Deadly Conduct

Have you been arrested and charged with deadly conduct? You may be unfamiliar with what this criminal charge means. Like Terroristic Threat, it doesn’t sound very good. However, what deadly conduct means is not something that easily comes to mind. Some crimes like assault or theft are easy to have an idea what they mean; but, deadly conduct is not a concept that comes to mind.  Some people don’t immediately have a sense of what exactly it is. Deadly conduct is pretty simple to understand. Although it is related to the crime of assault, deadly conduct has key differences. One key difference is that with deadly conduct there is no physical contact or bodily injury that occurs.  Deadly conduct is about the threat of bodily injury; specifically, either the threat of imminent serious bodily injury or discharging a gun. If you are charged with deadly conduct, you need to consult with a criminal lawyer to get an idea of what your options are, how to approach your case, how to develop a strategy. It is important to consult with and retain a criminal defense attorney who has experience handling deadly conduct charges, and who knows how to defend them.      

What is Deadly Conduct? Texas Penal Code Section 22.05

There are two distinct kinds of deadly conduct. It can be prosecuted as either a Class A misdemeanor or a third degree felony. The statute outlining deadly conduct is located in §22.05 of the Texas Penal Code. There are two separate definitions for deadly conduct, and two different penalties. One is a misdemeanor and the other is a felony. Here is the text from the deadly conduct statute:

Section 22.05. Deadly Conduct.

  • (a) a person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.
  • (b) a person commits an offense if he knowingly discharges a firearm at or in the direction of:
  • (1) one or more individuals; or,
  • (2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.
  • (c) recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.  

Misdemeanor Deadly Conduct 

Imminent danger of serious bodily injury is a mouthful. One person puts another person in imminent danger of serious bodily injury. So in a way, misdemeanor deadly conduct could be called attempted aggravated assault, or the threat of an aggravated assault. This isn’t a perfect definition, but it’s an instructive way to think about deadly conduct. To understand what this means we have to break down this sentence of misdemeanor assault. What is bodily injury? What is serious bodily injury? What is imminent danger? Bodily injury simply means pain. If the alleged victim experiences any pain, that is enough. Serious bodily injury has a specific definition. 

What Do Serious Bodily Injury and Imminent Danger Mean?   

"Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.  

What is imminent danger? Imminent danger is not defined in the Texas Penal Code. Whether imminent danger was present, in large part, is up to the alleged victim’s perception of the event. The alleged victim’s statements and their credibility are very important to the case. If your case goes to a jury trial, the alleged victim’s testimony will also be very important. Because what is or is not imminent danger is up to the victim, misdemeanor deadly conduct can be a somewhat complex crime. Sometimes there is little physical evidence. Like many assault cases, these cases can hinge on the statements of just one person.

What Does Reckless Mean? 

What are the penalties of misdemeanor deadly conduct? Recklessly engaging in conduct that places someone in imminent danger of serious bodily injury is a Class A misdemeanor. Recklessly is defined in Section 6.03 of the Texas Penal Code:

"Recklessly:" a person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.    

This is complicated legal jargon, but it comes down to being aware of and then disregarding a significant risk that is unjustified. Class A misdemeanors carry a potential range of punishment of up to one year in jail and a fine of up to $4,000. That is the worst punishments allowed by the charge. It would take very bad case and very bad lawyering to get one year in jail. A victory in a deadly conduct charge is getting a “not guilty” verdict in a jury trial. Getting a dismissal is another victory. If your deadly conduct charge gets reduced to a lesser offense, that is another way to achieve victory. Often, probation is possible. Deferred adjudication is also a possible goal. However, what is possible with your case depends on exactly what happened in your case.    

Felony Deadly Conduct

Felony deadly conduct is characterized by knowingly discharging a firearm in the direction of a person, or an occupied habitation, building, or vehicle. Knowingly has a specific definition in the Penal Code Section 6.03:

"Knowingly:" a person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.  

So, knowingly essentially means that if you point a gun at a building and pull the trigger, you are reasonably certain that the gun will discharge and a strike the building. This is a third degree felony and carries a penalty of two to 10 years in prison and up to a $10,000 fine. Furthermore, if the charge is shooting at a house, building, or vehicle, the person firing the gun must be reckless as to whether there are people inside. Being reckless in this sense just means that the person did not know if anyone was inside or not. To overcome this, the person would have to affirmatively show that he or she knew nobody was home. If you are charged with deadly conduct involving discharging a firearm at a building, call my office and let’s discuss your charge. I work in Tarrant, Dallas, Parker, and surrounding Counties.     


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