March 3, 2008

Vol. 2   No. 1

We're back

You might have noticed that we've been remiss in our Newsletter publishing duties.  Sorry about the slow start, this year, but we've been a little busy.

  • We've been moving forward with our plans to offer several advanced shooting classes.  We should have a letter out on the classes, in the next couple of weeks.

  • Our CHL Classes started out this year on a great note with over 40 students in February, alone.

New:  Our 'alumni' is growing faster than ever.  We regularly receive calls and emails from our former students sharing real life experiences relating to "Concealed Carry in Texas".  These experiences are not only interesting, but can have great value in helping others learn from the consequences (good or bad) of decisions and actions taken by fellow licensees.

We are going to be soliciting input from all of you relating to your own personal experiences relating to CHL.  We will at all times respect confidentiality expressly requested by contributors.

To contribute:  Newsletter Contribution

Article contributed by:

1026 W. Hildebrand
San Antonio, Texas 78201
Voice:  (210) 826-1233
FAX:  (210) 826-4784

March 3, 2008

What Did I Do and What Will It Cost Me:
Crimes 101,
Installment I, Simple Assaultive Offenses

Criminal defense and prosecution turns on a continual analysis of culpability and behavior. Culpability is the level of a mental state, which is a contributing factor to the level of punishment a defendant faces for committing a crime. Behavior is the second factor.

First week criminal law teaches us that two things are required for a crime. Criminal prosecution is the role of government, either the city, state or Federal government.  The two requirements are:  (1) an actus reus, a criminal act or behavior, which is voluntary;  and (2) a mens rea, or culpable mental state.  Both are set forth in the applicable state or Federal statutes.  This article demonstrates the levels of culpability for offenses referred to in Chapter 22 of the Texas Penal Code as “Assaultive Offenses” relating to handguns which do not cause serious bodily injury.  None of them will be any fun in the long run and all will be expensive, both from a punishment standpoint and the cost of a criminal defense.  I will not spend time on the cost of a defense, but figure it will at least be in the thousands and the time commitment will be substantial.

The least culpable of the assaultive offenses is simple assault.  It requires an act resulting in some sort of bodily injury and a mental state of intention, knowledge or at least recklessness.  An actor generally can not commit a criminal assault by lack of proper care, or negligence.  Negligence is the subject of civil liability in the Texas and Federal systems.

Intent requires a showing, by competent evidence, which is testimony, documentary or other evidence, that the actor’s conduct results from his or her conscious objective or desire to engage in the conduct or cause the result.  Let’s say you are home, cleaning your guns, when your brother-in-law comes over.  Let’s also assume he is drunk and obnoxious and calls someone close to you an ugly name.  So you finish cleaning your Ruger and swat him on the head with it, raising a welt.  You have committed an intentional assault on him.

Let’s change the facts and assume that you show your brother-in-law the door and he is reluctant to leave.  He is standing by the door but will not leave voluntarily.  To encourage him leaving, you swing your empty Ruger in his direction, not intending to hit him but knowing that it is close to his head.  The mental state of knowledge requires that you be aware of the nature of your conduct or that circumstances of risk exist but disregard the risk, or you are aware that your conduct is reasonably certain to cause the result.  He leans back, you again whack him on the head, and he staggers out of the house with a welt on his head.  Assuming again that he calls the cops, you have just committed a knowing assault on the big slug.

The third culpable mental state for an assault is recklessness.  Recklessness does not require substantial certainty that the result will occur nor knowledge which your disregard, but something less.  Let’s say you are cleaning your Ruger when he says something obnoxious.  You load it and shoot it into the ceiling, where you know it will not hit him, but a piece of ceiling falls down, hitting him in the eye and requiring a trip to the doctor.  You have just committed a reckless assault.

Note that a defense to assault is consent.  Consent requires a showing that the consent is effective (knowing) or that the actor reasonably believed that the victim consented to your conduct.  If the big lug said, “That felt good, hit me again”, and you do, he consents to the touching and there is no crime, assuming you can prove he said it.  Or if you say, excuse me, and he says okay, there is no assault.  Defense of one’s self, or another, or of property, is also a defense to assault.  Let’s say he takes the empty Ruger, heads for the door, and you take the fireplace poker or another unloaded weapon and whack him on the head, again raising a welt, he drops the Ruger and leaves.  There is no assault, assuming the jury believes you.

So what’s it cost me?  Assault against is generally punishable as a misdemeanor, by a fine and time in the county jail, at worst, unless there are aggravating circumstances.  Simple assault is a class A misdemeanor, punishable by a term of incarceration of not more than a year in the Bexar County Hilton, a fine not to exceed $4,000, or both.  The punishment will be tailored to make reasonably sure you do not whack him again.

Assault can be a third-degree felony, punishable by incarceration in the Texas Department of Corrections from two to ten years, a fine not to exceed $10,000, or both, if the victim is (1) a public servant, such as a police officer; (2) a person against whom you are retaliating for exercising a public power or performing an official duty, such as a witness in a court case; or (3) the victim is a member of your family or household and you have a previous conviction for family violence assault.

As always, if you are arrested or summoned for assault, seek competent legal counsel.

Practice, Practice, Practice


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