Memorandum Opinion by Justice Spears II, 04-25-00092-CR, January 28, 2026.
On appeal from the 187th Judicial District Court, Bexar County.
Synopsis
The Fourth Court of Appeals affirmed a conviction for misdemeanor deadly conduct, holding that a BB gun—often dismissed as a toy—is legally capable of placing individuals in imminent danger of serious bodily injury. The Court determined that expert velocity testing, manufacturer warnings, and circumstantial evidence of property damage provided a sufficient evidentiary basis for a rational jury to find the device capable of causing the requisite harm under the Texas Penal Code.
Relevance to Family Law
For family law practitioners, Morrison is a critical “crossover” case that bridges the gap between criminal sufficiency standards and civil evidentiary burdens in SAPCR and Protective Order litigation. Under Texas Family Code § 71.004, the definition of family violence hinges on acts that place a family member in fear of “imminent physical harm, bodily injury, [or] assault.” Morrison provides high-ground authority to argue that the use or display of air-powered weapons in a domestic setting constitutes family violence and “deadly conduct.” This is particularly impactful when seeking to rebut the presumption of Joint Managing Conservatorship under TFC § 153.131 or when establishing a “history or pattern” of abuse to restrict possession and access under TFC § 153.004.
Case Summary
Fact Summary
The incident occurred at an apartment complex where the defendant, Christopher Morrison, fired a BB gun from his balcony toward a communal swimming pool. At the time, a father and his three-year-old son were swimming in the line of fire. The father testified to hearing “three loud splashes” in the water—one notably close to his head—and the sound of breaking glass. Investigating officers discovered a shattered sliding glass door at a nearby unit, featuring a single hole consistent with a BB projectile. At trial, the State introduced expert testimony regarding the mechanical capabilities of the specific BB gun, which utilized compressed gas to launch projectiles. Although the weapon was only tested in a controlled laboratory environment, the results were compared against established thresholds for human skin penetration and serious bodily injury.
Issues Decided
The primary issue was whether the evidence was legally sufficient to support a finding that the defendant placed the complainants in imminent danger of serious bodily injury. Specifically, the Court addressed whether a BB gun, when tested only in a lab and not at the scene’s specific distances, could be proven as a device capable of causing “serious bodily injury” for the purposes of a deadly conduct conviction.
Rules Applied
The Court applied Texas Penal Code § 22.05(a), which defines misdemeanor deadly conduct as recklessly engaging in conduct that places another in imminent danger of serious bodily injury. Under the Jackson v. Virginia legal-sufficiency standard, the Court viewed the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. The Court also referenced Brooks v. State, confirming that in Texas, the legal-sufficiency standard is the only standard applicable to criminal convictions, effectively superseding factual-sufficiency reviews.
Application
In its analysis, the Court rejected Morrison’s argument that the laboratory testing was insufficient to prove danger at the actual scene. The State’s expert, David Pendleton, utilized a chronograph to measure the BB gun’s velocity, recording speeds between 315.4 and 337.40 feet per second. This significantly exceeded the known threshold for bodily harm (246 to 249 feet per second). The Court reasoned that the jury was entitled to draw reasonable inferences from this data, combined with the BB gun’s own owner’s manual, which explicitly warned of the potential for serious injury or death.
The legal story was further solidified by the physical evidence at the apartment complex. The Court noted that the shattered glass door, located even further from the balcony than the swimming pool, served as a physical “proxy” for the harm the weapon could inflict. Because the BB retained enough kinetic energy to shatter tempered glass at that distance, a rational jury could infer the weapon remained capable of causing serious bodily injury to the father and child in the pool.
Holding
The Fourth Court of Appeals held that the evidence was legally sufficient to support the conviction. The Court concluded that the combination of expert velocity data, manufacturer warnings, and the tangible evidence of property damage allowed for a reasonable inference that the BB gun was a deadly instrument in the context of the defendant’s conduct.
The Court further held that a reviewing court must defer to the jury’s weight and credibility determinations, noting that the jury is the sole judge of the facts. Even if the expert did not fire the weapon at the specific outdoor distance in question, the cumulative force of the evidence supported the conviction.
Practical Application
In the context of family law litigation, Morrison serves as an evidentiary roadmap for proving “endangerment” in high-conflict custody cases:
- Protective Orders: Use this case to argue that a respondent’s use of “non-lethal” weapons (BB guns, pellet guns, high-powered air rifles) meets the “Deadly Conduct” threshold required for a finding that family violence occurred and is likely to occur in the future.
- Supervised Visitation: If a parent has a history of “plinking” or using air-powered rifles in the presence of children, Morrison supports a finding of “serious endangerment” under TFC § 153.191, justifying a denial of unsupervised access.
- Expert Strategy: When dealing with unconventional weapons, practitioners should consider retaining a ballistics expert to perform velocity testing. Proving that a device exceeds the 246 fps threshold for skin penetration can be the “silver bullet” for a family violence finding.
Checklists
Evidence Gathering for “Deadly Conduct” with Non-Traditional Weapons
- Secure the Device: Obtain the specific make and model of the air-powered weapon via discovery or police seizure records.
- Manufacturer Literature: Download the owner’s manual; specifically highlight safety warnings regarding “serious bodily injury or death.”
- Velocity Benchmarks: Establish the projectile’s feet-per-second (fps) capability.
- Physical Proxies: Document any property damage (dents in walls, shattered glass, wounded pets) to demonstrate the weapon’s force at specific distances.
Rebutting the “It’s Just a Toy” Defense
- Distance Analysis: Calculate the distance between the party and the child/spouse during the incident.
- Chronograph Testing: If the weapon is available, have an expert testify to its muzzle velocity compared to the threshold for human injury.
- The “Reckless” Element: Emphasize that the intent to kill is not required for deadly conduct; only the reckless placement of another in the “zone of danger.”
Citation
Morrison v. State, No. 04-25-00092-CR (Tex. App.—San Antonio Jan. 28, 2026, no pet. h.) (mem. op.).
Full Opinion
Full Opinion: Morrison v. State
Family Law Crossover
Morrison v. State can be strategically weaponized in Texas divorce and custody litigation to escalate what might otherwise be viewed as “bad parenting” or “harassment” into a formal finding of family violence. In a temporary orders hearing, a practitioner can use this ruling to argue that a spouse who fires a BB gun in the backyard while children are present has committed an act of “Deadly Conduct.”
Because the Fourth Court of Appeals accepted that property damage (shattered glass) and velocity testing are sufficient to prove imminent danger of serious bodily injury, you no longer need a physical “hit” or a traditional firearm to secure a Protective Order or to trigger the rebuttable presumption against a parent’s appointment as a managing conservator. If the BB gun is capable of shattering a sliding door, it is capable of shattering a parent’s claim to unsupervised access. This case effectively lowers the “deadly weapon” barrier for family law litigators dealing with respondents who use air-powered tools of intimidation.
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