Disorderly Conduct -- a new case helps us!

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Original URL: http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05topin.ask+D+402639

Opinion Filed May 22, 2008

Here is the part of the case dealing with disorderly conduct:


[align=center]The State argues the officers had probable cause to believe
evidence of disorderly conduct would be found in appellant's apartment.
A person commits the offense of disorderly conduct if he displays a
firearm in a public place in a manner calculated to alarm. Tex. Penal
Code Ann. § 42.01(a)(8) (Vernon Supp. 2007). A “public place” is any
place to which the public or a substantial group of the public has
access, including common areas of apartment houses. See Tex. Penal Code
Ann. § 1.07(a)(40) (Vernon Supp. 2007). The record shows the
officers responded to a call about someone “displaying” a gun on a
balcony in a different building than appellant's apartment. Based on
“other descriptors and the conversation with the dispatcher,” the
officers determined the gun was displayed on appellant's balcony.
However, the record does not contain any facts regarding the “other
descriptors”, the conversation with the dispatcher, who saw the gun
displayed, the manner in which the gun was displayed, or whether the
balcony was in fact open to public view. Although the State maintains
the fact that someone called the police is sufficient to show the gun
was displayed in a way calculated to cause alarm, we cannot agree. The
mere fact that the police were called is not evidence of the way in
which the gun was displayed. Nor is the mere fact that a person saw a
gun “displayed” on a balcony evidence that the balcony was in a public
place. Without some evidence describing the balcony or the manner in
which the gun was displayed, we cannot conclude there were any facts or
circumstances showing the gun was displayed in a public place in a
manner calculated to alarm. [/align]
I take from this:

1) Someone simply seeing a gun and calling police isn't evidence of "manner calculated to alarm". This should stamp out any lingering fears about someone carrying a long gun in a non-threatening manner in public and being convicted of DC.

2) Their use of display in quotes ("display") might mean that a gun able to be seen isn't "display" for the purposes of the statue. Rather, it "display" may imply out of a holster being actively used, waved, drawing attention to it, etc. This would be helpful for someone openly carrying in a holster on their own property -- as I was this morning while mowing the grass -- if accused of DC.

3) "The manner in which the gun was displayed" is important. See above. Display doesn't mean visible, it means in some sort of active use.

4) Where this really gets fun is with the carry of a pre-1899 handgun. Since that is NOT proscribed by Section 46 of the Penal Code (UCW, prohibited places, tresspass by a license holder, etc.) and this opinion suggests that a DC charge would fail (assuming it was being carried in a non-threatening way) either because of the intent part or since a pre-1899 handgun ISN'T a handgun at all (though it probably still is a "deadly weapon"), is there any charge that has a chance of sticking?

I've love for any TX LEOs reading this to chime in. Is openly carrying a pre-1899 handgun illegal under any Texas statute and if you think so, please post it and your reasoning. If I'm missing something I honestly want to know about it. Also, LEOs, how would you handle a man-with-a-gun call when you discovered him to be an open carrier of a pre-1899 handgun?

Thanks to all, SA-TX

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This is certainly a positive ruling toward the protection of a gun owners right to display a weapon on private property and in other venues where the carry of a weapon is allowed.

As for the carry of a pre-1899 handgun, bare in mind that the weapon need not even be real to fall under this provision. If the object is displayed in a manner that the ordinary person would believe it to be real and with the intent to cause alarm, then it is stillan offense. With this in mind, the carry of a pre-1899 would probably still be a problem with any officer that is stopping you for carryingthe weapon in the first place. I doubt he would be moved by the fact that the particular handgun was not actually a legal weapon under the law or that he would agree with that fact in the first place). Most officers tend to takea "leave it to the DA and the courts to sort out" idea.

This is the problem with our system as it stands. :banghead:An officer can arrest you for whatever he wishes without fear of repercussions. Even if he knows the DA will probably not prosecute the case, he can still make the arrest if he has even the slightest argument to support his opinion that your actions were illegal. Basically, I see this ruling asaffording one more protection from ultimate conviction, and to a lesser degree, fromprosecution, than it does from initial arreston thecharge.

I would not go as far as to say the idea OCinga pre-1899 handgun was "beating a dead horse", but I would say the horse is certainly very lame.

Just my thoughts on the subject.

Doc

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*slips remington new army into hip holster with a tie down* now its time to head to walmart, and the bank, and the post office....and the courthouse....:what: just kiddin'

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I guess this means cleaning your rifles out on the balcony is now legal.

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ilbob wrote:

I guess this means cleaning your rifles out on the balcony is now legal.

Click to expand...

Actually, it reads just the opposite.

The person in this case displayed a weapon on a balcony and was arrested for it and charged with disorderly conduct (exactly what he was doing at the time or the manner in which it was displayed was not described). He was subsequently found guilty by the trial court, however, this ruling by the appellate courtoverturns that ruling.

