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

[TwiceHorn 31,269]

Question for 4th and 5.  What would the jury charge look like if she gets the mistake of fact and self-defense questions?  A big recital of the law/Penal Code in the instructions and three questions (murder, mistake of fact, self defense)?

[TwiceHorn 31,269]

Also, would there be a pretrial hearing on the self-defense issues?  Or would that all happen at trial?

[High Plains Drifter 10,974]

13 hours ago, TwiceHorn said:

That part is not, but the mistakes apparently leading to the intentional act of shooting render the episode an accident.

I respect you as a poster of intellect and character, but we are going to just have to disagree on this one.

[TwiceHorn 31,269]

11 minutes ago, High Plains Drifter said:

I respect you as a poster of intellect and character, but we are going to just have to disagree on this one.

Fine.  Appreciate the respect.  Pethaps it is the term "accident." Mistake?  Regardless, while there is an unmistakable intentional act in the shooting, the overall result was not intended.

Much in the same way that a drunk or texting driver who causes a car wreck does not intend to cause a car wreck.  He did some culpable, and intentional acts that made that more likely, but did not intend to cause a car wreck (note that I have avoided the term accident).

[4th and 5 4,914]

On 5/4/2019 at 9:45 AM, BurntEyes said:

Under no legal conditions are you allowed to shoot a stranger in their own home after obtaining access against that person's wishes or illegally. (No-knock warrants aside) Whether you think you have that legal authority or not.

The fact that she believed she had that authority, calls into question a lot more about her than it does create a defense of her. I've already clearly pointed out why.

The preshooting witness description of what occurred further call it into question. Those are of course always suspect but there they are.

The way in which she gain entrance to the location is suspect, if she did in fact gain entrance to the apartment. Which based on what I've read neither is clear.

I still want YOU to answer the question of why you picked this specific example to start your non-stop defense.

 

That’s may be substantially true but not necessarily always true.

How about this hypothetical.  I am your neighbor walking past your house. I see you in your garage beating the crap out of your wife. I come to her defense. Entry without consent, use of force justified. 

 

On 5/4/2019 at 10:28 AM, TwiceHorn said:

Dude.  I'm not defending her.  I have not once said she SHOULD be acquitted.  I have said she might be, though.  I remain unsure what sort of sentence is appropriate if she is convicted.

Saying that the incident is an accident because (subject to proof of course) she did not intentionally walk into an innocent man's home and kill him, is not a defense.  It is a neutral evaluation of what happened.

For the 40th time, I'm trying to distill a sort of general case for this crime, which is hard to do because it's so unusual.  Unless and until it is proven that she did intentionally enter a mans home and shoot him to death, this isn't a "straight-up murder."  It is certainly murder by the statute.

The central fact is that she made a rotten, no-good, horrible decision to shoot the guy.  But in certain circumstances under our law, that is absolutely permitted.  And she may be able to claim the benefit of that law.  I freely admit that from a technical perspective, the defense and tactics here are fascinating, but don't equate that fascination with desire that she be acquitted.

This case lies in a twilight zone between straight-up murder and straight-up self-defense.  In a zone between 5-99 and  0/acquittal.  To treat it as one or the other on that spectrum is foolhardy, but that's just like my opinion, man.  I'm trying to figure out, for sentencing purposes mostly, where on the spectrum the general crime here lies.  I'm not satisfied with either of the poles.

I'm not speculating wildly on what facts may later be proven that tilt the thing to one end of the spectrum or the other.  You have your biases, they are obvious, and I don't disagree with them.  I certainly condemn wild shooting, and would do so if she had done this in her own home had the roles been reversed.  I'm very much against shoot-first cops. Hell, I'm on record for disarming them entirely.  But I'm not indulging the biases for purposes of trying to look at this neutrally.  You are so biased that you see my trying-to-be-neutral analysis as a defense.

 

 

Well said. I’m not defending her. She fucked up. My posts are designed to inform how her lawyers will defend her. And to demonstrate maybe we should rely on facts to form ultimate opinions. 

