Dallas officer kills man after mistaking apartment for her own, police say

[C-Man 27041]

1 hour ago, LurkingHorn said:

The call did make me feel a little more sympathetic to her, but that doesn't remove her culpability to me. Shooting people has consequences. Even cops need to understand that. This could have easily been avoided had she not approached the situation with a shoot-first mentality. 

 

1 hour ago, Uncle Nate said:

I think this is manslaughter and not murder.  There was no intent.  There was fatigue-induced disorientation and fear. 

She took the man's life, and for that she should stand trial and face the consequences.  But I think the charge should be manslaughter.

Yeah, this is where I'm at. She fucked up. Plain and simple. But I don't think she willfully murdered Jean. It was just a horrible mistake on her part, and probably part of the cowboy police mentality that is so pervasive these days. It would've been much easier to back away and perhaps de-escalate the situation but she went in "shooting first and asking questions later" because that's the police way. She's going to prison because of it.

[Brisketexan 104557]

1 hour ago, 4th and 5 said:

Hey man we plowed this ground months ago, go look at the culpable mental states in chapter 6 of the Texas Penal Code. And then read chapter 19. It’s a murder case. 

Listen to 4th and 5, guys.  It ain't about your feelings, it's about the law.  It's a murder case.

[Uncle Nate 2097]

8 minutes ago, Brisketexan said:

Listen to 4th and 5, guys.  It ain't about your feelings, it's about the law.  

That's not what Lt. Kaffee's dad said. 

['stache 21761]

I'm still not buying her story, but even if it's true she needs to spend considerable time in jail, I don't care what they name the charge. It's reckless as fuck to be blasting people with your service pistol even if you think it's your own apartment. People go to jail for accidentally killing pedestrians with their car. This is ten times worse. I mean how fucking hard is it to not enter someone else's place by accident? 

[Uncle Nate 2097]

1 minute ago, BurntEyes said:

This, it's not about what one thinks or feels.

It's about the law.

Again, per my example above were this random Joe guy walking into random Brian's house nobody at all would be defending the shooter.

The clear sexist bias is rearing it's ugly head with a good dollop of cops are heros and live by a different set of laws.

But don't DA's make decisions all the time on which charge to bring based on how they think it will go in front of a jury?

Remember, the defense attorney is most definitely going after the feelings of the jury members.  That's his/her only strategy.  So if you are the DA, and you want to get a conviction, don't you weigh the decision on murder vs. manslaughter based somewhat on how you think this will play out in front of a jury??

If the intent is to get a conviction, and we all seem to agree the girl needs to go to prison, don't you want to make sure you are playing your best hand?

[TwiceHorn 31263]

1 hour ago, Uncle Nate said:

What I mean is she didn't walk into that apartment expecting to find anyone, much less shoot them. She honestly thought she was in her apartment and there was an intruder. She was dazed and confused.  That's why I think the charge should be manslaughter and not murder.

Let's be clear that I still think she was wrong and she should face justice.  I'm not saying she gets a pass...not at all.  But I think the charge should be appropriate for what took place.  In the end, whether it is murder or manslaughter, her life is forever fucked anyway.  Prison is prison, and an ex-cop in prison for killing an innocent black man is going to get the same treatment regardless of which charge she is convicted of.

And just so we are on the same page and you understand what I'm talking about:

Now read those two definitions and tell me which one her crime falls under?  I say the second.

Problem is, those are "common law" definitions, not Texas law.  https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm

[Uncle Nate 2097]

3 minutes ago, TwiceHorn said:

Problem is, those are "common law" definitions, not Texas law.  https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm

Gotcha.

But still, if I'm the DA and I want to make sure she doesn't squirm free, I'm going with the charge I think the jury would accept no matter what type of emotional heartstrings the defense pulls.  The DA can't afford to fuck this up.  

Edited April 30, 2019 by Uncle Nate

[Uncle Nate 2097]

Just now, BurntEyes said:

Are you the DA on this case? 

All I'm saying is the DA knows the defense's playbook on this one.  I think the DA would have ZERO problem getting a manslaughter conviction.  It's the safer bet.

[Brisketexan 104557]

Just now, Uncle Nate said:

Gotcha.

But still, if I'm the DA and I want to make sure she doesn't squirm free, I'm going with the charge I think the jury would accept no matter what type of emotional heartstrings the defense pulls.  