The appellate court has basically said that simply displaying a weapon in an area where you are allowed to do so is NOT illegal. In other words, as long as you do not display it in amanner intended to cause alarm, it can not be considered disorderly conduct.

Keep in mind this only pertains to the display of a weapon that is not prohibited by another area of the law, i.e., they are not saying you can carry a handgun openly in a public place, but since it is otherwise legal to carry a long gun or a shotgun, then simply carrying it does not in itself constitute disorderly conduct even if it alarms someone and they call the police.

Doc

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DocNTexas wrote:

ilbob wrote:

I guess this means cleaning your rifles out on the balcony is now legal.

Click to expand...

Actually, it reads just the opposite.

The person in this case displayed a weapon on a balcony and was arrested for it and charged with disorderly conduct (exactly what he was doing at the time or the manner in which it was displayed was not described). He was subsequently found guilty by the trial court, however, this ruling by the appellate courtoverturns that ruling.

The appellate court has basically said that simply displaying a weapon in an area where you are allowed to do so is NOT illegal. In other words, as long as you do not display it in amanner intended to cause alarm, it can not be considered disorderly conduct.

Keep in mind this only pertains to the display of a weapon that is not prohibited by another area of the law, i.e., they are not saying you can carry a handgun openly in a public place, but since it is otherwise legal to carry a long gun or a shotgun, then simply carrying it does not in itself constitute disorderly conduct even if it alarms someone and they call the police.

Doc

Click to expand...

Doc,

Acutally he was not arrested for DC. He was arrested on drug charges. The DA tried to use the alleged DC as the probable cause for the search that turned up the drugs. Since the appeals court found no disorderly conduct (because it was unclear if the balcony was a public place and there was no evidence of how the weapon was carried), the search was invalidated.

I agree with you that the import of the opinion is that simply carrying a weapon in public while breaking no other law is NOT disorderly conduct simply because someone calls the police.

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DocNTexas wrote:

This is certainly a positive ruling toward the protection of a gun owners right to display a weapon on private property and in other venues where the carry of a weapon is allowed.

As for the carry of a pre-1899 handgun, bare in mind that the weapon need not even be real to fall under this provision. If the object is displayed in a manner that the ordinary person would believe it to be real and with the intent to cause alarm, then it is stillan offense. With this in mind, the carry of a pre-1899 would probably still be a problem with any officer that is stopping you for carryingthe weapon in the first place. I doubt he would be moved by the fact that the particular handgun was not actually a legal weapon under the law or that he would agree with that fact in the first place). Most officers tend to takea "leave it to the DA and the courts to sort out" idea.

This is the problem with our system as it stands. :banghead:An officer can arrest you for whatever he wishes without fear of repercussions. Even if he knows the DA will probably not prosecute the case, he can still make the arrest if he has even the slightest argument to support his opinion that your actions were illegal. Basically, I see this ruling asaffording one more protection from ultimate conviction, and to a lesser degree, fromprosecution, than it does from initial arreston thecharge.

I would not go as far as to say the idea OCinga pre-1899 handgun was "beating a dead horse", but I would say the horse is certainly very lame.

Just my thoughts on the subject.

Doc

Click to expand...

I agree with 95% of the above. In general you can "beat the rap, but you can't beat the ride." I also agree that it doesn't have to be a firearm to qualify (the statue says "deadly weapon" and that definition can be found at Penal Code 1.07(a)(17). Sure, if youintentionally or knowlingly ... display such an item in a way calculated to alarm, you'd be guilty of DC. That would be true pre-1899 or not. Of course this isn't the situation I'm describing of a person simply openly carrying a holstered pre-1899 handgun.

Let me be restate what I've said in all the posts that have discussed pre-1899 open carry:

1) The police will almost certainly NOT know the law.

2) You will almost certainly be arrested for something (probably UCW).

3) You will have to fight to get your gun back.

4) You will probably have to fight the charge in court, though the law is on your side and I think you would prevail.

5) There might be repercussions on your ability to keep your CHL, particularly if convicted of any Class B or higher charge.

6) Even if you win, you will have had to shell out for an attorney.

7) For all of the above reasons, I am NOT saying people should rush out and do this and I certainly am not doing it.

It is so sad that nearly everyone who has looked at this agrees that it is legal, but everyone also understands the above. In short -- we shy away from something that, by Texas law, is perfectly legal simply because police and perhapsprosecutors are ignorant of this aspect of the law.

What I am hoping to find is a court case directly on point regarding the carrying (doesn't have to be open carry) of a pre-1899 weapon. Given how long UCW has been on the books, I can't believe that someone hasn't been arrested for UCW while carrying a pre-1899 weapon and then had the charges dismissed. If that can be found, then an education campaign can begin with chiefs of police, sheriffs, and DAs. Much like what has been done in WA with open carry, we would use the court precedents to bring about better officer training.

