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Aug 10
Love4
Apple Fake gun Toy Gun Emoji

Is It a Crime to Use a Fake Gun or Toy Gun in Texas?

By Weapons Charges

How Do Toy Guns or Fake Guns Fit Into the Criminal Justice System?

Apple Fake gun Toy Gun EmojiIn the wake of the recent rise in gun violence, Apple made a big announcement last week that the pistol emoji is being replaced with a water gun emoji. It is no secret that 2016 has been a year filled with gun violence from the shootings in Orlando to the police shootings in Dallas. As a result, gun control has become a hot topic.  While Apple has declined to comment on the change, many believe this is a conscious step for gun control advocacy and others believe this change was fueled because of the individuals facing criminal charges for the use of the gun emoji on social media or in text messages. This change poses the questions of whether, in Texas, it is a crime to point a fake gun at someone and whether you can be charged for a deadly weapon offense when you only used a fake gun or toy gun.

Can You Be Charged With A Deadly Weapon Offense For Pointing a Fake Gun or Toy Gun at Someone in Texas?

If you were to point an Airsoft gun out a car window towards a person in another car, would Texas law find that you committed assault or an aggravated assault? It depends. If there is uncontroverted evidence shown at trial that the “gun” used was actually a fake gun or toy gun then you could only be convicted of assault. However, if all that is presented at trial is your testimony that it was an Airsoft gun and the victim’s testimony that he was in fear because he believed it was a real gun, the issue can get more complicated.

Does a Toy Gun Fit Into the Definition of Deadly Weapon?

Under the Texas Penal Code, a defendant may be found guilty of aggravated assault if he “uses or exhibits a deadly weapon” for the purposes of threatening another with imminent bodily injury. TPC §22.01(a)(2) and §22.02(a)(2). The Texas Penal Code’s definition of deadly weapons includes “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” To determine whether a fake gun or toy gun could possibly be found as a deadly weapon courts look to the broad definition of a “gun” which may include non-lethal devices. Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.—Houston [14th Dist.] 2000, pet. refused). Such non-lethal devices are BB guns, blow guns, Airsoft guns, and water guns, among others. Id. A lot of these toy guns appear realistic or are easily modified to appear realistic which leads to confusion in a criminal case. So much so that in attempt to be proactive, New York’s gun laws require toy guns to be of bright color in order to avoid such confusion.

“A toy gun is not manifestly designed to inflict death or serious bodily injury.”

If uncontroverted evidence is presented that the “gun” used was simply a toy gun there cannot be a deadly weapon finding because “a toy gun is not manifestly designed to inflict death or serious bodily injury” no matter how realistic it appears to the victim and witnesses. Cortez v. State, 732 S.W.2d 713, 715 (Tex. App. 1987) . When it comes to BB guns and pellet guns it becomes more complicated. In Alonzo v. State, a trial for aggravated robbery, where a store manager was placed in fear when defendant brandished a BB gun, the Court found that there could be no deadly weapon finding because no evidence was produced to show that a BB fired from the gun was capable of causing death or serious bodily injury. Alonzo v. State, No. 07-12-00244-CR, 2014 Tex. App. LEXIS 3703, at *10 n.5 (App. Apr. 7, 2014). However, in Murray v. State, another trial for aggravated robbery, where an expert testified that the BB gun used by defendant was not a firearm but could potentially cause serious bodily injury, as warned in its manual, the court found that this evidence is sufficient to support an aggravated robbery conviction. Murray v. State, Nos. 05-13-00070-CR, 05-13-00084-CR, 05-13-00090-CR, 2014 Tex. App. LEXIS 6201, at *59 (App. June 9, 2014).

Ultimately, when it comes to carrying around toy guns, the best practice is to get one that looks as little like a real gun as possible to avoid any confusion. Because, as case law has shown us, if it looks like a deadly weapon, a court might find it to be a deadly weapon.

Dec 22
Love1
Luke Williams Speaks About Ethan Couch

Possible Punishment Scenarios for Ethan Couch Once He is Apprehended

By Juvenile

What will happen to Ethan Couch?

Luke Williams Speaks About Ethan CouchWe’ve recently been asked about fugitive Ethan Couch, the Texas teenager that was adjudicated of intoxication manslaughter, and the potential consequences for the “affluenza” teen once he’s caught. Juvenile determinate sentencing in Texas is an area of law with which most people are unfamiliar.  In this post, attorney Luke Williams explains some of the possible punishment scenarios for Ethan Couch under the juvenile justice and adult criminal justice systems.

Has Ethan Couch violated his probation?

Once Ethan Couch is apprehended, the State will have to prove, by a preponderance of evidence, that the teen violated a term or condition of his probation. Because juvenile records are confidential under Texas law, the public or press has not been made known of the details of Couch’s probation up to this point. But typically – at the very least – a juvenile probation in Tarrant County requires a juvenile to abstain from the use of drugs and alcohol, avoid persons or places who are using drugs and alcohol, and report regularly to the juvenile probation department.

In light of the recent Twitter video showing what purports to be Ethan Couch at a party involving alcohol and drinking games, there could potentially be evidence that he violated his probation by being amongst persons and at a place where persons are using alcohol. This could be difficult to prove. But, the more pressing problem for the teen now is his disappearance. He would undoubtedly have been required to check in with the juvenile probation department on a regular basis or when requested. At this point, as evidenced by the arrest warrant that has been activated for him, we know that he not checked in with probation as required. So, the State will likely have a much easier case to prove that he’s violated his probation by absconding.

Juvenile Probation is Discharged When the Probationer Turns 19 Unless the State Acts to Transfer

Ethan Couch’s probation term is scheduled to extend beyond his 19th birthday. However, the juvenile court will have to discharge Couch on his 19th birthday unless the court has acted earlier to transfer the probation to the appropriate criminal adult County Community Supervision and Corrections Department. This can (and likely will) be done by motion of the state prosecutor in Couch’s case. If transferred, Couch would be under the jurisdiction of the county’s adult probation department and would face adult prison time should the probation be revoked. This would be the normal course of events had Couch not absconded.

What happens once the Ethan Couch is found?

If Couch is caught before he turns 19, and if the court finds that he has violated his probation, the court can either:

  • Keep him on juvenile probation with changing anything (highly unlikely);
  • Modify his probation to add new terms and conditions and keep him on probation; or
  • Revoke his probation to commit him to the custody of Texas Juvenile Justice Department (TJJD) for a determinate sentence that “does not exceed the original sentence assessed by the court” (10 years). The court could commit the juvenile for a shorter sentence than originally assessed, but not for a longer one. See our earlier post to read more about determinate sentences.

If Couch is caught after he turns 19, we can presume that the State will have filed a motion to transfer the probation to adult supervision. If the probation is transferred to adult court, and Couch is found to have violated the probation, then the court could sentence him to serve his original sentence (up to 10 years) in the Texas Department of Corrections – Institutional Division (otherwise known as the adult penitentiary).

Again, because juvenile records are confidential under Texas law, details of Couch’s probation up to this point are unclear. So, there could be other details and/or Orders issued by the judge in Couch’s case that could change or negate the possible scenarios mentioned above.

Regardless, the fact that Couch remains missing is not a good thing for his future.