On 5/4/2019 at 11:07 AM, TwiceHorn said:

Question for 4th and 5.  What would the jury charge look like if she gets the mistake of fact and self-defense questions?  A big recital of the law/Penal Code in the instructions and three questions (murder, mistake of fact, self defense)?

Yes. The typical jury instructions, culpable mental states, homicide, self defense, the presumption and instruction if she gets them, definitions of reasonable beleif, deadly force, etc., and mistake of fact if she gets the defense which I am not sure she will, I have to research if the mistake of fact as to her apartment would get her the charge. 

On 5/4/2019 at 11:31 AM, TwiceHorn said:

Also, would there be a pretrial hearing on the self-defense issues?  Or would that all happen at trial?

At trial. It is a jury issue. 

[4th and 5 4,914]

Here is the statute on mistake of fact in Ch 8 of the Penal code

Sec. 8.02. MISTAKE OF FACT. (a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

(b) Although an actor's mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.

 

The highlighted part may give her trouble. An example of how the defense works would be in a theft case for an umbrella on a rainy day. I grabbed the umbrella thinking it was mine when it was not, it just looked like mine. Due to a mistake of fact as to the beleif of the ownership of the umbrella, it negates the kind of culpability required for the commission of the offense, specifically, the intent to permanently deprive the owner of the property. 

It this case we have a mistake of fact as to the rightful possession of the apartment.  Does that negate the culpability required for the offense? I question wether it does.

[FondrenRoad 4,378]

2 hours ago, 4th and 5 said:

Here is the statute on mistake of fact in Ch 8 of the Penal code

Sec. 8.02. MISTAKE OF FACT. (a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

(b) Although an actor's mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.

 

The highlighted part may give her trouble. An example of how the defense works would be in a theft case for an umbrella on a rainy day. I grabbed the umbrella thinking it was mine when it was not, it just looked like mine. Due to a mistake of fact as to the beleif of the ownership of the umbrella, it negates the kind of culpability required for the commission of the offense, specifically, the intent to permanently deprive the owner of the property. 

It this case we have a mistake of fact as to the rightful possession of the apartment.  Does that negate the culpability required for the offense? I question wether it does.

I don't think the umbrella story is entirely comparable. It's a single offense with no subsequent offenses that arose from the mistake of fact.

A more apt comparison would be if you took the umbrella thinking it was yours, the umbrella's true owner ran after you saying it was his, and when he gets to you, you punch him in the face still thinking the umbrella is yours. While the mistake of fact would negate theft, it likely wouldn't give you a free pass to commit assault. 

[4th and 5 4,914]

I’m not making a comparison.

My post indicates that’s how the mistake of fact defense usually works.

And how it may not work that way in this case

 

 

[TwiceHorn 31,269]

It's strange.  Self-defense is often called a "justification," but particularly when the defendant is mistaken about the threat posed by the victim, it operates to mitigate the state of mind.

All of this is really an interesting mental exercise in states of mind and intentionality.

Also note that the statute just says "culpability," rather than "culpable mental state."  The two are used semi-interchangeably in the Penal Code (see 6.02), but an argument could be made, I think, that "kind of culpability," means something different than "culpable mental state."

Edited May 6, 2019 by TwiceHorn

[Brisketexan 104,597]

5 minutes ago, BurntEyes said:

Perhaps your neighbors are some freaky BDSM exibitionist. You approach hell, you might be asked if you want to join, slave.

 

[Pato del Muerto 52,342]

On 5/4/2019 at 11:55 AM, TwiceHorn said:

Fine.  Appreciate the respect.  Pethaps it is the term "accident." Mistake?  Regardless, while there is an unmistakable intentional act in the shooting, the overall result was not intended.

Much in the same way that a drunk or texting driver who causes a car wreck does not intend to cause a car wreck.  He did some culpable, and intentional acts that made that more likely, but did not intend to cause a car wreck (note that I have avoided the term accident).

What was her intended overall result?

best I can figure, it was to kill the person in her apartment. 

