The Fast and the Furious: the Law on Road Rage in Texas

By Woody published on in Concealed Carry, General

We get asked all the time, “How does the law in Texas apply to a Road Rage situation?” We asked Michele Byington, an attorney at the law firm of Walker & Byington, to give us her analysis based on a fact scenario to see how it would play out.

A membership in Texas Law Shield is like insurance against the worst that could happen.

A membership in Texas Law Shield is like insurance against the worst that could happen.

Facts

Matt is on his way home from work, and it’s been a typical Monday at the office. He’s exhausted and looking forward to relaxing for the remainder of the evening with his family.

While entering the on-ramp to the freeway, In the rear view mirror, Matt sees an erratic driver coming up from behind weaving in and out of traffic. The driver speeds up only to slam on his breaks to avoid hitting the car in front of him. The driver uses the shoulder to pass other motorists. In an effort to avoid the maniac, Matt slows down. The driver jerks into the left passing lane. Staying in the right-hand lane, Matt slows down even more.

The driver cuts off Matt almost hitting the front of his vehicle. The driver slams on his brakes coming nearly to a stop. To avoid rear ending him, Matt swerves onto the right shoulder. The driver swerves onto the right shoulder as well. Matt thinks, “Is he messin’ with me?

Matt slowly veers back into the right-hand lane of traffic, and sure enough, the driver jerks in front of him—again! Trying to escape the situation, Matt puts on his blinker, and pulls off into a gas station on the feeder road. The maniac quickly exits as well, and follows Matt to the gas station parking lot.

Matt grabs his cellphone and calls 911, reports the road rage and that he has been followed to the parking lot. There is movement in the other vehicle. Fearing for his safety, he grabs his concealed handgun from the center console and puts it on the windshield’s dash as a warning to the other driver. Matt’s purpose is to deter the driver from exiting his vehicle since the last thing he wants is any further confrontation. Neither party exists their vehicle as they sit and stare at each other.

When the police arrive, Matt quickly puts the handgun back into the center console so as not to pose any threat to a responding police officer. After all, Matt doesn’t want the police to think he was the aggressor. He exits the vehicle and locks the doors. The police notify Matt that once they finish speaking with the other driver, he will have the opportunity to tell his side of the story. After a few minutes, an officer approaches and states, “Ok bud, tell me what happened.”

Matt tells the story from start to finish leaving out no details including that he put his handgun on the dashboard because he “didn’t know what the other driver was going to do.” The officer responds with, “That’s what I needed to know. Please turn around and put your hands behind your back. You are being arrested for Aggravated Assault.”

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The Law

Aggravated Assault with a Deadly Weapon – A person commits an offense if the person intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. Texas Penal Code Section 22.02.

Legal Analysis Breakdown

Did Matt intentionally or knowingly act?

Yes. It is fair to say that Matt knew exactly what he was doing when he consciously took his handgun from the center console and placed it on the dash.

Did Matt threaten another with imminent bodily harm?

Yes. Since the other driver saw the handgun placed on Matt’s dash, he probably told the police officer that it put him in fear of being shot.

Did he exhibit a deadly weapon during the assault? 

Yes. Matt placed the handgun in plain view by setting it on the dashboard so that the other driver would see it.

Things don’t look so good for Matt, do they? Does he have a chance in court?

Maybe.

What is our argument?

TXLawShieldBear

If I were representing Matt, I would lean very heavily on Texas Penal Code section 9.04. That justification statute states “…a threat to cause death or serious injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.”

What does that mean in plain English? A person who threatens another by the display of a handgun is considered to have used force as long as it was done to scare the other person to get them to stop their unlawful use of force. Further, Texas allows a person to use force to defend themselves anytime they reasonably believe it is immediately necessary due to the danger of bodily injury; i.e., the aggressive driver’s unlawful force. It is an act to deter and nothing else. Let’s put this law to the test with the facts at hand.

Matt was minding his own business trying to make it home after a long day at work. All of a sudden, an erratic driver comes upon him. In an effort to avoid the entire situation, he pulls over and is followed. My argument would be that Matt was in reasonable fear that this madman was going to get out of his car and either attempt to enter Matt’s vehicle or at a minimum hurt him. Therefore, when Matt put his handgun on the dash, it was in order to deter or create apprehension in the other driver to prevent him from exiting his vehicle. This is a guy who trouble came looking for him not vice versa.

