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posted
Good afternoon,

I was hoping someone could provide me with a better understanding/interpretation of 9.04 (threats as justifiable force).

I am specifically confused on the 2nd part:
"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."

I am not sure how to interpret this.
 
Posts: 2 | Registered: February 12, 2018Reply With QuoteReport This Post
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You'll want to read Gamino v. State, 537 SW 3d 507 (Tex. Crim. App 2017) if you haven't already.

As a general rule under Chapter 9, the use of deadly force is only justified in a more narrow set of circumstances than non-deadly force (For example, compare §9.31 'Self-Defense' with §9.32 'Defense of Person' or §9.41 'Protection of One's Own Property' with §9.42 'Deadly Force to Protect Property').

The first sentence of §9.04 says that a threat of force is justified if the use of that force would be justified under Chapter 9. The second sentence, per Gamino basically says that justifying a threat of deadly force-if the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary-is analyzed under the same standard as non-deadly use of force (such as §9.31) rather than under the more strict use of deadly force standard (such as §9.32).

Gamino v. State, 537 SW 3d at 510-11:
quote:
...even though Appellant is charged with using a deadly weapon, if the evidence presented at trial triggers the application of Section 9.04, Appellant would be entitled to an instruction on, non-deadly force self defense under Section 9.31, rather than deadly force self defense under Section 9.32. As the court of appeals correctly noted, "[i]f Section 9.04 applies, then the use of a gun does not constitute 'deadly force,' and, therefore, [S]ection 9.32 would become inapplicable. If [S]ection 9.04 applies, then the use of the gun would, by default, be the use of `force' in self defense, and [S]ection 9.31 would be the applicable provision."
 
Posts: 2 | Registered: February 12, 2020Reply With QuoteReport This Post
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Thank you for taking the time to write this. Really appreciate it.
 
Posts: 2 | Registered: February 12, 2018Reply With QuoteReport This Post
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