The actual result was she killed the person in his apartment. 

Killing the person is a commonality. 

My analogy would be if she is driving and another car is heading straight for her, and instead of swerving she says “it’s my lane, if they don’t want to wreck they should swerve.”  Then in the aftermath of the wreck she realizes that in fact she was the one on the wrong side of the road. 

[TornACL 7,675]

3 hours ago, TwiceHorn said:

It's strange.  Self-defense is often called a "justification," but particularly when the defendant is mistaken about the threat posed by the victim, it operates to mitigate the state of mind.

All of this is really an interesting mental exercise in states of mind and intentionality.

Also note that the statute just says "culpability," rather than "culpable mental state."  The two are used semi-interchangeably in the Penal Code (see 6.02), but an argument could be made, I think, that "kind of culpability," means something different than "culpable mental state."

Why did you put quotes around the word justification to describe self defense, and then suggest that it's "particularly" when the shooter mistook the threat of the victim. This is a bizarre interpretation. Self defense is a justification when the shooter was deemed justified to make the shoot. 

I think you're trying so hard to have thought exercises that you're wrapping yourself up into a knot again. Yes, there have been issues with issues of self defense related to the the ridiculous (imo) stand your ground stuff, but that's a whole other subject, and part of the reason why the stand your ground laws make some people uneasy.  

FInally, what would culpable mental state even mean?  That's a completely nonsensical term and is talking in circles. 

[4th and 5 4,914]

4 hours ago, BurntEyes said:

First, in your example he won't have accessed the owns property illegally and against their wishes if in fact what you described is what was actually occurring.

Next, leathal force is not justified in that instance in any case I can contemplate.

If you ran up and shot him while he was "beating" on his wife you're probably facing a charge. Probably a civil suit from the wife who is going to be the prosecutors lead witness. Because, "He wasn't hurting me. He loves me and was just upset."

Having said that, if you approach you better assess the situation prior to acting.

Perhaps your neighbors are some freaky BDSM exibitionist. You approach hell, you might be asked if you want to join, slave.

Next, you start using lethal force via firearm when 2 people are in a fisticuffs unless you are well trained and a very excellent shot your probably going to also hit the victim.

If you ARE very well trained you know you don't have legal authority to take that shot, and shouldn't given the circumstances even it you did.

All of this, of course, doesn't apply to police because they get to shoot whoever when ever.

 

In my example the shooter has no consent from either party.

Let's say he is beating the fuck out of her. How about the ever living shit out of her? Is that good enough? Let's say he is kicking her in the head with steel toe boots. Stepping on her neck. Are we there yet? Can you contemplate deadly force yet?

The rest of that gibberish I'll just ignore.

 

[4th and 5 4,914]

6 hours ago, TwiceHorn said:

It's strange.  Self-defense is often called a "justification," but particularly when the defendant is mistaken about the threat posed by the victim, it operates to mitigate the state of mind.

All of this is really an interesting mental exercise in states of mind and intentionality.

Also note that the statute just says "culpability," rather than "culpable mental state."  The two are used semi-interchangeably in the Penal Code (see 6.02), but an argument could be made, I think, that "kind of culpability," means something different than "culpable mental state."

I think the mistake of fact is encompassed in the "reasonable belief" requirement. A person has the right to use self defense from dangers real and apparent, based on the the Penal Code definition. The belief does not have to be correct, just reasonable, based on facts known at the time, not after Burnt Eyes shits all over it with his Monday morning tacticool quarterbacking. 

 

"Reasonable belief" means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.

[TwiceHorn 31,269]

2 hours ago, TornACL said:

Why did you put quotes around the word justification to describe self defense, and then suggest that it's "particularly" when the shooter mistook the threat of the victim. This is a bizarre interpretation. Self defense is a justification when the shooter was deemed justified to make the shoot. 

I think you're trying so hard to have thought exercises that you're wrapping yourself up into a knot again. Yes, there have been issues with issues of self defense related to the the ridiculous (imo) stand your ground stuff, but that's a whole other subject, and part of the reason why the stand your ground laws make some people uneasy.  

