Man shot, killed by off-duty Dallas police officer who walked into wrong apartment p3

[RecoveringYuppy]

I seem to recall citations upthread explaining that there are charges less than Murder which do include prison time.

Manslaughter.

 

[DevilsAdvocate]

Imperfect self-defense^WP. Texas actually originated this doctrine. Which would reduce it to manslaughter, for a sentence of 2-20.

Is that in Texas law somewhere? I don't see any reference to that. Note that in Texas murder does not require malice.

I think an imperfect self-defense would be consider in sentencing (I'm not sure what the Texas sentencing guidelines are), but I see nothing in Texas law that would prohibit a murder charge or even knock it down to a second degree felony.

 

[SpitfireIX]

Is that in Texas law somewhere? I don't see any reference to that. Note that in Texas murder does not require malice.

I think an imperfect self-defense would be consider in sentencing (I'm not sure what the Texas sentencing guidelines are), but I see nothing in Texas law that would prohibit a murder charge or even knock it down to a second degree felony.

It's in case law, rather than the penal code. I'll try to find some references tomorrow and post them.

 

[RecoveringYuppy]

So the punishment is a third degree felony:

OK. So CNH could wind up with prison time.

I'll let other people decide if imperfect self defense is what they had in mind. I'm also not clear that that reduces the charge to man slaughter or is a sentencing consideration.

ETA: So bottom line is that manslaughter may be an appropriate charge for this crime in Texas. Still not seeing CNH as it's defined in Texas. And I'm not really clear on whether imperfect self defense is currently recognized in Texas law or whether this rises to imperfect self defense.

 

[Skeptic Ginger]

How could you not notice the red rug in front of the door?

"The fourth floor of the garage where Guyger backed in is open air. You can see outside. The third floor is closed in.

One of her neighbors, for example, had a large decorative planter outside her third-floor apartment, Hermus said, but no such thing was on the fourth floor.

Lighted signs displayed the apartment numbers outside each unit.

“She walks past 16 different apartments and fails to register the number 4 on any one of them,” Hermus said.

He held up a bright red doormat that Jean had outside his door. Guyger, on the other hand, had no mat — only gray concrete outside her door, Hermus said.

... And her apartment was neat, Hermus said. Jean’s was cluttered and, unlike her own unit, had no large table near the entryway."

Inside those apartments look considerably different.

Was there loud music on or singing at the time or not? That wasn't clear.

Had Amber ever complained about loud music in that apartment before?

Is there any evidence she went to her apartment first and then upstairs? Her car parked on the wrong floor supports her story.

The neighbors did not hear what she claims she yelled. Is there any reason to think the neighbor's testimony was unreliable?

If he was bent over when shot he might have been getting up. I suppose that could be interpreted as moving toward her.

Why did the cops search his apartment and not hers, for example to see if it looked like she'd gone to her apartment first? And if they searched his for drugs they should have searched her apartment for drugs, but more importantly they needed to draw her blood and look for intoxicants.

She testified that she tried CPR. That wasn't credible given she was outside pacing the hall when the police arrived. Lying about one thing suggests her testimony is not reliable.


I find her story hard to believe but I also can't see what motive she had unless she was pissed at noise as she was about to go to sleep after her night shift.

Establishing a motive other than an accident seems key to the prosecutor's case.
However, if it wasn't murder then it most certainly was negligent homicide.

 

[JoeMorgue]

Look at it this way.

Would the events being discussed functionally different from if Guyger had been sitting in her apartment (her actual apartment, not the alternative fan fiction universe where her apartment magically appears wherever she images it to be, willed into existence by her very thoughts that the defense and her apologist want this trial and argument to take place in), had been cleaning her service pistol after hours, had it accidentally go off, the bullet travel through the ceiling above her, into Jean's apartment, and kill him?

Yes, we can all agree that would be different.

This wasn't an "accident." She pointed the gun at another human being and pulled the trigger because she wanted that person to die. She didn't think the gun shot magical healing bullet. The gun didn't go off in her hand. She wasn't firing a warning shot and it ricocheted off the fridge door and hit Jean. Jean dying was the intended outcome of her actions. It's what she wanted to happen when she took the actions.

The law might not make the distinction and we can (and will) argue the pure semantics of it forever, but there is a difference between "accidental killing" and "I'm so wrong about so many factors I put myself into a situation where someone's death occurred."

