Resolving disorderly conduct in a world of open carry

By Andrea L .Westerfeld
Assistant County & District Attorney in Ellis County

Disorderly conduct includes intentionally or knowingly displaying a firearm in public “in a manner calculated to alarm.”1 This was once a fairly straightforward statute. But now that open carry is legal in Texas, a person can legally carry a firearm out in public where he could not before. How can we determine what behavior is calculated to alarm and what is reasonable open carry? In State v. Ross, the Court of Criminal Appeals had to delve into this question. And with a concurrence and three dissents, it was not an easy one to resolve.

The facts

Little is known regarding the facts of the offense itself because this was an appeal of a pretrial motion to quash. We only know that Dai’Vonte Ross was charged in Bexar County with displaying a firearm in a public place in a manner calculated to alarm. He filed a motion to quash the indictment, arguing that the indictment did not provide sufficient notice because it was required to allege what about the way he displayed the gun was calculated to alarm.2 The State claimed that this was evidentiary and did not need to be pleaded. The trial court granted the motion, and the State appealed. The San Antonio Court of Appeals affirmed, finding that the term “alarm” is vague and a defendant is entitled to additional notice.3

Alarmingly vague

Usually tracking the statute will be sufficient in an indictment, but sometimes additional information is necessary to give a defendant enough notice.4 Generally, a statute that uses an undefined and indefinite term will need additional information, such as when only one of multiple manners and means in a statute is chosen. So the CCA’s analysis turns on whether the term “alarm” is vague or indefinite.

As usual with an undefined term, the CCA began its analysis by looking at the common usage. The CCA and the lower court of appeals both generally agreed on the common definition: “striking with fear, particularly in a sudden or exciting manner.”5 But the court of appeals still believed that the term was vague because “conduct that alarms some people does not alarm others.” Thus, the court of appeals believed, a person could not know from the statute what behavior was forbidden because he could not know what would alarm all people.

The CCA rejected this explanation, finding that the statute does not require a person actually be alarmed. Rather, the focus is whether the firearm was displayed in a way calculated to alarm. Calculated, when used with an infinitive verb (“to walk” or “to run”), has always been interpreted as meaning “likely.”6 Thus, “calculated to alarm” means likely to alarm.7 This gives it an objective reading, invoking the reasonable person standard.

Finally, the CCA considered the intent element. Because the underlying conduct—displaying a firearm—is not illegal, then the intent requirement applies to the surrounding circumstances that make it illegal.8 In this instance, that would be the manner calculated to alarm.

Putting the complete analysis together, the State must prove that the defendant 1) intentionally or knowingly displayed a firearm and 2) he intended or knew it was in a manner objectively likely to frighten an ordinary, reasonable person.9

Musings on open carry

The CCA then decided to discuss specifically how the statute balances with open carry. It is important to remember that this portion of the opinion (Part III-B, for those following along at home) is only a plurality. Judge Yeary joined the majority opinion but did not join in Part III-B, filing a separate concurrence. So this is not controlling authority, only some considerations on the issue.

The open carry statute authorizes a licensed person to openly carry a handgun in a public place.10 Part of the statute provides that it is an offense for a licensed person to intentionally display the handgun in public unless the gun was carried in a shoulder or belt holster.11 Thus, a person who openly carries a gun in another way, such as in an ankle holster, would be violating this section. But importantly, the disorderly conduct statute requires the additional element of displaying in a manner calculated to alarm, not merely displaying in an unapproved manner.12 Because of that additional element, disorderly conduct does not conflict with open carry.

Judge Yeary believed that the plurality went too far with this section because the Court was not called upon to interpret the open carry statute.13 He did not believe that merely carrying a gun in a holster would amount to “displaying” it under the statute. Rather, displaying would require some overt act, such as withdrawing it from the holster or drawing conspicuous attention to it. A person may display by drawing attention to a gun in a shoulder holster without committing an offense, but if the gun is in a leg holster, it may violate the open carry statute.

In any event, neither the plurality opinion nor the concurrence has a majority, so the Court’s musings on how the open carry statute might be applied individually is simply guidance for prosecutors. It is not controlling authority.

Notice and deciding after the fact

Ultimately, the CCA determined that the language of the statute alone provides sufficient notice for Ross to defend himself. He can begin preparing his defense that either his conduct was objectively not frightening or that he did not intend it to be.14 Tracking the language of the statute is enough.