FInally, what would culpable mental state even mean?  That's a completely nonsensical term and is talking in circles. 

Because it's a legal term of art?  Is the justification solely because of the shooter's location?  No, but it's broader at home..  It's because of the shooter's state of mind, his reasonable belief and circumstances in which he believes he or their property were seriously threatened, which excuses an otherwise intentional act of murder.

And really on culpable mental state?  Mens rea?  The thing that makes crimes criminal, or used to, long ago?

Better have a talk with the drafters of the Texas Penal Code.  See Section 6.02.

Edited May 7, 2019 by TwiceHorn

[Macanudo 12,926]

I have what might be a very stupid question:

If she was coming home from wherever and went to the wrong apartment, either her key wouldn't work in the door and she would be stuck standing outside OR the front door was unlocked and she just walked in.   So either, we aren't hearing the whole story about how she entered the apartment or she was stupid enough to leave her place unlocked when she went out (work, running errands, etc.)  

Did we already cover that?

 

 

[Guest Lobo]

Yes, we covered it right around the time her apologists that it's very common practice for men of color in the South to frequently leave drugs strewn about their apartment with the door ajar at all hours of the night when they know their neighbors to be white and in law enforcement.  It's SOP for African Americans.  Meanwhile, in real life---the most stoned/high/whatever black person I know still has a high functioning sense of the law, is paranoid as shit, and wouldn't dream of leaving so much as the microwave door open, let alone the door to his home wide open whilst drugs were out in his place.  That would never happen, ever.  

There's a reason everybody has weighed in on both sides even though the two most glaring pieces of information are suspiciously absent...her toxicology report and whether or not his door was really open when she rolled by that night.  

[4th and 5 4,914]

2 hours ago, BurntEyes said:

First I noted entering the residents illegally or against the owners will which you have changed to with out consent.

Pretty big difference.

Since you've now described what I wrote as jibberish, I'm done engaging with you as you have no interest in discussion and are really just trolling.

Illegally is without their consent you dipshit. See the criminal trespass statute. Or burglary statute. Then go away. 

[hopkinsnhorns 533]

On 5/1/2019 at 7:18 PM, Your Mom said:

 There with this guy I was in the Marine Corps with who would get so fucked up he’d get up in the middle of the night and piss into his wall locker.  It’s like a freestanding wardrobe where you hang all your clothes.  He thought it was the bathroom and he would just stand there and piss all over his clothes and shoes. This happened several times. Drunk people do stupid shit.  It’s not inconceivable to me at all that somebody stupid and drunk could barge into the wrong apartment thinking that it’s theirs. 

My buddy did that in our Air BnB at my bachelor party in NOLA.  He was former Coast Guard though, not a jarhead.

[woohorn 1,131]

If she was coming home from wherever and went to the wrong apartment, either her key wouldn't work in the door and she would be stuck standing outside OR the front door was unlocked and she just walked in.   So either, we aren't hearing the whole story about how she entered the apartment

City code requires self closing and locking doors on Apts. I don't think we have heard any official word about how door opened. Some reports say witnesses heard knocks, but some reports said something about shots fired across room (to dispel notion that she blasted away at him in close range at the door). Only DPD knows, I believe.

[Pato del Muerto 52,342]

You can probably adjust the tensioner on the door so that if won’t pull the door shut if you purposefully place the door at the jamb.  Or place an obstacle there. 

Would that cause some sort of alarm?  I can’t imagine  it would. But does the door access system record latching as well as unlocking, so that this information would be known conclusively?

 

[woohorn 1,131]

I don't think anything else matters:

"Since the mat was red... he is intentionally dead" [read in Johnny Cochran's voice (RIP)]

[Gene Parmesan 3,993]

27 minutes ago, woohorn said:

 

 

 

City code requires self closing and locking doors on Apts. I don't think we have heard any official word about how door opened. Some reports say witnesses heard knocks, but some reports said something about shots fired across room (to dispel notion that she blasted away at him in close range at the door). Only DPD knows, I believe.

