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FORT WORTH CRIMINAL DEFENSE BLOG HOME

Jan 27
2020

Assault

We’ve all lost our temper at some point or another, and as you’ve most likely experienced yourself, often everything ends up resolved in a relatively civil manner.

Some situations, however, only end when assault charges are filed. First hand or not, you probably know that, too. What you may not know is there’s more to assault charges than what you see in a hand-to-hand barroom brawl.

When you’re the kind of Texan who exercises your right to bear arms regularly… there’s an increased chance of being charged with “deadly conduct” should an altercation arise.

Deadly Conduct Charges in Texas

The Texas Penal Code (Sec. 22.05) defines deadly conduct as a crime committed when one person “recklessly engages in conduct that places another person in imminent danger of serious bodily injury.” It is an umbrella term for several specific types of assault and heavily focuses on the potential harm of firearms.

Deadly Conduct Charges Usually Accompany Reckless Behavior

While there is some overlap between deadly conduct and aggravated assault, especially at the lower levels, deadly conduct is usually charged in cases of recklessness as opposed to situations where offenders intend to hurt someone else.

Texas law says “[r]ecklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.”

Bearing Arms in Texas is a Right That Comes with Responsibility

Firearms should be handled carefully at all times. This is a basic tenet of every gun safety course on the market. Essentially, you should always act like the gun is loaded, even if you’re sure it isn’t. Otherwise, one mistake could land you a deadly conduct charge.

There are four specific ways you can potentially receive a deadly conduct charge, and there are two primary punishment levels that you might face.

Four Ways a Texan Can Land a Deadly Conduct Charge

The first way you can get a deadly conduct charge is by taking an action that puts someone else in immediate danger of receiving a severe bodily injury. This is the textbook definition of reckless behavior.

Reckless Behavior

Reckless behavior is the lowest level deadly conduct charged and carries the lightest sentence. Intense road rage or other unsafe and reckless driving practices might be considered deadly conduct by law enforcement.

Acting recklessly doesn’t necessarily involve a weapon at all, but if you’re convicted of this Class A misdemeanor offense, you could still wind up in prison for a year and/or paying $4,000 in fines.

The next three charges are all considered third-degree felonies which can lead to a decade in a Texas prison and/or debt of $10,000.

Firing Your Weapon

, Deadly Conduct: The “Other” Assault Charge in Texas

Firing a gun at a vehicle or building you know is empty is fine. Practice shooting at unoccupied barns or old cars is common. Simply assuming the structure’s empty…is not.

You must do your due diligence and know for certain that you are not firing at an occupied space. Otherwise, you are legally considered reckless and subject to felony deadly conduct charges.

Pointing a Firearm at a Person

If you’re from Texas, then you grew up understanding guns should never be treated as a joke. They should never be pointed at another person upon whom you do not intend to fire. You point your firearm at the ground when it’s not in use.

According to the law, even if you sincerely believe your firearm to be empty and don’t intend to fire, pointing a gun at another person is felonious deadly conduct.

Firing at a Person

This is perhaps the simplest and most clear-cut of the deadly conduct behaviors, and borders on aggravated assault (or assault with a deadly weapon). Recklessly firing a weapon at or in the general direction of another person is illegal, and considered a third-degree felony.

Firing by accident or without checking whether the area was clear before firing are two scenarios in which you could be charged. Always check and make certain that there is no one in the direction in which you intend to fire, or you are committing a crime.

As with nearly every rule, there is one exception to the rule on deadly conduct in Texas…

One Exception to the Rule on Texas Deadly Conduct: Consent

If someone has legally consented to the actions taken by the person holding a gun, then the gun-holder has a solid defense against charges. In fact, a sincerely-held belief that someone has consented to the action is enough to present a defense against deadly conduct.

For example, a person may give consent by accepting a job in which potential deadly conduct is an understood risk, or by consenting to a scientific experiment using established methods.

One Exception to the Rule on Texas Deadly Conduct: Consent

Furthermore, if the action did not result in actual harm, perceived consent becomes an even stronger defense.

The easiest way to avoid deadly conduct charges is to avoid acting recklessly. Always be cautious when handling firearms, and keep others’ safety in mind. The simplest defense is never being charged in the first place.

 

 

About the Author:

Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.

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