Are Warning Shots Defined in the Texas Penal Code?

Similar to the definition of “force,” if you’re looking for a definition of “warning shot(s)” in the Texas Penal Code, you won’t find it.  For most that study Texas gun law, the lack of a “warning shot” definition should immediately signal that this type of scenario will likely be left up to the interpretation of a jury.  In general, warning shots tend to get well-meaning people in a lot of legal trouble these days. Blame the movies and TV shows for their portrayal of the “good guys” using warning shots to scare off the “bad guys.”  Maybe this was acceptable in the 1880s, but today, warning shots often take very simplistic cases of threat of force in response to a force or deadly force situation and turn them into a nightmare.

Are Warning Shots Considered Deadly Force in Texas?

The first question we need to consider is whether warning shots are considered deadly force under the Texas Penal Code. Since we have no definition of a “warning shot,” Texas courts (and juries) are left to determine whether a defendant’s use of a warning shot will be considered force or deadly force under the Texas Penal Code. This is not the situation you want to be in, especially if you’re sitting in the defendant’s chair accused of aggravated assault.

While nothing in the Texas Penal Code strictly forbids warning shots, there is a good chance that if you find yourself firing warning shots, you’ll likely be judged on a standard that you used deadly force, instead of mere force. What this means is that you will be allowed a legal justification for your use of a warning shot (as deadly force), but it will need to be in response to a situation where deadly force is justified under Chapter 9 of the Texas Penal Code. In practice, this drastically limits the options in which you can use warning shots.

Now, I’m sure some readers are saying, “I didn’t injure anyone, why are warning shots considered deadly force?” The best way to attempt to explain this is with a couple of examples, and a friendly reminder that absent statutory authority, Texas courts (and prosecutors) are free to interpret your well-meaning warning shots as a flagrant use of deadly force that simply missed that poor soul you shot at.

Warning Shot Examples

Ex. 1 –  Let’s say that Joe, a Texas gun owner, spots two trespassers on the east end of his property during the early evening (sun is still up). Joe’s property was correctly flagged for trespassers to be on actual notice they should not enter Joe’s land. Unaware of what the trespassers’ intentions, Joe grabs his .306 and goes outside to investigate. Upon spotting the trespassers, Joe yells for the trespassers to leave his property immediately, but they ignore him. Irritated, Joe fires a warning shot over the heads of the trespassers to get their attention. Did Joe’s use of a warning shot fit the definition of deadly force?

Most likely, yes. First, we need to recall Section 9.41 of the Texas Penal Code.  This section states a person “is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass or unlawful interference with the property.” In the example given, Joe doesn’t have any statutory or persuasive authority to argue that his use of a warning shot was merely force, or just the threat of force. Likely, a prosecutor will use the fact that Joe fired over the trespassers head as persuasive argument to a jury that Joe was trying to hit the trespassers, but missed. Yes, this happens in Texas courts, despite the fact that Joe will testify he purposely missed and did not intend to harm the trespassers.

However, the prosecutor will likely respond that the mental state element of deadly force only focuses on whether Joe knew that firing his .306 would (or could) result in death or serious bodily injury to the trespassers. But, Joe will have nothing to mitigate the prosecutor’s argument, as any reasonable person (and jury) knows that firing a gun could result in death or serious bodily injury. Since Joe’s warning shot was “deadly force” and Section 9.41 states that only “force” can be used against mere trespassers, Joe most likely does not have a legal justification for his use of deadly force in this situation and could likely be convicted of aggravated assault.

Ex. 2 – Same situation as Example 1. However, after Joe fires the warning shot, one trespasser is startled, removes his concealed handgun, and fires back at Joe. Is Joe justified in responding to the trespasser firing on him? Is the trespasser justified in firing back at Mr. Gun Owner?

This is a worst nightmare scenario, especially for Joe. Though Joe will argue like he did in the previous example, he will likely focus on arguing that he had a legal justification to respond to the trespasser firing at him.  Likely, the trespasser’s action will be characterized as attempted murder, attempted manslaughter, or aggravated assault.

Furthermore, Joe will likely argue that he had a legal justification under Section 9.31(a)(1)(C) of the Texas Penal Code because the trespasser was attempting to commit murder by firing at him. However, doesn’t this sound like the same argument the trespasser will argue about Joe? And, the trespasser will add to this argument by focusing on Texas’ “Stand Your Ground Law.  Essentially, the trespasser will argue that he can shoot the person who was trying to shoot him.

However, the trespasser (or his lawyer) missed a key point in Section 9.31 of the Texas Penal Code. Specifically, Section 9.31(e) states that “a person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force described in this section.” Now, there are two strikes against the trespasser.

First, the trespasser and his companion certainly didn’t have a right to be present on Joe’s land; that’s the reason Joe fired in the first place. Second, the trespasser is technically committing a crime by being present on Joe’s land without permission. If we’re really trying to break this down, the trespasser is going to have a difficult time arguing that he didn’t have awareness that he was trespassing on Joe’s land.  Remember the clearly marked flags from the first example?  So, the trespasser will not likely be successful in arguing no duty to retreat and/or stand your ground (whatever language the attorney wants to impart on the jury) due to the fact that he didn’t meet the criteria of Section 9.31(e) of the Texas Penal Code.

So, with all this time spent on the trespasser, what about Joe? Again, Joe used more force (deadly force) than was reasonably necessary according to Section 9.41 of the Texas Penal Code (trespasser statute). And, likely, the prosecutor will beat this point into the ground throughout the trial, assuming Joe doesn’t take a plea bargain.

But, doesn’t Joe have a right to fire back at the trespasser shooting him? Remember the “stand your ground/no duty to retreat” statute in Section 9.31? Most likely, a prosecutor will argue that Mr. Gun Owner provoked the trespasser by using deadly force first, and as a secondary argument, will attempt to convince the jury that Joe technically broke the law first by firing warning shots, so Joe was technically engaged in criminal activity before responding to the trespasser’s shots.

In closing, if you’re a Texas gun owner, please think about and consider this article before firing warning shots. Just because the large majority of Texas gun owners are law-abiding citizens doesn’t mean that the road to Hell wasn’t built with good intentions, especially if your definition of good intentions includes warning shots.