 

His body was found across the room.  That's been released by the DPD early on so there was no opening fire while he was standing in the doorway.  Her story is that the door was ajar, if that can be proven false, then it should hurt her case because the alternative is that he opened the door for her and walked back to the other side of the room and then she opened up fire.  That doesn't match with anything she's said.  Same goes for knocking.

[Guest Lobo]

So now it's all okay because she was stinking drunk?  Here's a fun exercise:  clock what time her car came into the apartment garage or at least what time her resident card accessed the exterior doors to enter the interior of the building (doesn't matter that was mistakenly on the wrong floor, if she entered the building anywhere between the garage and the main entrance, it'll be clocked on the keycard system).  Then back out her toxicology report.  If she drunkenly made a mistake, and was way over the legal limit and we know she got off her shift at xx:xx-hrs and entered the building at xx:xx-hrs and called 911 after the shots at xx:xx-hrs.  Then we can reasonably back out that she may have very well been intoxicated while on duty.  It's pretty hard to end duty at 10:00p, get home at 11:00p and already be a .25 BAC, having only started drinking at 10:15p.  

And is there a rule that says, yes---you can bring home your service weapon obviously after a shift, even if you went out drinking between your shift and your passing out at home...but you should be required to either empty the weapon or put it in some kinda secure case before you schlep it up to your apartment.  

Edited May 7, 2019 by Lobo

[C-Man 27,050]

9 minutes ago, Lobo said:

So now it's all okay because she was stinking drunk?  Here's a fun exercise:  clock what time her car came into the apartment garage or at least what time her resident card accessed the exterior doors to enter the interior of the building (doesn't matter that was mistakenly on the wrong floor, if she entered the building anywhere between the garage and the main entrance, it'll be clocked on the keycard system).  Then back out her toxicology report.  If she drunkenly made a mistake, and was way over the legal limit and we know she got off her shift at xx:xx-hrs and entered the building at xx:xx-hrs and called 911 after the shots at xx:xx-hrs.  Then we can reasonably back out that she may have very well been intoxicated while on duty.  It's pretty hard to end duty at 10:00p, get home at 11:00p and already be a .25 BAC, having only started drinking at 10:15p.  

And is there a rule that says, yes---you can bring home your service weapon obviously after a shift, even if you went out drinking between your shift and your passing out at home...but you should be required to either empty the weapon or put it in some kinda secure case before you schlep it up to your apartment.  

I actually stopped reading this when the thread devolved into arguments over the legal definitions of the words "manslaughter" and "murder" and "accident" -- has a story come out confirming she was legally intoxicated at the time of the shooting?

[Guest Lobo]

No, no such story exists.  I apologize vehemently for being the first person in the history of this thread to question whether or not she may have produced a questionable toxicology report.  But several sources in the media, on both sides of her actions (guilty/innocent) have suggested, that her actions may have been due to not only exhaustion from her shift (something I think we can all accept), but also due to impaired judgement from alcohol or drugs (not saying that was the case, but certainly not out of the question).  My point was with the technology in the building with the digital cards, you can easily back out (if you were to obtain her toxicology reports), that she was xx% impaired on drugs and/or alcohol.  You then do the math and say, if the was that fucked up at the time of building entry/shooting/911 call, then she may have also been fucked up while on duty.  Contrary to the after-school specials, it's hard-even for a small woman-to pack that much shit into your body in a very short period of time without purging or just stopping for air.  

[Gene Parmesan 3,993]

Alcohol and drugs in her system will be in her toxicology report.  We'll just have to wait for that.  Your exercise to fill in the time gaps with getting wasted is fun but pointless. 

[hopkinsnhorns 533]

On 5/3/2019 at 8:53 AM, TwiceHorn said:

Now that is a reasonable point.  Not sure I agree, but makes some sense.  I think the facts are so weird and so unlikely to ever occur again, that one would be foolish to say "this gives me carte blanche to go around wasting people."  And I think that probably goes more with an acquittal than by the sentence.