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SA-TX wrote:

DocNTexas wrote:

ilbob wrote:

I guess this means cleaning your rifles out on the balcony is now legal.

Click to expand...

Actually, it reads just the opposite.

The person in this case displayed a weapon on a balcony and was arrested for it and charged with disorderly conduct (exactly what he was doing at the time or the manner in which it was displayed was not described). He was subsequently found guilty by the trial court, however, this ruling by the appellate courtoverturns that ruling.

The appellate court has basically said that simply displaying a weapon in an area where you are allowed to do so is NOT illegal. In other words, as long as you do not display it in amanner intended to cause alarm, it can not be considered disorderly conduct.

Keep in mind this only pertains to the display of a weapon that is not prohibited by another area of the law, i.e., they are not saying you can carry a handgun openly in a public place, but since it is otherwise legal to carry a long gun or a shotgun, then simply carrying it does not in itself constitute disorderly conduct even if it alarms someone and they call the police.

Doc

Click to expand...

Doc,

Acutally he was not arrested for DC. He was arrested on drug charges. The DA tried to use the alleged DC as the probable cause for the search that turned up the drugs. Since the appeals court found no disorderly conduct (because it was unclear if the balcony was a public place and there was no evidence of how the weapon was carried), the search was invalidated.

I agree with you that the import of the opinion is that simply carrying a weapon in public while breaking no other law is NOT disorderly conduct simply because someone calls the police.

Click to expand...

Interesting. I have not had the opportunity to read the entire ruling of the case, merely excerpts. Personally, I agree with the appellate courts decision in this case, but, I feel that the State supreme will overturn it. The State SC has typically held that any evidence of a crime found during the investigation of another is admissible. It really comes down to the merits of the search for the gun. If allowed in, they were legal, if they entered against the will of the controlling parties of the property being search, then probably not. Again, I agree with the appellate court on this one, but the SC typically leans the other way, so if it goes that far I fear it will be overturned. Either way, the opinion of the court that "the mere presence of a weapon in itself does not constitute DC" stands and can be considered aplus for pro-carry.

Doc

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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).

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klingonguy07 wrote:

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).

Click to expand...

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.

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SA-TX wrote:

klingonguy07 wrote:

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).

Click to expand...

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.

Click to expand...

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.

Doc

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DocNTexas wrote:

SA-TX wrote:

klingonguy07 wrote:

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).

Click to expand...

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.

Click to expand...

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.

Doc

Click to expand...

Hi Doc,

As the OC, I can say for certain that "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" is not accurate.

The original post concerned the court case which turned on what constitutes "disorderly conduct".There was no pre-1899 firearm present in that case. At the end Imentioned how this might aid those who wanted to openly carry a pre-1899 handgun in that it seemed to stand a good chance of not being DC under the decision (i.e. -- simply seeing a handgun and being frightened enough to call police does NOT show intent on the part of the carrier that was "calculated to alarm"). The court was also intersted in how the weapon was "displayed". Never did I posit a scenario where the carrier was committing a crime.

If there is any lingering confusion, let me try to clear it up now:

1) This ruling helps to clarify what the Dallas-based Court of Appeals looks for regarding "disorderly conduct".

2) I speculated on what this would mean for the open carrier of a pre-1899 handgun or a long gun. My conclusion was that the court was very intersted in how the firearm was "displayed" and whether or not there was provable intent of actions "calculated to alarm".

3) Where commiting crimes with pre-1899 handguns came into the discussion, I cannot say. I never broached this subject, nor would I. My posts are conerned with LAWFUL behavior.

4) I am not going to go through the disclaimers YET AGAIN, but suffice it to say I am NOT in favor of violating the law nor of openly carring a pre-1899 handgun for the reaons stated by Doc (big hassles, though legal).

5) Someone else responded with the "commit a crime" scenario and I merely shot it down (pun intended) by saying that whether or not the item was a "firearm" under the law was immaterial as crimes were being commited whether "with a firearm" or not. Doc elaborates on this point but the bottom line is that I was never defending using a pre-1899 firearm in the commission of a crime! I don't care if it is aggravated or non, that is completely beside the points I am making and that response should be directed to someone else. I AGREE with Doc about the enhancement based on a deadly weapon and made the point myself in the example of a snake (yes, there are many, many more things that have qualified as "deadly weapons" over the years).

Please, let's stick to the original topic of the post.

Thanks, SA-TX

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SA-TX wrote:

DocNTexas wrote:

SA-TX wrote:

klingonguy07 wrote:

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).

Click to expand...

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.

Click to expand...

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.

Doc

Click to expand...

Hi Doc,

As the OC, I can say for certain that "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" is not accurate.