This isn't the equivalent of taking your eyes off the road for a second and hitting a pedestrian in a crosswalk. This is the equivalent and getting into your car blindfolded, driving the wrong way down the highway, at no point taking the blindfold off when you hear the car horns honking and people screaming "What's the matter with you!" and then hitting someone.

If we as a society and legal system are going to maintain distinctions between accidental unlawful killings of various types and intentional unlawful killings of various types we have to, have to, retain the ability to go "No... your 'accident' is not reasonable" or as I've said many times we've essentially watered the concept down to asking people "Hey do you want to be a murderer or not?" and being forced to accept their answer.

There is a logical, moral, and there should be a legal limit to how "wrong" you can be about the situation and still use it as an excuse.

 

[Skeptic Ginger]

Look at it this way.

Would the events being discussed functionally different from if Guyger had been sitting in her apartment (her actual apartment, not the alternative fan fiction universe where her apartment magically appears wherever she images it to be, willed into existence by her very thoughts that the defense and her apologist want this trial and argument to take place in), had been cleaning her service pistol after hours, had it accidentally go off, the bullet travel through the ceiling above her, into Jean's apartment, and kill him?

Yes, we can all agree that would be different.

It's also an interesting hypothesis. (I know you didn't mean it that way.) But I suppose that bullet hole was in the wall, not the ceiling.

 

[Bob001]

Really? You can definitely be sent to prison in the State of Washington for CNH.

In Texas the max is two years in jail, as distinct from prison.

 

[Bob001]

Well then, it's obviously not 1st degree murder. Unless your seeing some premeditation that I am not. Is there a 2nd or 3rd degree statutes?
....

Premeditation does not require any specific period of time. It's not like she had to get up that morning and say, "Today after work I'm going to kill my neighbor." It can be a matter of seconds between forming a thought and acting on it. She chose to enter the apartment, she chose to draw her gun, and she chose to fire her weapon at an unidentified "silhouette." Each of those -- and other things she did -- is a separate, distinct act, and at each point she could have made a different decision.

"The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly."

"This purpose to kill may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act."

http://www.duhaime.org/LegalDictionary/P/Premeditation.aspx

Texas apparently doesn't have second degree murder or an equivalent, which might be a more appropriate charge. But this was no accident.

 

[acbytesla]

Premeditation does not require any specific period of time. It's not like she had to get up that morning and say, "Today after work I'm going to kill my neighbor." It can be a matter of seconds between forming a thought and acting on it. She chose to enter the apartment, she chose to draw her gun, and she chose to fire her weapon at an unidentified "silhouette." Each of those -- and other things she did -- is a separate, distinct act, and at each point she could have made a different decision.


http://www.duhaime.org/LegalDictionary/P/Premeditation.aspx

Thanks, I know what premeditation is and I still don't see evidence of it.

Texas apparently doesn't have second degree murder or an equivalent, which might be a more appropriate charge. But this was no accident.

Accident? No. Understandable mistake? Possibly.

 

[acbytesla]

In Texas the max is two years in jail, as distinct from prison.

A rose by any other name.

 

[Bob001]

A rose by any other name.

Actually not.

Many people use the terms jail and prison interchangeably, as though all convicted offenders are shipped to a singular location to serve their sentences. However, there are actually stark differences between jail and prisons.
In fact, there are actually three types of correctional facilities in Texas: county jails, state jails, and prisons. Generally, a misdemeanor conviction result in incarceration in a county jail, a state jail felony conviction will lead to incarceration in a state jail, and a conviction for a third-degree felony or higher results in a prison sentence.

https://www.matthoraklaw.com/criminal-defense/sentencing-in-texas/state-prison-vs-jail/

 

[acbytesla]

Actually not.

https://www.matthoraklaw.com/criminal-defense/sentencing-in-texas/state-prison-vs-jail/

I cannot speak with any knowledge about the Texas prison system, but i have known people who have been incarcerated in more than a couple of correctional facilities in Washington and Oregon. They have said being incarcerated at any of them is not any fun. But there are differences which may make some better than others. And to a man, surprisingly, they have all said that jail can be much worse than prison. That's because of the temporary nature of jails. There are almost no rehabilitation programs in jails. Whereas in some prisons there are classes which not only can help them get jobs when they get out, it helps with the boredom. And in Washington State, particularly King, Snohomish and Pierce County are more crowded than the prisons.