They'll charge it as a lesser included offense (I expect -- 4th and 5 can probably explain much better than I can).

[TwiceHorn 31263]

2 minutes ago, Uncle Nate said:

Gotcha.

But still, if I'm the DA and I want to make sure she doesn't squirm free, I'm going with the charge I think the jury would accept no matter what type of emotional heartstrings the defense pulls.  The DA can't afford to fuck this up.  

There's a complicated issue about charging lesser offenses.  The prosecution can always try to add a lesser included offense (manslaughter, criminally negligent homicide) to the jury charge before deliberations, but it's not automatic and is subject to tactical considerations.  I'm not even sure those are lesser included offenses.

The only real difference, ultimately is the sentencing range.

[High Plains Drifter 10970]

2 hours ago, LurkingHorn said:

The call did make me feel a little more sympathetic to her, but that doesn't remove her culpability to me. Shooting people has consequences. Even cops need to understand that. This could have easily been avoided had she not approached the situation with a shoot-first mentality. 

 

38 minutes ago, C-Man said:

 

Yeah, this is where I'm at. She fucked up. Plain and simple. But I don't think she willfully murdered Jean. It was just a horrible mistake on her part, and probably part of the cowboy police mentality that is so pervasive these days. It would've been much easier to back away and perhaps de-escalate the situation but she went in "shooting first and asking questions later" because that's the police way. She's going to prison because of it.

 

I'm sure the law dogs will correct me if I'm wrong in the legal sense, but this mentality (which I think we can all agree seems to be very persuasive amongst cops) seems to me to somehow make it more like murder than manslaughter.

 

 

[TwiceHorn 31263]

4 minutes ago, High Plains Drifter said:

 

 

I'm sure the law dogs will correct me if I'm wrong in the legal sense, but this mentality (which I think we can all agree seems to be very persuasive amongst cops) seems to me to somehow make it more like murder than manslaughter.

 

 

Not really correcting, but the standard for murder in Texas is "intentionally or knowingly" causing the death of someone.  And that means intentionally or knowingly engaging in the conduct that causes death, not intending death.  Manslaughter is recklessly engaging in the conduct, while criminally negligent homicide is negligently engaging in the conduct.  She intended to shoot him, it wasn't reckless or negligent.  She may have been negligent or reckless about knowing where she was, but that doesn't affect the essential fact that she intended to do what she did and it caused his death.  Similarly, the shoot first aspect of it doesn't really affect it either way. 

Her mistake as to her whereabouts may give rise to a self defense claim, in which her actions might be judged under a reasonableness standard, which might call into question the whole shoot first attitude.

[Chewbacca 7729]

40 minutes ago, 'stache said:

I'm still not buying her story, but even if it's true she needs to spend considerable time in jail, I don't care what they name the charge. It's reckless as fuck to be blasting people with your service pistol even if you think it's your own apartment. People go to jail for accidentally killing pedestrians with their car. This is ten times worse. I mean how fucking hard is it to not enter someone else's place by accident? 

I know we'll likely have to wait until trial, but I still want to know how she got in there.  How many times did she try her key card and it didn't work?  

[TornACL 7675]

Doesn't matter the charge, she'll get acquitted. 

 

Not saying I agree with that, just saying that's what will happen. 

Edited April 30, 2019 by TornACL

[TwiceHorn 31263]

6 minutes ago, TornACL said:

Doesn't matter the charge, she'll get acquitted. 

 

Not saying I agree with that, just saying that's what will happen. 

I'm not so sure.  I don't think Creuzot's office is going to sandbag the prosecution and Dallas juries have been willing to stick it to the popo. https://www.nbcdfw.com/news/local/Sentencing-Underway-for-Ex-Balch-Springs-Officer-Convicted-of-Murder-491972191.html

Jury selection will be key, as usual.

Edited April 30, 2019 by TwiceHorn

[Gene Parmesan 3993]

20 minutes ago, Chewbacca said:

I know we'll likely have to wait until trial, but I still want to know how she got in there.  How many times did she try her key card and it didn't work?  

I believe her story is the door was ajar.  I don't necessarily find anything about her story unbelievable.  I don't know why someone wouldn't buy her story?  I don't think any evidence has come out that has refuted any of her claims including the 911 call, but that being said she still killed a guy so she should go to jail.

