I believe the non-gun status of a pre-1899 firearm is moot in light of the police and procecution of DC, or any other charge. If one was to present an 1860 colt, a cap'n ball revolver, and demand money, it would still be armed robbery, just as it would be if some fool tried to rob a bank with an airsoft gun, if the victem thought it was real and their life wasin danger. Said fool would be in prision just as same as if he had a Glock (loaded or not).
In your example, it may or may not be armed
robbery, but it would certainly still be robbery.
What would almost certainly fly is "assualt with a deadly weapon
" because a pre-1899 firearm is still a deadly weapon even if it isn't a "gun". Heck, there have been any number of non-weapons that have been classified as such for the purposes of this charge (such as a snake).
The original post concerned DC and the factors the court looked at in determining whether or not there was probably cause to think DC might have occurred. The case points our that how the weapon is "displayed" and whether or notthe actionswere "calculated to alarm" matter. Just the fact that someone saw a gun andwere alarmed was NOT sufficient, and that is a major victory. It takes individual perspective out of the equation and focuses on the actor not the observer. The actor's actions are what matters.
My point is whether simply openly carrying a pre-1899 firearm IS disorderly conduct or any other violation of law. As I read the statue book, it is not.
Actually, the charge in all these cases is PC29.03 Aggravated Robbery (no such charge in Texas as Armed Robbery). When a deadly weapon is used in the commission of a robbery the charge is elevated from robbery to aggravated robbery. While acap and ball or pre-1899 may not be considered a "gun" under Texas definition, it IS considered a deadly weapon (as is a length of pipe, knife or any other object capable of inflicting lethal injury) and as such would elevate the crime to the status of Aggravated Robbery just as if it were a 2008 model.
As for the mere belief by the victim that the weapon is real being enough to constitute the same offense, interestingly enough this is only truefor the charge of simple robbery. For the charge of Robbery under PC29.02, one must only be in fear of bodily injury, whereas for elevation to 29.03 Aggravated Robbery the weapon must be real and actually displayed. The exception to this otherwise weird loophole is if the victim is either over 65 or disabled, in which case the fear of bodily injury alone elevates the charge to aggravated status.
The same is true for assault. There is no charge of"Assault with a Deadly Weapon" in Texas, the charge is either simple "Assault" (PC22.01) or "Aggravated Assault" (PC 22.02). In the case Aggravated Assault, a deadly weapon must be either displayed or used in the actual assault to be considered aggravated, otherwise, it is just simple assault. Understand that an assault occurs when one causes bodily injury or threatens
to cause bodily injury to another. Incidentally, if you are carrying a handgun under your CHL and get into a fight (other than acting in self defense) and the person sees or knows you have it, that alone is usually enough toelevate the offence toaggravated status, whether you actually use it or not. (Most likely you will be charged with Aggravated Assault no matterwhether the other party knewor not once the officer finds that you are carrying.)
With all that said, let me add this thought.While it appears that a Pre1899 might be legal to carry under Texas law as written, most of use have agreed with the fact that doing so would be very costly at best because of the legal challenge that would surely result. However, the original posters argument included a scenario wherein the person was using thepre-1899 weaponto commit a separate crime, punishable in itself, whether armed or not, and had no bearing on whether the actual carry of the pre-1899 weapon was otherwise legal or not. It is apples and oranges when considering the legal carry of a pre-1899 versus the use of a Pre-1899 to commit a separatecrime. For example, I can legally carry a concealed handgun under my license until that license is revoked, but if I use it to robsomeone I am charged with Aggravated Robbery, not Unlawful Carry of a Weapon (I wasauthorized to carrybut I was not authorized to rob someone).
Interesting tidbits of Texas law for your reading pleasure and amusement.