What do you think? Do you buy this argument?

Unfortunately, a jury gets to hear from both the defense attorney, and a prosecutor. A prosecutor is going to hound that Matt absolutely committed an aggravated assault without any justification because the threat of force or potentially deadly force was not imminent. Remember, in order to be legally justified in using force or deadly force there must be an imminent threat. A prosecutor is going to attempt to capitalize on the other driver being in his own vehicle and Matt in a 2-ton metallic safety box of a vehicle, and thus there is no imminent threat.

Keep in mind that the aggressive driver is going to have a chance to tell his version of the story too; and since there was no cell phone video, surveillance video in the parking lot, or independent witnesses, it is Matt’s word versus his. We’ve seen cases go to trial on literally nothing more than “he-said-she-said” evidence, so don’t think that just because there are no other witnesses and it’s a battle of credibility that it’s an automatic get-out-of-jail free card.

Who decides whether Matt goes to jail or not?

A police officer may arrest and individual if they have probable cause that a crime has been committed. The crux of the issue is whether or not Matt acted “reasonably.” Reasonable minds can differ. I speak all over the state, and even Texas Law Shield members disagree on whether Matt acted reasonably. It is safe to say that most Texas Law Shield members are somewhat like-minded. Ultimately, the jurors (12 random people, with differing backgrounds and views on gun ownership) will decide whether Matt acted reasonably. Sometimes, taking a case to trial really is a coin flip with your life. With Matt’s case, I think a jury could go either way.

What would have made this a slam dunk of a case? In order for this to be an absolute slam dunk case for Matt, a few things would definitely help. For example, if the driver attempted to get into Matt’s vehicle—a castle doctrine scenario—a person is given the presumption of reasonableness. If that were to happen, Matt would walk into the courtroom already reasonable. Another thing that would make life easier is if the aggressive driver exited his vehicle and displayed a deadly weapon, which would cause Matt to pull his handgun in response. If one of these facts isn’t present, there is no clear win to this scenario.

Finally, it would have been helpful if he had called his attorney before talking to the police. We’ve seen people, while they’re trying to talk themselves out of an arrest, talk themselves into a felony charge. The police are at the scene to gather evidence, and are not judges who decide who was right or wrong. Since your freedom and rights are at risk depending on what you tell the officer, it may be a good idea to call your Texas Law Shield emergency hotline to get advice from an attorney!

Originally posted on the Texas Law Shield Blog

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Comments (45)

  • Ken

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    In my opinion there are 2 things that’s have helped to bring this once great nation to its present state of affairs … Stinking lawyers AND polititions , although you could call them the same kind of cockroaches . just cousins … what gives the out of control driver the right to ” play ” with you and you family’s life/wellbeing ? .you better believe a off duty lawdog or the mayor would surly have faired better than just a ” working slug-bug nobody citizen” ..… just my opinion…..😕

    Reply

    • Beverly Forrester

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      And that, my friend, is why we need to stand up firmly for our rights. Unfortunately, you are very probably absolutely right.

      Reply

    • Matt

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      No, it’s lack of education. Trailer parks full of people with a 9th grade education that can’t spell and don’t understand how anything really works.

      The demonization of education is a travesty. This has led the uneducated to distrust and dismiss the opinions of educated people.

      Reply

    • Zach

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      Which “educated” people should we trust? The Clintons or the Grubers of the world? “Trust me, I know what is best for you.”

      I don’t think so. Education = freedom.

      Reply

  • Beverly Forrester

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    In Maine we have a 2nd amendment right to carry a firearm on our person whether it is open carry or concealed.

    Reply

  • David Woods

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    Matt attempted to escape the situation, and was pursued. IMO, that alone should constitute a threat unless the aggressor simply got out of his car, and walked in the store to buy something. To follow someone to a parking lot and remain in your car, as if you are watching for him to get out of his car, should constitute a threat. Especially since he didn’t drive off when he saw the gun. You shouldn’t be able to say you felt threatened or assaulted when you had a way of escape that you chose not to use. Especially when you are the one that followed “Matt” into the parking lot.