[Vic Mackey 46932]

1 minute ago, Gene Parmesan said:

I believe her story is the door was ajar.  I don't necessarily find anything about her story unbelievable.  I don't know why someone wouldn't buy her story?  I don't think any evidence has come out that has refuted any of her claims including the 911 call, but that being said she still killed a guy so she should go to jail.

I have never been in that particular apartment but all those newer age apartments seem to be the same. Where you can't leave the door ajar. It will automatically close all the way behind you. Hotel doors are the same way. Did he leave something near the door to keep it ajar and why would he want to do that? This may have been discussed when this took place but it's been awhile now and I can't remember all the details. Did she say it was ajar or unlocked?

[Hank Scorpio 17721]

1 hour ago, Uncle Nate said:

Gotcha.

But still, if I'm the DA and I want to make sure she doesn't squirm free, I'm going with the charge I think the jury would accept no matter what type of emotional heartstrings the defense pulls.  The DA can't afford to fuck this up.  

 

Will you shut the fuck up and let the adults talk. Coming in here with common law fucking 1L bullshit. Hey, what would happen if the model penal code were the law? Let's bicker about that. 

Edited April 30, 2019 by Hank Scorpio

[Uncle Nate 2097]

2 minutes ago, Hank Scorpio said:

 

Will you shut the fuck up and let the adults talk. Coming in here with common law fucking 1L bullshit. Hey, what would happen if the model penal code were the law? Let's bicker about that. 

It's a fucking message board...you know...where people have discussions.  DA's bring lower charges hoping for a better chance at conviction all the fucking time.  It's not out of the question that, based on the circumstances here, this DA might consider doing the same to ensure a conviction.

Get over yourself.  This isn't the message board for the fucking Harvard Law Review.

[Gene Parmesan 3993]

3 minutes ago, Vic Mackey said:

I have never been in that particular apartment but all those newer age apartments seem to be the same. Where you can't leave the door ajar. It will automatically close all the way behind you. Hotel doors are the same way. Did he leave something near the door to keep it ajar and why would he want to do that? This may have been discussed when this took place but it's been awhile now and I can't remember all the details. Did she say it was ajar or unlocked?

I'm pretty sure she claims ajar, but I'm not 100%.  I don't think it's impossible to leave a hotel style door ajar, I've done it on plenty of hotel doors without a prop.  I'm doing it on purpose though, it's certainly tougher to accidently do it.  Why he did it if he did, I don't know.  I would think if there were key log evidence that refuted her story it would be out by now.

[TwiceHorn 31263]

4 minutes ago, Gene Parmesan said:

I'm pretty sure she claims ajar, but I'm not 100%.  I don't think it's impossible to leave a hotel style door ajar, I've done it on plenty of hotel doors without a prop.  I'm doing it on purpose though, it's certainly tougher to accidently do it.  Why he did it if he did, I don't know.  I would think if there were key log evidence that refuted her story it would be out by now.

There was a video someone posted that, showed, among other things, that doors at that complex could shut (spring loaded), but not latch.  Also, I believe, that they might close but would not necessarily be locked; that is, you could turn the knob and gain entry if the "nightlatch" was not set.

Edited April 30, 2019 by TwiceHorn

[Hank Scorpio 17721]

16 minutes ago, Uncle Nate said:

It's a fucking message board...you know...where people have discussions.  DA's bring lower charges hoping for a better chance at conviction all the fucking time.  It's not out of the question that, based on the circumstances here, this DA might consider doing the same to ensure a conviction.

Get over yourself.  This isn't the message board for the fucking Harvard Law Review.

Shit man, I'm sorry. You're right. What if the DA decides to lower the charges based on the common law, which has no application whatsoever in this case? That could totally happen. The Dallas county DA gets a head injury, reads your post, and forgets that the Texas Penal Code exists. Let's have a conversation about that. After all, it is a message board. 

[Uncle Nate 2097]

Just now, Hank Scorpio said:

Shit man, I'm sorry. You're right. What if the DA decides to lower the charges based on the common law, which has no application whatsoever in this case? That could totally happen. The Dallas county DA gets a head injury, reads your post, and forgets that the Texas Penal Code exists. Let's have a conversation about that. After all, it is a message board. 

