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4th and 5

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Posts posted by 4th and 5

  1. 11 hours ago, Pam Cummings said:

    I've literally never seen this before.

     

    Home owner mistakes a neighbor for an intruder and shoots and kills them, sure.

     

    But to mistake someone else's home for yours, barge in, and shoot the person who lives there? I've never heard of that.

     

    Even if it was a legitimate mistake, which i just don't believe at all, the level of stupid required to do such a thing deserves the most severe charges, imo. Get this moron off the street.

    You may not have seen it. I have and it is not all that uncommon.

    9 hours ago, 'stache said:

    Those defenses fall apart on the reasonableness standard too. It's not reasonable to (a) "accidentally" enter the wrong apartment, and (b) start blasting your gun before you even see whose inside. 

    Seriously, there's no legalese necessary to understand how badly she fucked up and why she deserves to spend time in jail. The facts are she shot a guy without any "reasonable" reason. Open and shut.

    There are a lot of assumptions here. There are many reasons why it may have been reasonable, or not. It will depend on the evidence admitted at trial. Did she even enter the apartment? Could she see? if so, what?

    There are so many intricacies to this case it is like a study in culpable mental states, homicide, use of force, vision and perception, reaction time, and so on....

    It's fascinating.

    7 hours ago, TXSooner518 said:

    Also, the ability to not retreat before using deadly force in self-defense only applies if you have a right to be where you are. She didn't have a right to be in his apartment, thus must retreat rather than using deadly force if possible. It was possible.

    Correct. Also if she enters she is committing a criminal trespass, and would be violating the law, which loses the no duty to retreat jury charge instruction

    6 hours ago, Huckleberry said:

    Any other result should scare the shit out of apartment complexes. Why in the hell would I rent an apartment when a tired person could easily confuse it for their own? Wrong building, wrong floor, etc.

    Hell, hotels would immediately have a problem as well.

    Bro, I've been so shithoused I was in the wrong fucking tower of the Nugget in Las Vegas trying to get in "my" room. It happens. The apartments in question are as cookie cutter as a hotel room..... 

     

    5 hours ago, 'stache said:

    Occam's razor tells me nobody is stupid enough to enter the wrong apartment. It's just not believable. We haven't seen any evidence of a prior relationship or altercation or any political motivation (my speculation was that it was a hit based on his family's political connections in his home country). Its looking more and more like it was truly random, but that in no way exonerates her. She is guilty of a crime even if the rosiest of circumstances are true. 

    Wrong. That's exactly what happened. Whether it was a reasonable belief will be the issue at trial. And you'd have to know all the facts before drawing a conclusion

    5 hours ago, Gene Parmesan said:

    People are absolutely stupid enough to enter the wrong apartment.  That's not even top 1000 of the stupidest things people are capable of.

    Yep.

    4 hours ago, BurntEyes said:

    It does happen and a good friend of mine got killed for it. 

    Ironically, he was a liberal who was largely anti-gun and almost hippy like in his non-violence.

    That shooter also walked.

    Sorry about your friend. It happens more than you would think.

    4 hours ago, pops said:

    Has anyone figured out how she got in?  Was his door open?  Do they have shitty keys there and hers actually opened his door through some computer glitch?  Was it possible his door was unlocked, she swiped her key and the door opened therefore she thought "my place"?

    All important issues. Was she fucking with the lock and he heard it and answered? Who knows. Reserve your opinion until you do know.

     

    4 hours ago, C-Man said:

    Where have I said I support her (or defendants in DWI death situations for that matter)? Not in the slightest. She fucked up and there's a price to pay, probably prison. What I'm saying is I don't believe she was on the 4th floor that night to shoot Botham Jean dead. It's far more likely she was there because she was drunk or tired and mistakenly got into his apartment -- we don't definitively know -- and killed an innocent man. That said, it doesn't excuse what she did. Should she have backed out and de-escalated before going to the gun? Absofuckinglutely. What I guess I'm saying is this wasn't a straight-up murder or execution. I think it was extremely poor decision making by a substandard cop and resulted in an innocent man's death.

    Maybe. I'm sure she wishes she did. What if he answered the door because she was fucking with the lock. He's close. Real close. She knows distance is not her friend here...21 feet and he can get to her before she can draw and fire. She ran high risk warrant apprehensions. Major city, dealing with minorities, and often not in a good way. I'll bet never without backup. Always on alert because of her job. And then she sees a large black male in "her" apartment. What do you think she's going to do?

    What if she entered a dark apartment and he walked out of the bedroom and startled her in the entry way?

    We don't know the answers to these questions.

     

    3 hours ago, Beau Vine said:

    I did it once in the dorms in college.  I was hammered.  The elevator stopped on the floor below mine.  I got off and walked four doors down like I always did, and opened the door.  I walked in, and there were three girls sitting on the floor watching TV.  They looked at me and squealed, and immediately began ripping my clothes off.  I spent the next six hours fulfilling the insatiable, repressed desires of passion that young nubile women have.  When I was done, I walked back to the elevator and realized that I was on the 4th floor, not the 5th. 

    (*) Parts of this story have been embellished by the author.

    You had me there for a second

    • Like 1
  2. 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 

    • Like 1
  3. 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. 