 

[DevilsAdvocate]

It's in case law, rather than the penal code. I'll try to find some references tomorrow and post them.

Thanks. I'd like to see that. I'll look around a bit myself. That could explain why the Rangers originally charged her with manslaughter.

 

[quadraginta]

<snip>

She intended to kill the man. She said so herself. She considered no other option. She said so herself. She had no justification for her behavior except her claims of confusion. Murder is the right charge, for which she deserves to be convicted. (And criminally negligent homicide would get her at most two years in jail, not even prison. That would be a travesty.)

Minimum two, maximum ten. Because she used a gun.

Early in the first iteration of these threads I cited a case of a Texas man who got eight years for CNH because he used a firearm.

 

[quadraginta]

Thanks, I know what premeditation is and I still don't see evidence of it.

<snip>

She stated under oath in court that she intended to kill him.

How long it took her to make that decision is irrelevant. When she made it is. She made that decision before she shot him. Hence intended.

 

[Rolfe]

Here, the words "prison" and "jail" are used essentially synonymously. I had no idea there was a distinction in America.

 

[Rolfe]

OK. Why did she shoot him if she knew she was in the wrong apartment and she knew he wasn't a threat?

She might be lying about some stuff, but nobody's claimed she's crazy. Why would she shoot the guy if she recognized she was in the wrong place and he posed no threat? To avoid the embarrassment of saying "Whoopsy! I'm sorry?" That's a little far-fetched.

This is what I want to know. If she did realise she was at the wrong house, then why on earth would she have proceeded to kill the occupant? It makes no sense, unless it was all a complicated plot to murder an annoying neighbour.

Conversely, if she didn't realise she was at the wrong house, as seems most likely, how on earth did she miss all the signs? Especially the red rug and so on? That doesn't make sense either.

That's why I'm suspicious she was high on the prospect of killing an intruder and that anticipation blinded her to what she should have seen.

 

[JoeMorgue]

I don't for a second entertain the idea that Amber Guyger intentionally went to Botham Jean's apartment for the express purpose of killing him.

However if we're being honest if Amber Guyger had went Botham Jean's apartment for the express purpose of killing him... what about the sequence of events would be any different to an outside observer? The only difference is what Guyger tells us.

That's been one of my major arguments this whole debate. If Guyger had shot Jean intentionally in a pre-planned fashion... how would we, the outside observers, know the difference? The actual events of what happened are not in question and the only thing in question is Guyger's mental state. If "In mens rea" and "Mistake of fact" mean what so many people seem to think it means, that whatever mental state this woman claims to be in is sacrosanct and unquestionable, how on Earth is premeditated murder even a crime we can convict anyone of ever?

Literally every murder could be committed and then after the fact the murderer could just go "LOL no I thought it was situation X and therefore I'm innocent" and we'd have to accept that.

I only reject the premeditated murder setup conspiracy theories because the "excuse narrative" is too convoluted. "Wrong apartment" is too messy of a fable. "I went to politely ask Jean to keep his music down so I could sleep after a long day of PROTECTING OUR FREEDOM AND SAFETY and the big scawwy drugged out black man charged at defenseless little ole' me so MY POLICE OFFICER SWAT TEAM NAVY SEAL TRAINING kicked in" would have been a better "story" to sell the exact same sequence of events.

 

[Cavemonster]

I only reject the premeditated murder setup conspiracy theories because the "excuse narrative" is too convoluted. "Wrong apartment" is too messy of a fable. "I went to politely ask Jean to keep his music down so I could sleep after a long day of PROTECTING OUR FREEDOM AND SAFETY and the big scawwy drugged out black man charged at defenseless little ole' me so MY POLICE OFFICER SWAT TEAM NAVY SEAL TRAINING kicked in" would have been a better "story" to sell the exact same sequence of events.

I don't think "Too weird to be fake" is compelling.

Look at Smollett's story. A hot sauce bottle filled with bleach? And that was supposedly pre-planned over a long period of time

I don't find the premeditated theory compelling either. But if it were premeditatated, one of two things would have been the case.

1) Either she didn't have a cover story planned and came up with it in the spur of a very charged moment, in which case you wouldn't expect perfect logic in how rational the explanation sounded.

2) Or, the cover story would be prepared ahead of time, in which case she as an experience law enforcement officer might have a sense that a story that sounded too obvious might by itslef be suspicious because real situations are more idiosyncratic.