I apologize for upsetting your delicate sensitivities.  I didn't realize my questions/comments were so damn egregious to the Texas legal community.  Again, I was under the apparent mistaken impression that this was a place to discuss shit.  

[Vic Mackey 46932]

Dallas PD is launching an Internal Affairs investigation on the release of the 911 tape. They had not yet authorized the release of the call. Oops. 

[TwiceHorn 31263]

I suspect that the release may have come from the DAs office.  I have tons of respect for John Creuzot, but he may be being overzealous.  If he's not careful he's going to piss off too many of the wrong people and get himself unelected.

Edited April 30, 2019 by TwiceHorn

[hayden_horn 11360]

4 minutes ago, Vic Mackey said:

Dallas PD is launching an Internal Affairs investigation on the release of the 911 tape. They had not yet authorized the release of the call. Oops. 

of course they don't want that released.  i mean, it would have been out the next day if it painted anyone in a favorable light.

right?

right?

[PilotsError 2281]

...

[SuingToGetAMessageBoard? 3861]

7 minutes ago, PilotsError said:

...

cringe.

[4th and 5 4914]

4 hours ago, Vic Mackey said:

4 hours ago, 4th and 5 said:

Hey man we plowed this ground months ago, go look at the culpable mental states in chapter 6 of the Texas Penal Code. And then read chapter 19. It’s a murder case. 

Absolutely. Anyone trying to justify what she did is delusional. And this 911 call made it even worse for me.

She may well be justified by the justifications in Chapter 9 of the Texas Penal Code, specifically self defense and defense of property. We'll see.

3 hours ago, Uncle Nate said:

But don't DA's make decisions all the time on which charge to bring based on how they think it will go in front of a jury?

Remember, the defense attorney is most definitely going after the feelings of the jury members.  That's his/her only strategy.  So if you are the DA, and you want to get a conviction, don't you weigh the decision on murder vs. manslaughter based somewhat on how you think this will play out in front of a jury??

If the intent is to get a conviction, and we all seem to agree the girl needs to go to prison, don't you want to make sure you are playing your best hand?

It's not a manslaughter case! Read the Penal Code. Start with Chapter 6!

2 hours ago, Brisketexan said:

They'll charge it as a lesser included offense (I expect -- 4th and 5 can probably explain much better than I can).

Not if there is no evidence of the lesser culpable mental state of recklessness or criminal negligence. She'd have to testify that she did not intend to pull the trigger. Twice. Good luck with that.

2 hours ago, TwiceHorn said:

There's a complicated issue about charging lesser offenses.  The prosecution can always try to add a lesser included offense (manslaughter, criminally negligent homicide) to the jury charge before deliberations, but it's not automatic and is subject to tactical considerations.  I'm not even sure those are lesser included offenses.

The only real difference, ultimately is the sentencing range.

I said that long ago when we started this thread. This is a murder case with justifications under TPC Ch 9. The STATE has to DISPROVE the applicability of the defenses BEYOND A REASONABLE DOUBT. If the state doesn't she walks free. If it does, she is looking at 5-99 and this is just a punishment issue

2 hours ago, TwiceHorn said:

Not really correcting, but the standard for murder in Texas is "intentionally or knowingly" causing the death of someone.  And that means intentionally or knowingly engaging in the conduct that causes death, not intending death.  Manslaughter is recklessly engaging in the conduct, while criminally negligent homicide is negligently engaging in the conduct.  She intended to shoot him, it wasn't reckless or negligent.  She may have been negligent or reckless about knowing where she was, but that doesn't affect the essential fact that she intended to do what she did and it caused his death.  Similarly, the shoot first aspect of it doesn't really affect it either way. 

Her mistake as to her whereabouts may give rise to a self defense claim, in which her actions might be judged under a reasonableness standard, which might call into question the whole shoot first attitude.

Thank you sweet baby Jesus for typing this out so I don't have to

2 hours ago, TornACL said:

Doesn't matter the charge, she'll get acquitted. 

 

Not saying I agree with that, just saying that's what will happen. 

I think the odds of acquittal are substantial.

[TwiceHorn 31263]

15 minutes ago, 4th and 5 said:

I think the odds of acquittal are substantial.

Think that's based on sort of a nullification rationale, that is, the jury ignores the instructions and does what it thinks is right?  Or do you think the defense can tick the boxes pretty convincingly?

