Apparently imminent harm does come about when your opponent produces his handgun and points it at you. Gamino

To me, 9.04 of the Penal Code merely makes the common sense observation that when the use of force is justified (as immediately necessary to protect oneself against another), then a lesser threat of use of force is likewise justified. If the use of deadly force was not immediately necessary to repel at least a threat (or apparent danger) of deadly force by the other person, then producing a per se deadly weapon (even if only as a warning that you are armed and willing to use deadly force if things escalate or continue) is still prohibited. I can agree with the court that if something is produced (or exhibited) that would constitute a deadly weapon based only on its manner of intended use, then I may have effectively disproved that a deadly weapon was involved in the commission of my assault (but not a form of justification). It is also apparent (as the statute states) that merely producing a deadly weapon does not constitute the use of deadly force (which normally occurs only when the projectile is emitted).

But, where a firearm is produced, my subjective intent not to make serious bodily injury or death imminent is irrelevant. That type of battery is imminent if my use of the weapon is capable of creating an apprehension that I am capable of using deadly force if things continue.

The court ignored the first sentence of 9.04 and misinterpreted the second sentence. I have always disagreed with the idea that mere exhibition of a deadly weapon should be used to raise a Class A misdemeanor to a second degree felony and have also been troubled by the overlap between 22.02 and 22.05(b)(1). But, surely the court must have misapprehended the purpose and meaning of 9.04. Does that statute really carve out a specific (and very dangerous) type of threat from the scope of 22.01(a)(2)? If so, why? And how does the prosecutor predict the use of the defense or prepare to meet it? The better answer to the issue is found in Davis, 22 S.W.3d at 640 and Baree, 621 S.W.2d at 779.

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