 

 

Case in point - Chase Welch...

https://www.chron.com/neighborhood/eastex/news/article/Deputy-involved-in-Point-Blank-shooting-fatally-11824955.php

[Orange&White 5,516]

2 hours ago, hopkinsnhorns said:

My buddy did that in our Air BnB at my bachelor party in NOLA.  He was former Coast Guard though, not a jarhead.

There was a damn funny Sam Kinison skit about this decades ago.

[C-Man 27,050]

28 minutes ago, Lobo said:

No, no such story exists.  I apologize vehemently for being the first person in the history of this thread to question whether or not she may have produced a questionable toxicology report.  But several sources in the media, on both sides of her actions (guilty/innocent) have suggested, that her actions may have been due to not only exhaustion from her shift (something I think we can all accept), but also due to impaired judgement from alcohol or drugs (not saying that was the case, but certainly not out of the question).  My point was with the technology in the building with the digital cards, you can easily back out (if you were to obtain her toxicology reports), that she was xx% impaired on drugs and/or alcohol.  You then do the math and say, if the was that fucked up at the time of building entry/shooting/911 call, then she may have also been fucked up while on duty.  Contrary to the after-school specials, it's hard-even for a small woman-to pack that much shit into your body in a very short period of time without purging or just stopping for air.  

No worries. Was just wondering if I'd missed something about a tox report in all the back-and-forth in the last 3-4 pages.

[NotActuallyALonghorn 4,968]

So, is my understanding of the section of the penal code for use of force for protection of property correct in that one must actually be unlawfully dispossessed of property in order to use that defense? So she can't say she thought he was robbing her?

[Pato del Muerto 52,342]

There’s no narrative I can think of where knocking on what you think is your door to what you assume is an empty apartment makes any sense. 

[Brisketexan 104,597]

15 minutes ago, Pato del Muerto said:

There’s no narrative I can think of where knocking on what you think is your door to what you assume is an empty apartment makes any sense. 

[Macanudo 12,926]

23 minutes ago, Pato del Muerto said:

There’s no narrative I can think of where knocking on what you think is your door to what you assume is an empty apartment makes any sense. 

What about the one where your door is propped open (if the statement above about the self locking doors is correct) and you proceed in?   If I see my door propped open and no one but me should be home, I think about calling 911 first.   And No, because she was a cop, trained for this kind of thing, doesn't matter.  

[hayden_horn 11,360]

14 minutes ago, Macanudo said:

What about the one where your door is propped open (if the statement above about the self locking doors is correct) and you proceed in?   If I see my door propped open and no one but me should be home, I think about calling 911 first.   And No, because she was a cop, trained for this kind of thing, doesn't matter.  

it's at that point, when things seem a little strange, that i would take a step back and look around, and get into a defensive position. i don't know what's on the other side of that door. oh, weird, a red doormat, i don't have a red doormat, oh, wow, i'm on the fourth floor - that apartment number isn't mine, man i'm tired.

her decision tree was to enter the apartment, gun probably already drawn. she barked a command at the surprised resident, who is wondering why this crazy woman with a gun is yelling at him, and he stands up and kind of freezes, then she shot at him twice, hitting him. at no point in this narrative, what i consider to be the best-case scenario for the cop, does she actually seem to fear for her life. she shot a man she did not have to shoot. she had other options that she chose not to employ. 

so, yeah, i agree with you that she should have called it in. i assume even though she was off duty but still in uniform, she still had access to her radio. she CHOSE to go into the apartment alone. she CHOSE to shoot that gun into a dark apartment. these are not wise choices.

edit: well, since she called in the shooting to 911, we know she had a charged mobile on her.  i guess her radio might have been left in the car or something, because it seems she might have wanted to call it in on that? i dunno.

Edited May 7, 2019 by hayden_horn

[4th and 5 4,914]

1 hour ago, NotActuallyALonghorn said:

So, is my understanding of the section of the penal code for use of force for protection of property correct in that one must actually be unlawfully dispossessed of property in order to use that defense? So she can't say she thought he was robbing her?

