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Gamino v. State – Defendant Entitled to Self-Defense Instructions

A man was charged with assault with a deadly weapon, and although he requested that the trial court jury receive instructions regarding self-defense, it was denied, and he was convicted of the offense. The defendant appealed the decision and got the judgment reversed, and the case remanded for a new trial.

Facts of the Case

On August 11, 2013, C. Gamino, and his girlfriend were leaving a club. On the way to their car, they overheard three men make a lewd comment about Gamino’s girlfriend. The men claimed that, upon hearing the conversation, Gamino said “I got something for you,” and pointed a gun at them. Two police officers working security nearby alleged that they heard the exchange. They arrested Gamino for aggravated assault with a deadly weapon.

For the defense, Gamino’s girlfriend, V. Rodriguez, testified that she had known him for 8 years and said he had back and knee issues. After having undergone a couple of surgeries, he was disabled. She also said that when the three men shouted at them, she was afraid for her life.

During the trial, Gamino also gave testimony, stating that the three men did more than make a lewd comment about his girlfriend. They said they were going to grab her and could have sex with her if they wanted. He also said that the men threatened to beat him up and started approaching him and his girlfriend. That was when he pulled his gun from his truck and told them to stop advancing. He testified that he did not say that he had something for them.

Gamino claimed that he took out his gun in self-defense his because he was disabled and feared for his and Rodriguez’s safety.

Texas Second Court of Appeals Decision

At trial, the defendant’s request to have the jurors instructed on self-defense was denied, and he was convicted of aggravated assault with a deadly weapon.

The defendant appealed the judgment with the Texas Second Court of Appeals, which agreed with him. It stated that the trial court erred in denying the self-defense instruction because Gamino’s use of a firearm was done to protect him and his girlfriend from harm. He did not do so for the purposes of using deadly force himself.

Criminal Court of Appeals Review

The State took the case to the Criminal Court of Appeals to have the matter reviewed. The Court stated that a defendant should be entitled to have a self-defense instruction read at their case if any evidence suggests such a reading is warranted. The trial court should not consider the strength or credibility of that evidence when deciding whether or not to instruct jurors. Because Gamino and Rodriguez both stated the gun was displayed because they were afraid for their lives, jurors should have been informed of self-defense charges.

The Criminal Court of Appeals referred to Penal Code § 9.31, which states a person can use force against someone else if they reasonably believe they are in immediate danger of harm. Also, Penal Code § 9.32 says that using deadly force is justified when such actions are necessary to protect oneself.

Gamino admitted to brandishing a weapon in self-defense. Under Penal Code § 9.04, either §§ 9.31 or 9.32 could be used to justify his actions. This statute says that if a person used a weapon to create apprehension in the attacker, such a display is not the use of deadly force. Therefore, the defendant should have been allowed the self-defense instructions at his trial.

The State attempted to argue that Gamino’s display of his gun was not self-defense because he did not threaten to use it for protection. However, the Criminal Court of Appeals said that the defendant accompanied the brandishing of his weapon with the statements “stop,” “get away,” and “leave us alone,” which implied he would use the gun if necessary to keep the three men from advancing.

The Criminal Court of Appeals argued that, although the State’s and the defendant’s versions of the incident differed, it was up to the jury to decide which side to believe. It upheld the Second Court of Appeals’ ruling.

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