The original post concerned the court case which turned on what constitutes "disorderly conduct".There was no pre-1899 firearm present in that case. At the end Imentioned how this might aid those who wanted to openly carry a pre-1899 handgun in that it seemed to stand a good chance of not being DC under the decision (i.e. -- simply seeing a handgun and being frightened enough to call police does NOT show intent on the part of the carrier that was "calculated to alarm"). The court was also intersted in how the weapon was "displayed". Never did I posit a scenario where the carrier was committing a crime.

If there is any lingering confusion, let me try to clear it up now:

1) This ruling helps to clarify what the Dallas-based Court of Appeals looks for regarding "disorderly conduct".

2) I speculated on what this would mean for the open carrier of a pre-1899 handgun or a long gun. My conclusion was that the court was very intersted in how the firearm was "displayed" and whether or not there was provable intent of actions "calculated to alarm".

3) Where commiting crimes with pre-1899 handguns came into the discussion, I cannot say. I never broached this subject, nor would I. My posts are conerned with LAWFUL behavior.

4) I am not going to go through the disclaimers YET AGAIN, but suffice it to say I am NOT in favor of violating the law nor of openly carring a pre-1899 handgun for the reaons stated by Doc (big hassles, though legal).

5) Someone else responded with the "commit a crime" scenario and I merely shot it down (pun intended) by saying that whether or not the item was a "firearm" under the law was immaterial as crimes were being commited whether "with a firearm" or not. Doc elaborates on this point but the bottom line is that I was never defending using a pre-1899 firearm in the commission of a crime! I don't care if it is aggravated or non, that is completely beside the points I am making and that response should be directed to someone else. I AGREE with Doc about the enhancement based on a deadly weapon and made the point myself in the example of a snake (yes, there are many, many more things that have qualified as "deadly weapons" over the years).

Please, let's stick to the original topic of the post.

Thanks, SA-TX

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SA-TX,

I am sorry but I feel you totally misread my post.

I was addressing the post by Klingonguy07 (which is included as a quote above) for which you replied (which is also included above). My use of the term "original poster"was referring to the initial poster of this string of dialog, not the thread.

In the quoted post by Klingonguy07, he gave the following scenario:

"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. "

You in turn responded to his post with a statement of doubt as to whether the use of a pre-1899 in thisscenariowould constitute a charge of"armed" robberybut merely a charge of robbery, then you continued by saying it would certainly constitute a charge of "assault with a deadly weapon".

I was simply addressing the topic of this post brought about by Klingonguy07 and elaborated on by you.

I simply pointed out that neither charge being discussed actually existed in Texas and identifiedwhat theequivalent (actual) charge would be in Texas.I then continued by pointing out the fact thatthe use of the pre-1899 weapon in this case would clearly meet the merits of this charge. Finally, I pointed out that the scenario used by Klingongut07 was not relevant to his point regarding whether a pre-1899 was legal to carry or not or if it met the provisions of a charge of DC, because it involved the commitment of a separate crime and not simple possession.

While I used the term "original poster" I felt it was quite clear that I was referring to the quoted string of discussion and I am not sure where you got the idea that I was addressing your original post for the thread. I am sorry if I gave that impression. Incidentally, I consider the topic of "the post" to refer to the post being discussed at that time, that beig the posted by Klingonguy07, and your original post to bethe topic of "the thread". Perhaps this is the root of the confusion.

At the same time, I am not sure why you believe Klingonguys07's post or any of the dialog that followed was off topic? In your original post for the thread (i.e. the topic for the thread) you discussed how this ruling would affect the charge of DC and in #4 you specifically asked:

“4) Where this really gets fun is with the carry of a pre-1899 handgun. Since that is NOT proscribed by Section 46 of the Penal Code (UCW, prohibited places, tresspass by a license holder, etc.) and this opinion suggests that a DC charge would fail (assuming it was being carried in a non-threatening way) either because of the intent part or since a pre-1899 handgun ISN'T a handgun at all (though it probably still is a "deadly weapon"), is there any charge that has a chance of sticking?“

Klingonguy07 directly addressed these issues and I merely elaborated on both his and your comments,which I consider to be part of the topic. While I agree that Klingonguy07's scenario went a little off base, something I went out of my way to clearly point out in my closing paragraph, it was still discussing his take on the pre-1899 issue you raised in you original post for thethread.

So, I am sorry if you misread my post or disagree that this line of dialog is withing the topic range, but I do not feel anyone was trying to get off topic and apologize if you feel we did. I realize it is easy to misread or misinterpret the writing of another just as it is easy to fail at expressing your point when putting a thought into text (especially when writing late at night or in a hurry). I often write something that I feel is clear and to the point only to read it later and see how truly vague it is. I just wanted you to understand that I grasp your position and the point of the thread and that there was no intent to extend the thread beyond that.

Doc