[Chewbacca 7729]

2 hours ago, Gene Parmesan said:

I believe her story is the door was ajar.  I don't necessarily find anything about her story unbelievable.  I don't know why someone wouldn't buy her story?  I don't think any evidence has come out that has refuted any of her claims including the 911 call, but that being said she still killed a guy so she should go to jail.

Right.  I'm saying I don't believe her story.  Doors in most apartment communities (including this one) close and lock automatically.  There's really no way for the door to be ajar unless it is propped open.  But is the door lock log going to contradict her story?

[immortal13 4059]

#protectandserve

[Reagan1k 3016]

If she happens to skate on this I bet one things for damn sure-  no friend is going to throw her a surprise party to celebrate. 

[Gene Parmesan 3993]

6 minutes ago, Chewbacca said:

Right.  I'm saying I don't believe her story.  Doors in most apartment communities (including this one) close and lock automatically.  There's really no way for the door to be ajar unless it is propped open.  But is the door lock log going to contradict her story?

I think it's been posted that these doors don't automatically lock and it's possible that the closing mechanism may not necessarily latch the door.  Do you not believe her story because you are under the impression that the door would have to either be propped open or it's closed/locked? 

If it's true that doors in this complex close and lock automatically, and would need to be propped open in order to get ajar then I would also not believe her story.  My apartment days were with old fashioned lock and key so I don't know how new complexes work.

[Chewbacca 7729]

1 minute ago, Gene Parmesan said:

I think it's been posted that these doors don't automatically lock and it's possible that the closing mechanism may not necessarily latch the door.  Do you not believe her story because you are under the impression that the door would have to either be propped open or it's closed/locked? 

If it's true that doors in this complex close and lock automatically, and would need to be propped open in order to get ajar then I would also not believe her story.  My apartment days were with old fashioned lock and key so I don't know how new complexes work.

I'm pretty familiar with these systems.  And they definitely close and lock automatically.  They also log who comes and goes.  

[4th and 5 4914]

3 minutes ago, TwiceHorn said:

Think that's based on sort of a nullification rationale, that is, the jury ignores the instructions and does what it thinks is right?  Or do you think the defense can tick the boxes pretty convincingly?

No, I think her conduct might be justified by self defense and defense of property. The key point is the reasonableness of her belief. You have the right to defend yourself from dangers real and apparent. The key evidence will be to show one way or the other whether her belief that deadly force was reasonable to protect herself or (what she believed to be) her property. 

 

Here's the law, gotta go, will post about it later

SUBCHAPTER C. PROTECTION OF PERSONS

 

Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

 

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

 

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

 

SUBCHAPTER D. PROTECTION OF PROPERTY

Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

 

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

 

[Gene Parmesan 3993]

13 minutes ago, Chewbacca said:

I'm pretty familiar with these systems.  And they definitely close and lock automatically.  They also log who comes and goes.  

Then I am interested if that's the case.  I guess that stuff will come out in trial.  I would think any evidence that could refute her story would already be out there to make her look bad.

['stache 21761]

"(2) did not provoke the person against whom the force was used"

I'm pretty sure entering some else's apartment is provocation. I also don't remember any part of the story being that he put her in danger. I thought she started shooting in the dark before seeing him or even the room, which is why she didn't realize right away that it wasn't her apartment. 

[hayden_horn 11360]

having listened to the tape now...i kind of may come around to believing her. either that, or she's a psycho who fashioned her story and is a good hysterical actor.

[Chewbacca 7729]

2 minutes ago, Gene Parmesan said:

Then I am interested if that's the case.  I guess that stuff will come out in trial.  I would think any evidence that could refute her story would already be out there to make her look bad.

They've kept a tight lid on all that stuff, like her toxicology report, because they seem to be protecting her.  Just like she was not brought in until she could scrub her social media (although not well enough, apparently).  We found out the victim had been smoking weed just a few days after she killed him.  We still haven't seen her results.  

['stache 21761]

Think that's based on sort of a nullification rationale, that is, the jury ignores the instructions and does what it thinks is right?  Or do you think the defense can tick the boxes pretty convincingly?