Correct, except by "robbery" (a crime against persons) I'm sure you actually mean burglary (a crime against property) and yes a person can use force, and deadly force, to protect their property.

Check out section (b). She was not, in fact, unlawfully dispossessed. I think I pointed this out a few pages back that this would be a problem at trial. And note it you are not justified under 9.41 (force) you cannot use deadly force under 9.42

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.

 

Now how about this.....what if she had a roommate....who had property in her (real) apartment. Lots of reasonable beliefs give her room for a belief that is not in fact true, and not available in 9.41.

 

Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:

(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person's land or property; or

(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

[4th and 5 4,914]

50 minutes ago, Pato del Muerto said:

There’s no narrative I can think of where knocking on what you think is your door to what you assume is an empty apartment makes any sense. 

How about fucking with the lock. Pissed off, so tired, damn door won't open. Curse the door. Pull it back and forth, jack with the handle. Kick the bottom of the door.

He opens the door, who the fuck are you and what do you want?

She is startled, drops her stuff, he retreats, the door is closing, she draws and pushes it open. I bet she's never been so scared in her life. Shifts immediately into cop mode. She starts yelling show me your hands, show me your hands! Get on the ground! 

He doesn't know what the fuck is going on. He makes some movement she considers furtive or threatening.

Pop. Pop.

And here we are.

[Pato del Muerto 52,342]

2 minutes ago, 4th and 5 said:

How about fucking with the lock. Pissed off, so tired, damn door won't open. Curse the door. Pull it back and forth, jack with the handle. Kick the bottom of the door.

He opens the door, who the fuck are you and what do you want?

She is startled, drops her stuff, he retreats, the door is closing, she draws and pushes it open. I bet she's never been so scared in her life. Shifts immediately into cop mode. She starts yelling show me your hands, show me your hands! Get on the ground! 

He doesn't know what the fuck is going on. He makes some movement she considers furtive or threatening.

Pop. Pop.

And here we are.

Sure. But you’ve gone way beyond what I said. I’m questioning the idea that 2 people heard knocking.  Bullshit rumor, or they heard something else, but knocking makes no sense unless you believe it was a planned murder and cover up. 

[Gene Parmesan 3,993]

I have no idea how the application of law works in the courts, but my opinion is that key not working coupled with someone else opening your door gets rid of the reasonableness of thinking it's your apartment.  Certainly a lot less reasonable than walking up on what you think your apartment that is ajar/open.  I have no idea if her case depends on getting a jury to believe that's it was reasonable to think it was her apartment.

[hayden_horn 11,360]

10 minutes ago, 4th and 5 said:

How about fucking with the lock. Pissed off, so tired, damn door won't open. Curse the door. Pull it back and forth, jack with the handle. Kick the bottom of the door.

He opens the door, who the fuck are you and what do you want?

She is startled, drops her stuff, he retreats, the door is closing, she draws and pushes it open. I bet she's never been so scared in her life. Shifts immediately into cop mode. She starts yelling show me your hands, show me your hands! Get on the ground! 

He doesn't know what the fuck is going on. He makes some movement she considers furtive or threatening.

Pop. Pop.

And here we are.

that is actually a better best-case scenario than the one i laid out, but i thought she had said the door was open/slightly ajar. 

even then, she chooses to take the shot rather than retreat to safer ground. i understand shifting into cop mode, but that argument does not work for me. but with your scenario, i could see a sympathetic, pro-cop jury letting her off.

[NotActuallyALonghorn 4,968]

26 minutes ago, 4th and 5 said:

Correct, except by "robbery" (a crime against persons) I'm sure you actually mean burglary (a crime against property) and yes a person can use force, and deadly force, to protect their property.

Check out section (b). She was not, in fact, unlawfully dispossessed. I think I pointed this out a few pages back that this would be a problem at trial. And note it you are not justified under 9.41 (force) you cannot use deadly force under 9.42

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.

