Cesar Alejandro Gamino v. State
480 S.W.3d 80
Tex. App.2015Background
- Appellant Cesar Gamino was convicted by a jury of aggravated assault with a deadly weapon for pulling a handgun in downtown Fort Worth; sentence was suspended and he received 10 years’ community supervision.
- Incident: late-night encounter where three men (including complainant Mohamad Khan) were sitting near a parking lot; words were exchanged and Gamino retrieved a pistol from his pickup and displayed it.
- Witnesses (officers and security) observed Gamino with a handgun and ordered him to drop it; officers perceived a threat and drew their weapons; Gamino was handcuffed.
- Gamino’s account: he and his girlfriend were threatened (including threats of sexual assault and physical harm), one man approached aggressively, and Gamino produced the gun to deter an attack and protect his disabled girlfriend.
- The trial court excluded evidence and argument about Khan’s intoxication and the later dismissal of Khan’s public-intoxication charge; the jury received no self-defense instruction.
- On appeal Gamino argued the court erred by refusing a self-defense instruction (Penal Code §9.31) and by restricting cross-examination about Khan’s intoxication; the court reversed on the self-defense-charge error and remanded for new trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gamino) | Held |
|---|---|---|---|
| Whether trial court erred by denying a self-defense instruction | Self-defense was not available because Gamino used a firearm, so only deadly-force doctrine (§9.32) applies and complainant did not use or attempt deadly force | Gamino admitted the conduct (exhibiting the gun) and asserted he displayed it to deter an attack — §9.04 can treat a threatened display as non-deadly force, entitling him to a §9.31 self-defense instruction | Reversed: court erred by denying a §9.31 self-defense instruction because, viewed favorably to defendant, evidence sufficed to raise self-defense under §9.04 and §9.31; harm found and new trial ordered |
Key Cases Cited
- Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007) (defendant entitled to instruction on any defense supported by evidence)
- Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004) (confession-and-avoidance doctrine for defensive instructions)
- Bufkin v. State, 207 S.W.3d 779 (Tex. Crim. App. 2006) (defendant may controvert state’s version and present alternate account to raise self-defense)
- Reynolds v. State, 371 S.W.3d 511 (Tex. App.—Houston [1st Dist.] 2012) (display of a firearm can be treated under §9.04 so that a §9.31 instruction is appropriate)