The dissents pointed out the simple fact that two courts and multiple judges and justices have disagreed on how this statute is meant to be interpreted. If even judges disagree, how can the statute be clear enough to give notice to a layperson?15 Judge Walker explained that a person is entitled to adequate notice in the charging instrument to prepare his defense. But there are at least two ways of reading “calculated to alarm”—the majority’s “likely to alarm” and the dissents’ “deliberately planned to alarm.” Because there are two reasonable readings, Judge Walker argues, the indictment must provide additional notice.

But it is the procedural posture of the case that gives the saving grace. This is a pretrial motion to quash. The defendant’s concern over which definition would apply has now been resolved by the Court’s opinion. Because the case had not yet gone to trial, the defendant is now facing only the question of preparing his defense and knows which interpretation the case is based on.16 Does that mean that the decision would have been different if the issue had been raised later, such as in a sufficiency analysis? At any rate, now that the issue has been resolved, let’s hope it will forestall any future challenges on that matter.

How inherently alarming in a gun?

The dissents raised a final issue: Is it possible to display a firearm in public without it being in a manner calculated to alarm? Judge Slaughter argued in her dissent that “many ordinary people, even in Texas, may become alarmed at the sight of a gun in person,” despite open carry laws.17 Thus, most gun owners are aware that people may be alarmed if they carry a gun openly in public. If the focus of the disorderly conduct statute is, as the majority argues, whether a person is “likely” to become alarmed, then Judge Slaughter believes any instance of open carry is enough to satisfy the requirement. This is why she advocated the “deliberately planned” definition of calculated to alarm rather than simply likely.

Judge Yeary took issue with Judge Slaughter’s description of what is common knowledge.18 He noted that she cited only to a law professor and two note-writers, not any empirical studies. His own belief is that “the alarm at the sight of a citizen merely carrying a holstered handgun is quite irrational, especially here in the Lone Star State.” A person alarmed at the mere sight of a holstered gun would thus not fit the objective reasonable-person standard the court adopted.

This is an issue that all prosecutors will face when prosecuting a case of disorderly conduct by displaying a gun. When would an objective, reasonable person feel alarmed by the sight of a gun? Now that open carry is legal, would a reasonable person feel alarmed simply by the sight of a gun in a holster, as Judge Slaughter argued, or would it take some additional act? A prosecutor facing such a case should be prepared with facts showing why the display of the gun was particularly alarming—did the defendant put his hand on the butt of the gun? Did he say something suggesting he intended to use it? Did he start to draw it from the holster? Did he wave it in the air? All State v. Ross tells us for certain is that we do not have to plead such facts in the indictment. We will still need to prove them to our jury’s satisfaction at trial.

Endnotes

[1 ] Tex. Penal Code §42.01(a)(8).

[2] State v. Ross, No. PD-1066-17, 2019 Tex. Crim. App. LEXIS 512, slip op. at 2 (Tex. Crim. App. May 22, 2019).

[3] State v. Ross, 531 S.W.3d 878 (Tex. App.—San Antonio 2017).

[4] State v. Zuniga, 512 S.W.3d 902, 907 (Tex. Crim. App. 2017).

[5] Ross, No. PD-1066-17, slip op. at 6-7.

[6] See, e.g., Tex. Code Crim. Proc. Arts. 36.14 (calculated to arouse), 36.19 (calculated to injure), and 38.05 (calculated to convey).

[7] Ross, No. PD-1066-17, slip. op. at 11.

[8] Id., slip op. at 12.

[9] Judge Newell, although dissenting, agreed with the majority’s interpretation of the meaning of the phrase “calculated to alarm.” Ross, slip op. at 2 (Newell, J., dissenting), but he believes that because there is such a “molecular-level distinction” between “displaying” and merely “carrying,” the State should specify which facts it is relying on to prove the difference.

[10] Tex. Penal Code §46.035.

[11] Tex. Penal Code §46.035(a).

[12] Ross, No. PD-1066-17, slip op. at 15.

[13] Ross, slip op. at 1 (Yeary, J., concurring).

[14] Ross, slip op. at 19

[15] Ross, slip op. at 1 (Walker, J., dissenting); Ross, slip op. at 4-5 (Slaughter, J., dissenting).

[16] Ross, slip op. at 20-22.

[17] Ross, slip op. at 7 (Slaughter, J., dissenting).

[18] Ross, slip op. at 4 n.5 (Yeary, J., concurring).