 

Now how about this.....what if she had a roommate....who had property in her (real) apartment. Lots of reasonable beliefs give her room for a belief that is not in fact true, and not available in 9.41.

 

Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:

(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person's land or property; or

(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

Under 9.41, it is an either or situation with (a) and (b), correct? As in only one has to be satisfied to justify the use of force? Given that she was carrying her backpack and laptop I believe could she not claim fear of being robbed? The jump from 9.41 to 9.42 does not seem particularly hard. Of course her actions and statements since the incident would have to be consistent with that defense, but given that those sections do not seem to care if she was tresspassing or not it could be a better avenue for the defense.

[TwiceHorn 31,269]

Sort of a general question lurking in the back of my mind.  Anyone know what it's like down there from a homeless and crime standpoint.  Some years, ago, maybe 10, you would have to be something of an urban pioneer to live down there, but that was before this place was even built, I think.

[4th and 5 4,914]

1 hour ago, Pato del Muerto said:

Sure. But you’ve gone way beyond what I said. I’m questioning the idea that 2 people heard knocking.  Bullshit rumor, or they heard something else, but knocking makes no sense unless you believe it was a planned murder and cover up. 

What about banging? Kicking the door in anger. Was the banging the gunshot? Witness testimony can be unreliable, as can media reports. But I can't wait to hear the evidence presented in court.

1 hour ago, Gene Parmesan said:

I have no idea how the application of law works in the courts, but my opinion is that key not working coupled with someone else opening your door gets rid of the reasonableness of thinking it's your apartment.  Certainly a lot less reasonable than walking up on what you think your apartment that is ajar/open.  I have no idea if her case depends on getting a jury to believe that's it was reasonable to think it was her apartment.

It is a factor for sure. I think how she got in will be one of the most, if not the most, important factor.

47 minutes ago, NotActuallyALonghorn said:

Under 9.41, it is an either or situation with (a) and (b), correct? As in only one has to be satisfied to justify the use of force? Given that she was carrying her backpack and laptop I believe could she not claim fear of being robbed? The jump from 9.41 to 9.42 does not seem particularly hard. Of course her actions and statements since the incident would have to be consistent with that defense, but given that those sections do not seem to care if she was tresspassing or not it could be a better avenue for the defense.

One or the other. In lawful possession or unlawfully dispossessed. Not a reasonable belief thereof.

She could possible believe it was a burglary or robbery, depending on what actions she perceived. I haven't hear much to support a robbery theory though.

Just that she thought it was her apartment. And presumably he was an intruder.

[NotActuallyALonghorn 4,968]

Oh, I'm not advocating for a theory, just speculating on which direction her attorneys could go to try and get her off the hook.

[SquishMitten 10,400]

On 5/1/2019 at 12:37 PM, Gene Parmesan said:

Why would you rent an apartment if you have other options?  I mean this isn't the first crime committed at an apartment complex.

You know who you hate more than anybody else when you live in an apartment complex? The person directly above you.

[T’Boo Ted Marshall 2,724]

Attorney buddy of mine in Dallas said evidence will be presented they had an “ongoing” relationship of some sort and this was done out of anger.

He has no doubt she’ll go to prison for life.

[Brothahorn 10,085]

19 hours ago, T’Boo Ted Marshall said:

Attorney buddy of mine in Dallas said evidence will be presented they had an “ongoing” relationship of some sort and this was done out of anger.

He has no doubt she’ll go to prison for life.

If that is true...it makes way more sense than anything else. IIRC, quite a few people threw that theory out from the jump.

[gsoda3 3,236]

Attorney buddy of mine in Dallas said evidence will be presented they had an “ongoing” relationship of some sort and this was done out of anger.

He has no doubt she’ll go to prison for life.

Is he speculating or does he have privileged information?

[Gene Parmesan 3,993]

Is it normal for bombshell evidence like that in such a public case to be kept secret like this?

[Brisketexan 104,597]

Just now, Gene Parmesan said:

Is it normal for bombshell evidence like that in such a public case to be kept secret like this?

Does it make the cop look bad?  If so, yes.