    Reply

  • Jim in Conroe

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    You are allowed to have a firearm, concealed or not, on your own property. You can therefore carry it back and forth to your car, in which you conceal it. If you have a license to carry, when you arrive at your destination, you can carry your firearm. If you don’t have an LTC, the firearm needs to remain in your car, concealed.

    Reply

    • Beverly Forrester

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      You have got to be kidding me! Texas cannot be that naive about “conceal carry”! As a resident of Maine our concealed carry laws are WAY different. It is NOT just on your own property, but concealed on your person except for state buildings and state parks or property on which it is clearly posted “No Firearms”

      Reply

    • Dragonc

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      While we Texans enjoy a fair degree of freedom in where we carry of keep our weapons, we are NOT barred from carrying them in all state buildings. In fact, at the state capitol building, all licensed carriers are free to enter with their handguns, while unlicensed individuals must pass through metal detectors. As one who has been carrying for over 50 years, I marvel at the ludicrous idea that there really are places where we are not allowed to carry our weapons. It has never made any sense to me that hospitals, schools, courtrooms, and the like are off-limits to the carry of firearms, since by posting these venues as such literally turns them into killing fields for criminals who seek to attack an unarmed population. In these cases, many concealed carriers simply ignore the prohibition and, and as long as there is no metal detector, they carry their pieces anyway. If one does not act like they are carrying, one is not likely to be bothered by somebody who may be monitoring the situation. Now, if you want naivete, try this one…..Licensed carriers are prohibited from carrying their weapons inside the premises where a gun show is held. THAT one really does boggle the imagination.

      Reply

    • Deplorable Robert

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      We here in Tennessee also enjoy open or concealed carry but only with a permission slip from the Big Brother.At east in Knoxville, one can not carry inside the city-county building as you must pass through a metal detector. I once left my EDC in my truck in the car parking lot, but forgot my extra magazine in my Harley jacket pocket. Picks up good on XRay!. Though, I was nicely told I couldn’t bring it in, which I just returned to car lot and left it there. I also once went through the scanner but left my leather holster on, which one mean Sheriff deputy woman confiscated it until I left which I didn’t see the reasoning behind it.i did tell the deputy that my 100 dollar Galco holster better be there on my return!
      But I do carry everywhere including hospitals, church, only other place that is posted that I do respect is the post office and some don’t realize that you are not LEGALLY allowed to have one in your auto in the parking lot ( Fed Property). Been to one hospital Emergency room entrance that was not posted, and a mall that IS posted at the main entrances, but if you enter through Sears, there is no posting, and none where you enter the interior doors to the mall from said store. Concealed means no one will know unless you use it, or must pass through a metal detector.

      Reply

    • Beverly Forrester

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      You arevright! That one is a mind boggler! Here in Maine the reason for not carrying in our courtrooms is because the baliffs are trained, current law enforcement officers in suits not uniforms. They are armed and if an occasion transpired where deadly force was used they ( the baliffs ) would be the ones employing the firearms. That way, hopefully, no one gets caught in the cross fire. However, I am with you in the need for more people to be armed, not less. It isn’t safe anymore to go to Walmart, McDonald’s, a mall or any of hundreds of places where we used to go, not giving it a second thought. Life has changed drastically just in the 64 years that I have been alive.

      Reply

    • Jim in Conroe

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      Texas is not that naïve. We can open or concealed carry with a License to Carry, when we are walking around. In a car, you may have a handgun, whether or not you have an LTC, but it must be concealed.

      On your own property, no LTC is required for either open or concealed carry. I was addressing the issue of how to legally get the firearm into your car to conceal it, assuming the car is parked on your property.

      Reply

    • Tommy_Guido

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      @ Jim in Conroe

      I live in Georgia where my GA weapons license allows for open or concealed carry, so if I have a handgun on my dashboard it wouldnt be considered assault since it wouldnt need to be concealed.

      Reply

    • Jim in Conroe

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      The same rules for open or concealed carry apply in Texas – either is allowed with a License to Carry – with exceptions for schools, court rooms, sporting stadiums, bars, and a couple of other places.

      However, even though you can have a handgun in a car with or without an LTC, it must be concealed, so putting it on your dash or the passenger seat is not an option.

      Reply

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