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4th and 5

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Posts posted by 4th and 5

  1. 2 hours ago, msudawg said:

    Possibility defense might go for making it a crime of sudden passion, knocks down to 2nd degree felony and 2-20.

     

     

    Here's the law on that.

     

    Sec. 19.02. MURDER. (a) In this section:

    (1) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.

    (2) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.

    (b) ...

    (c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.

    (d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.

     

    I don't see it mattering much, because I don't think anything over 20 is in range.

    And let me add: I don't see the "provocation" element here. Certainly the terror. But no provocation.

    But she'll get the charge to prevent reversible error.

     

    2 hours ago, bigup2dahorns said:

     

     

    I was gong to post this earlier but I have been busy today raking LE over the coals:

    The state is going to have her bond raised because she is now convicted, and as such is a flight risk, and is guaranteed of a prison sentence, and she is not entitled to bond pending appeal.

    And that is exactly what they did......the judge found the existing bond insufficient, so prison time starts today

     

    52 minutes ago, TwiceHorn said:

    That raises an interesting point.  I don't know if we ever figured out whether the jury was instructed to judge her actions as a reasonable ordinary person, or a reasonable person with 3500 hours of law enforcement training.

    It is the reasonable belief as defined by statute TPC 1.07 (42). Jury charge elements and definitions come straight out of the Penal Code

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

    • Like 1
  2. I skimmed thru the last few pages because I've been in court all afternoon but just wanted to add a few corrections

    1. there is no probation for murder, period.

    2. she cannot be released on bond pending appeal for murder, period.

    3. the deadly weapon finding means she has to do half the time before she is parole eligible. Not released. Eligible. She will serve maybe 80% of her sentence, minimum, for murder.

    I was thinking this verdict was a compromise. The jury followed the law regarding culpable mental states and would hit her on the low end. Most at 5, maybe a few others with an opinion on 10, the jury meets in the middle at 7.

    But this punishment evidence is pushing that number up. I don't think a one of them is going to feel sorry for Amber Guyger once the state is done.

    • Like 2
  3. If you are listening to the knucklehead on WFAA, he is wrong about the law.

    She cannot be released on bond pending appeal for murder

    
     

    Art. 44.04. BOND PENDING APPEAL. 

    (b) The defendant may not be released on bail pending the appeal from any felony conviction where the punishment equals or exceeds 10 years confinement or where the defendant has been convicted of an offense listed under Article 42A.054(a), but shall immediately be placed in custody and the bail discharged.

    
     

    Art. 42A.054. LIMITATION ON JUDGE-ORDERED COMMUNITY SUPERVISION. (a) Article 42A.053 does not apply to a defendant adjudged guilty of an offense under:

    (1) Section 15.03, Penal Code, if the offense is punishable as a felony of the first degree;

    (2) Section 19.02, Penal Code (Murder);

    • Like 1
  4. 1 hour ago, TXSooner518 said:

    That Tribune article and many other articles and such are disregarding that she didn't prove that she was entitled to the deadly force presumption - no evidence that, even under her mistaken beliefs, he entered an OCCUPIED habitation unlawfully and with force, and no evidence that the force was immediately necessary to prevent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

    So it should just be basic self-defense, was the force both necessary and proportionate?

    Yes. That's what I said way back when this happened. It's old school self defense with no instruction (no duty to retreat) / presumption (of reasonableness of force). This is what the law of self defense used to be.

    5 minutes ago, Brisketexan said:

    1) from what I understand of it, I don't think that the Castle Doctrine instruction was proper, but....

    2) by giving the jury that instruction, the judge managed to take away what might have been a key argument for Guyger on appeal.  That is, Guyger can't attack the verdict by arguing that it may well have been different if only the judge had given the jury the castle doctrine instruction that she asked for.

    Giving the defense an arguably improper jury instruction on the verdict form is a gamble....it COULD cause the jury to screw up, but it also takes away that appellate point afterwards, so the verdict is more bulletproof.  I haven't thought it all through here, but man....I don't think Guyger has many good appellate points to make.  Her expert got excluded, but I think that was a sound decision by the court.  What else does she have?

    Exclusion of experts is it. I think any other error would be minor and found harmless.

    I've posted previously that the failure to include lesser included offense or a castle doctrine charge is reversible error on appeal. Giving them even where little to no evidence of it makes the case bulletproof on appeal.

    5 minutes ago, Jive Turkey said:

    Cross examination of Guyger sealed the deal. 

    She was completely unprepared.

    This was a winnable case. The defense lost this case. 

     

    • Like 1
  5. 2 hours ago, TXSooner518 said:

    I dunno, even if it really was her apartment, since the "intruder" entered while it was unoccupied, she needs some reasonable belief that deadly force is needed to stop a murder, agg assault, sex assault, or robbery. His mere presence isn't enough to trigger that (as it would be if an intruder entered with force while it was occupied). Given he had no weapon, and there was no other evidence, I think castle doctrine would have been very shaky even in her own apartment. 

    I think the castle doctrine presumption and instruction do not apply in this case.

    But that's my opinion based on the evidence presented. Which brings me to my next point....

    2 hours ago, hopkinsnhorns said:

    I missed the live trial action this morning, but can one of our law dogs explain why the Judge instructed the jury that they could consider the Castle Doctrine defense?  It doesn't appear to be applicable given the actual circumstances of this murder.  Does this make it more likely for the verdict to stand on appeal?  There's got to be a good reason.  I just can't figure out what it is.

    Not giving a defensive  charge or instruction where there is a scintilla of evidence to support it is reversible error. They do not want to try this case again.

    59 minutes ago, Brisketexan said:

    Oh, and as a trial lawyer, there are two words that elevate the heart rate more than any others:

    "Jury's back."

    Seriously.  Every damned time, I feel like my heart is going to beat right outta my chest.

    Yep. 

    Now imagine the stakes are freedom, and not money.

  6. @TXSooner518You said I said a DV of NG, which I assume means directed verdict of not guilty.

    I did not say that.

    I said there is no evidence to get the lessers in this murder trial. I have also pointed out that if there is any evidence whatsover (a "scintilla"), the judge will put it in the charge because it is reversible error not to.

    I also said that if she were charged with manslaughter or CNH, a specific negligent or reckless act would have to be alleged in the indictment and proven in court. Without one, it is a NG

  7. 1 minute ago, TXSooner518 said:

    I was there from jump, you were the one saying manslaughter was a DV of NG, because intentional.

    I actually am finding him pretty annoying and grating, and I'm much more inclined to the state's side of this case.

    WTF I did not say a directed verdict of not guilty, I said she shouldn't even get the charge, because there was no evidence to support it.

  8. 15 minutes ago, TXSooner518 said:

    Goddamn, I was told the stupid Sooner couldn't understand the law.... 😁

    I think the issue is that if there is any evidence, no matter how small, incredible, inconsistent and unbelievable, it is reversible error not to give the charge. The judge doesn't want to try it twice and neither does the state

    Also the lawyer on WFAA said the same thing. She admitted causing his death intentionally.

    The jury probably won't pick up on the fine details of the law and convict her of manslaughter  

  9. Could there be more polar opposites than Patterson/Chuckles and CDC/Herman?

    I mean really take a big swig of brew and ponder that. Where we were and where we are now. We had bad idea jeans and too dumb for capital punishment getting the football program buttfucked by borderline erotic Bielema. 

    Things are looking up.

    ALSO: I'm happy for Shane Buechele.

    • Like 2
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