Deadly Conduct: The “Other” Assault Charge in Texas

January 27, 2020 | By Fulgham Hampton Criminal Defense Attorneys
Deadly Conduct: The “Other” Assault Charge in Texas
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If you have been charged with Deadly Conduct charges in the Fort Worth, Texas or surrounding cities in Tarrant County, Texas, you need to know what you are up against and what Texas criminal law says the State of Texas must prove beyond a reasonable doubt to convict you.

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, get out of control and people’s emotions get the best of them and only end when assault or deadly conduct charges are filed. Firsthand 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 bar room brawl.

When you’re the kind of Texan who exercises your right to bear arms regularly and believe in being ready to respond to someone else’s deadly aggression… 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. Notice the term “potential” harm. Here, we are looking at a subjective opinion by an alleged victim as to whether your actions placed them in fear of imminent danger of serious bodily injury.

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. In other words, if there is a fact scenario where the prosecutor knows they can not prove you acted intentionally or knowingly, they will try to see if they can allege you had the criminal intent to act recklessly with the alleged victim.

Texas law says “[r]recklessness 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

If you regularly carry a gun, you already know that Firearms should be always handled carefully. 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. Let’s examine them both in detail:

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 or serious bodily injury. This is the textbook definition of “reckless” behavior.

Reckless Behavior

Reckless behavior is the lowest level criminal mental state applicable to a deadly conduct charge and carries the lightest sentence. Intense road rage or other unsafe and reckless driving practices might be considered deadly conduct by law enforcement. For example, reckless driving and road rage incidents are not claiming the individual was trying to place another person intentionally or knowingly in fear of serious bodily injury or death. However, the charge is claiming that the actions were made in conscious disregard of the risk created to the alleged victim under the circumstances.

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 Tarrant county jail for a year and/or paying $4,000 in fines. Although it may be tempting to believe a misdemeanor conviction for deadly conduct by reckless behavior will not affect your future, the reality is that even a misdemeanor conviction could limit your potential for future job opportunities and being judged by others as being a violent person.

The next three variations of deadly conduct charges are all considered third-degree felonies, which can lead to a decade in a Texas prison and a fine of up to $10,000.

Firing Your Weapon

Firing a gun at a vehicle or building you know is empty is not considered deadly conduct. Practice shooting at unoccupied barns or old cars is common in parts of the country and, by itself, would not be considered as a crime of deadly conduct.

However, things can become complicated if someone simply assumes that a car, building, barn, or other structure is empty. This scenario can lead to a charge of deadly conduct under certain circumstances.

Before you fire a weapon in any direction, Texas criminal law requires that you must do your due diligence and know for certain that you are not firing at an occupied space. Otherwise, you could be criminally responsible and considered reckless and subject to felony deadly conduct charges.

Pointing a Firearm at a Person

If you were born and raised in Texas, then you grew up understanding guns should never be treated as a joke, and they can get you in trouble if you don’t know how to use them. 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 Texas criminal law, even if you sincerely believe your firearm to be empty and don’t intend to fire, pointing a gun at another person can be considered felonious deadly conduct.

Pointing a gun at another person is the most common form of deadly conduct we find filed in the courts of Tarrant County, Texas. If a firearm is displayed or brandished in anyway, it is common for an alleged victim to immediately claim that they were placed in fear of serious bodily injury or death. Obviously, this alleged victim was not hurt and the only evidence to support this claim is the alleged victim’s word. This leaves much room for an experienced and aggressive criminal defense attorney to negotiate based upon whether a reasonable person would believe the facts provide sufficient proof to prove beyond a reasonable doubt that the alleged victim should have been in fear of serious bodily injury or death.

For example: a situation where a husband and wife had decided to get a divorce and there would be a contested child custody coming. One night the husband was in his detached garage and cleaning his gun. The gun inadvertently went off and a bullet went through the ceiling. The wife was in another part of the house separate and detached from the garage but claimed to the police she believed her husband “had to be aiming in her direction and felt in fear for her life when the gun went off.” The Fort Worth police, choosing to believe the word of the wife, who clearly had a motive to create a criminal case against her soon-to-be ex-husband, arrested the man and charged him with a felony deadly conduct charge.

What could this man do? He knew he was innocent! He did nothing wrong! It was at this point the facts of the case were able to be investigated and discovered. Unfortunately, the Fort Worth police department did not do a thorough investigation to determine what took place. If they had, they would have learned that the alleged bullet hole in the ceiling was actually an old hole in the ceiling that did not match the bullet used in the gun. Additionally, the police failed to answer the most fundamental question required to bring a case: can they prove that the gun being fired was anything other than an accident? In other words, did the gun go off accidentally? Was it negligent? There were no other witnesses to the incident and even the ex-wife could not explain how the weapon was fired because she was in another building at the time.

We were able to prepare a packet of evidence to present to a Tarrant County Grand Jury to let them see the full story of what took place. Remember, the grand jury system exists under Texas criminal law for the purpose of filtering out bad felony cases. The grand jury can keep the case as a felony deadly conduct, lower it to a lesser misdemeanor deadly conduct or other misdemeanor charge or No Bill the case – essentially dismissing the case!

What if your deadly conduct makes it past the grand jury? Can you still get your criminal case dismissed? It is possible! An experienced and aggressive criminal defense attorney may be able to negotiate a conditional dismissal or lesser charge!

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 a gun, or you are committing a crime.

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

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.

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.

If you are facing a deadly conduct in Fort Worth or in the surrounding cities in Tarrant County, Texas, you need the help and guidance of an experienced criminal defense law firm that has a track record of proven results in defending citizens charged with deadly conduct. Whether it is a misdemeanor or felony deadly conduct, you deserve the best criminal defense representation to protect you from jail time, hefty fines or unreasonable probation terms that could ruin your clean criminal record and limit your potential in the future. At Fulgham Hampton Criminal Defense Attorneys , you will work with a team of experienced former prosecutors with over 80 years of criminal law experience and over 500 criminal jury trials handling everything from shoplifting to murder. We offer free consultations, and our criminal attorneys stand ready to answer your questions and ensure that every question you have is answered and you receive customized defense plan to protect you from the State of Texas.  

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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