
[ii] An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500. Texas Penal Code § 12.23.
[iii] An individual adjudged guilty of a Class B misdemeanor shall be punished by: (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement. Texas Penal Code § 12.22.
[iv] Texas Penal Code § 22.02(a)(1-2).
[v] Texas Penal Code § 22.02(b)(3).
[vi] Texas Penal Code § 12.33(a-b).
[vii] Texas Penal Code § 12.32(a-b).
[viii] Texas Penal Code § 42.01(a)(9).
[ix] Texas Penal Code § 22.02(a).
[x] Texas Penal Code § 22.02(b).
[xi] Black’s Law Dictionary, 6th edition, p. 60 (1992).
[xii] Texas Penal Code § 9.02.
[xiii] Texas Penal Code § 9.31.
[xiv] Texas Penal Code § 9.32(a)(1-2).
[xv] Texas Penal Code § 9.22.