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GAMINO, CESAR ALEJANDRO

PD-0227-16 05/25/2016

  1. "Did the court of appeals err in finding that Respondent admitted to threatening his victim, and thereby admitted to committing aggravated assault with a deadly weapon, by testifying he held a gun at his side with the barrel pointed at the ground?"
  2. "Did the court of appeals err by relying on law not applicable to this case in order to reach its holding?"
  3. "Did the court of appeals err when it cited a case as support of an application of law that the case actually held to be error?"

Gamino was convicted of aggravated assault by threat while exhibiting a deadly weapon. He claimed he retrieved his gun from his car and displayed it because he felt threatened but did not point it at, or otherwise threaten, the victim. The trial court denied his request for a self-defense instruction.

Gamino appealed. The State argued that Gamino's use of a deadly weapon, i.e., deadly force, was not justified because there was no evidence the victim used or attempted to use deadly force against Gamino. The court of appeals disagreed. Citing Penal Code section 9.04, it held that a threat to cause death or serious bodily injury is not "deadly force" "as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary." Thus Gamino was entitled to an instruction under section 9.31. The State also argued that Gamino was not entitled to self-defense because he denied threatening Gamino. The court of appeals held that Gamino was not bound by the State's allegations and the display of the gun constituted a threat.

The State argues that the display of a handgun pointed at the ground is not a threat per se and so Gamino's "admission" was insufficient. The State also faults the court of appeals for relying on section 9.04 because its crucial language applies only "[f]or the purposes of th[at] section"; section 9.04 was requested in the case relied upon by the court for entitlement but was not referenced in Gamino's generic request for a "self-defense issue." Moreover, Gamino's testimony did not show that his purpose was limited to "creating an apprehension," as required by the statute.

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