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
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.
Article contributed by:
REED GREENE, M.P.A., J.D.
1026 W. Hildebrand
San Antonio, Texas 78201
FAX: (210) 826-4784
March 3, 2008
What Did I Do and What Will It Cost Me:
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
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
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
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