Last week the Court of Criminal Appeals of Texas gave us some insight into the current state of guns laws in Texas and the availability of a self-defense claim handing out a decision entitled State of Texas v. Gamino. In August of 2013, Mr. Gamino and his girlfriend were leaving a bar at closing time in downtown Fort Worth, Texas. While walking back to Gamino’s truck they passed a group of three men sitting on a street corner. Gamino heard one of the three, who we will refer to as Khan, quote a line from a movie that was extremely lewd. Gamino thought the comment was meant for his girlfriend and confronted Khan. Khan testified at trial that he was not talking to Gamino or his girlfriend. Khan stated that Gamino said, “I’ve got something for you.” Khan stated that Gamino then walked to his truck and pulled out a gun which he then pointed at the three men. Two off duty police officers were working security in the area. One of the officers stated that although the area was noisy and people were laughing and talking, he heard someone arguing over the others and someone yelled, “Yeah, well I got something for you.” The officers saw Gamino retrieve something from his truck and assumed that he was retrieving a weapon. One officer named Flores saw Gamino with a pistol in his hand. Officer Flores drew his gun as he saw Gamino raise his gun. The officer saw several people backing up and saw Khan and his friends putting their hands in the air. Officer Flores told Gamino to drop the gun and he immediately complied by lowering the weapon and was not aggressive in response to the command. Gamino put the gun down on the driver’s side seat of the pickup truck. Khan was arrested for public intoxication and Gamino was subsequently arrested for aggravated assault with a deadly weapon. It should be noted that Khan was very unruly and was on the verge of being tased by the officers.
Upon arrest Officer Flores recalled Gamino had said about Khan, “Well, he was talking shit.” Flores testified that “talking shit” to someone does not give the other person the right to pull a gun. Flores opined that any person including a police officer is only allowed to use deadly force when the other person presents a threat of either deadly force or serious bodily injury. When cross examined by the defense, Officer Flores stated that whether a person had a right to protect himself depended on the situation.
Gamino’s girlfriend testified that she had known Gamino for eight years. She said that after coming back from overseas Gamino had two back surgeries and two failed knees and some shoulder problems. Was Gamino a veteran? We don’t know because it is not mentioned in the case discussion. Gamino was parked in a handicapped spot and was disabled. The girlfriend said that she and Gamino had gone out to dinner with friends and then later to a club. When leaving the club, the three men including Khan confronted them and one man threatened her. We presume this man was Khan. She stated that she feared for her life.
Gamino testified that they were returning to his vehicle when they encountered the three men. He stated that the men threatened he and his girlfriend. Gamino stated that they threatened to “grab her ass” referring to the girlfriend, and they would “F her if they wanted to, “and they “would kick his ass.” One of the men came at Gamino, so he reached into the vehicle and grabbed his gun. He then told the men, “Stop, leave us alone, get away from us.” Gamino denied saying, “I got something for you” and denied pointing his gun at the men.
Defense counsel asked for a jury charge on self-defense which was then denied by the trial judge. Without the self-defense instruction, the jury found Gamino guilty of aggravated assault with a deadly weapon. Gamino then appealed his conviction and asserted that he was entitled to a charge of self-defense.
The key here is that under Texas law, “A defendant is entitled to a jury instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.”
What’s interesting about this case is that the Court of Criminal Appeals of Texas found that section 9.04 of the Texas Penal Code was triggered which is titled “Threats as Justifiable Force.” The statute provides as follows:
“The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.”
So, what does this all mean? It seems to suggest that if you are threatened and then pull a gun it is not always considered deadly force. Because Gamino did not just display his gun, but rather displayed the gun along with telling the threatening party to “stop,” “get away,” and “leave us alone,” then it may be implied you are inferring, “or else I will have to use this gun to protect us.”
The number of Texas cases on point of being able to use a gun in self-defense is few a far between. The law in this area is a mine field, even for the experienced criminal defense attorney. At Ron Voyles & Associates we are experienced in self-defense claims and in Texas gun law. If you have been accused of assault, aggravated assault, or think your rights to self-defense are being denied, give us a call. With new open carry and concealed weapons permits on the rise in Texas, you need an attorney that is well versed in this new law and the law of self-defense. Call us today.
Ron Voyles is an attorney and a chiropractor with over twenty years of experience in the litigation of personal injury and the defense of drug and alcohol crimes. Ron practices in Montgomery, Harris, Walker, Grimes, Madison, San Jacinto, and Leon Counties.