Remember that he had pot in his apartment. He was clearly a drugged up psycopath dangerous to her and others. Also:

[NotActuallyALonghorn 4968]

9 minutes ago, Chewbacca said:

They've kept a tight lid on all that stuff, like her toxicology report, because they seem to be protecting her.  Just like she was not brought in until she could scrub her social media (although not well enough, apparently).  We found out the victim had been smoking weed just a few days after she killed him.  We still haven't seen her results.  

What does smoking weed in the afterlife have to do with this?

[Wally Pryor 5243]

13 minutes ago, hayden_horn said:

having listened to the tape now...i kind of may come around to believing her. either that, or she's a psycho who fashioned her story and is a good hysterical actor.

Yeah, just heard it on Ward's show.    She could go either way me thinks. 

[TwiceHorn 31263]

48 minutes ago, 4th and 5 said:

No, I think her conduct might be justified by self defense and defense of property. The key point is the reasonableness of her belief. You have the right to defend yourself from dangers real and apparent. The key evidence will be to show one way or the other whether her belief that deadly force was reasonable to protect herself or (what she believed to be) her property. 

 

Here's the law, gotta go, will post about it later

SUBCHAPTER C. PROTECTION OF PERSONS

 

Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

 

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

 

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

 

SUBCHAPTER D. PROTECTION OF PROPERTY

Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

 

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

 

Haha, I may have asked you that before, didn't mean to make you repeat all the self-defense law.  Seems to me, the first hurdle for her is the mistake of fact to trigger the self defense.

Also seems to me, going strictly by the law, it might be hard to "tick the boxes" for an acquittal.  But who knows whether a jury is ticking those boxes or just dead reckoning with (or without) a legal basis.  A lot of times, that dead reckoning gets a pretty good result.  It gets weird, though, when a jury doesn't get to decide punishment.

Edited April 30, 2019 by TwiceHorn

[RPM 26215]

1 hour ago, 'stache said:

I also don't remember any part of the story being that he put her in danger.

Umm, excuse me. The man was clearly black.

[SquishMitten 10398]

8 hours ago, Uncle Nate said:

:

Now read those two definitions and tell me which one her crime falls under?  I say the second.

Sounds like second-degree murder if you wanted to use those definitions for some odd reason. “Malice aforethought” does not take long .

Edited April 30, 2019 by SquishMitten

[SquishMitten 10398]

And all this self-defense shit.. got damn that would be a scary precedent that someone can walk into your house and meet all the elements to walk after they killed the home owner.

[4th and 5 4914]

3 hours ago, 'stache said:

"(2) did not provoke the person against whom the force was used"

I'm pretty sure entering some else's apartment is provocation. I also don't remember any part of the story being that he put her in danger. I thought she started shooting in the dark before seeing him or even the room, which is why she didn't realize right away that it wasn't her apartment. 

That does not qualify as legal provocation under Texas caselaw.

In self defense cases you are trying to get the  presumption of reasonableness and the instruction of no duty to retreat in the jury charge.  These make it very difficult for the state to disprove beyond a reasonable doubt the justification of self-defense. 

 Her problem may be in the “not engaging in criminal activity other than a class C misdemeanor” element because if she entered (her whole body, not just some part, like her arm)  the apartment, (and the search warrant return for his apartment indicates shell casings were recovered seems to prove her presence inside the apartment) then her entry into the apartment was a  class A misdemeanor criminal trespass. And she will get neither the castle doctrine presumption nor the no duty to retreat instruction  

 

Edited April 30, 2019 by 4th and 5

[4th and 5 4914]

I’ll have to look at this closer but I don’t think she can use defense of property. The law requires her to be in lawful possession of, or unlawfully dispossessed of land or property. She was neither. A reasonable belief that the apartment was hers is irrelevant. It has to actually be her apartment. And if she could not use force under 9.41 she cannot use deadly force under 9.42. 

Edited April 30, 2019 by 4th and 5

[4th and 5 4914]

Also I posted this way back when this happened, but she may be able to use the defense of Mistake of Fact. I haven’t looked at Texas caselaw to see if it possible. Usually the specific controls the general, and the use of a Mistake of Fact defense may not be possible. For instance there is a fairly recent case from the CCA that says the D could not get a jury charge based on the defense of Necessity, because the defensive conduct he engaged in, while it may have been a necessity, was provided for specifically by the defense of Self Defense 

Edited April 30, 2019 by 4th and 5