    • Like 1
  4. 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  

     

    • Like 1
  5. 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.

     

    • Like 1
  6. 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.

  7. We fished the Chandeleur Islands last week. The storm and north wind shut the bite down Friday morning but it picked up in the afternoon and we ended up with some trout and reds to 38 inches. Saturday was the most productive fishing day of my life. We had 4 slot reds, and 6 oversized around 38 inches (released) and broke off a few more just trying to horse them in instead of fighting them forever on light tackle. One large Spanish mackerel and a bluefish. And so many trout that I think I better not post the number on the internet. Could not get much going with the topwater lures, unlike last trip, but the cork and gulp combo spent more time underwater than above water. Can't wait for the next trip.

    • Like 2
  8. Flew in Tuesday night, Weds am Lunch was Acme vs Felix, Felix won. Acme just doesn’t take the care in shucking oysters and the last two times I’ve been there they were over cooked and had bits of shell

    Weds night was one of my favorites, GW Fins. We ate all the apps, red shrimp, tempura wings (fish throats), pork belly, raw snapper. Was outstanding. 

    Thursday the storms had us hunkering down. Then drove to Biloxi and on the way hit the Lost Cajun in Slidell, which was excellent.

    Then fished 2 days in the Chandeleur Islands.

    Then drove back to NOLA this morning, ate at Stanley for breakfast. Spent the day at the WW2 museum and then had at early dinner at GW Fins  and flew home.

    it was a damn good week. 

  9. 15 minutes ago, Patricio Swayze said:


    It’s only my second one. Other was less than a year old. I’ll probably go look for more tomorrow.

    I’ve caught hundreds of snakes, but never even seen a king in Texas. But when I was visiting Southern California, stumbled upon a 4 foot beauty that I caught and released. My son has one now that is about 3 and change, sweet as can be, but is a voracious predator of anything dropped in its cage. Once including a rattlesnake.

    • Like 1
  10. 18 hours ago, Assman said:

    Well, it might have been the best weekend of my life.  There's too much to type so I'll just copy and paste my post from FB:

    "I can't truly put into works the experience of attending the Masters. Walking through the gates, seeing the emblematic scoreboard on the first fairway, the serene tee box on two, the elevation drop on six, the magnolia tree on 10 that Bubba curved his approach around to win in 2012, the pine straw that Lefty hit out of on 13 to win in 2010, and the Sunday hole location on 16 that has shaped so many wins and losses throughout the years. On top of that, I got to witness arguably the most iconic athlete since Jordan winning his 5th Masters 22 years after his first, after so many people had written him off. The atmosphere at Augusta National with Tiger in contention is indescribable. No matter where you are on the 345-acre course, you know when Tiger hit a remarkable shot as the roars echo through the pines like thunder. This weekend was one I'll never forget and one I'll be talking about until the day I die. Just bury me in this hat" :wearing Masters hat in pic:

    That pretty much sums it up.  I lucked into weekend passes so we saw the 3rd and final rounds.  The first day we took our time, hit the gift shop on the way in, so by the time we walked out to the course it was after 9AM, so all the good chair spots were taken.  We ended up setting up on the 17th tee box and then walked the course.  I followed Jordan for the second nine.  Spent some time in the bleachers on 12, fairway on 13, and bleachers on 15. 

    On Sunday, we got up earlier, and were able to get about 5th row on the 16th green with a great vantage point.  They don't serve beer until 11AM on Sunday, but fortunately we had some suite passes with a full bar.  Had a Tito's in hand by 8AM and walked the course.  We spent a lot of time on the 2nd tee box and that might be my new favorite spot on the front nine.  We were on the side with the wall and you're so close to the players that you can reach out and touch them.  On the groupings with no notable players, we were literally the only patrons at the tee box.  We could heard all the player-caddie and player-player convos.  Got to hear them cut up, make fun of each other's drives, and drop F bombs.  Definitely a different experience than on TV, and it was surreal that we were at the Masters and were the only people on a given hole.  We ended up back at our chairs on 16 right after Justin Thomas' ace, so we missed both that day.  Ended up watching the last 7 groups come through.  The Tiger effect is real.  The electricity in the air when he is on a hole is unreal.  And to top it off his shot on 16 sealed the victory for him.

    10/10.  Would experience again.

    My friends gave me shit at the spring game for saying I'd rather have a badge for the Masters than go to the National Championship game with the Horns in it. 

    You just don't know til you go.

  11. 13 minutes ago, Pato del Muerto said:

    I need a ruling here from the marshalls. 

    Wife decides to purchase a massage for me, even though I don’t want one and never had one and don’t like people touching me. 

    It was for like 5 days after she told me. I forget the appointment. I tell her I missed it, she gets mad at me for wasting money. 

    2yto2z.jpg

    • Like 7
  12. 11 hours ago, BrazilHorn said:

    Here are some of the worst people in air travel:

    I travel weekly and deal with some variant of these folks every week (although I no longer fly SWA)

    Fat Zero Core Strength Guy - Uses the back of your seat as a fucking pull up bar to lever himself up out of his seat to go to the head

    Fast Recline Guy - Seeking out the destruction of laptop screens every trip as he slams his seat back as fast as it can possibly go

    Carrying 9000lb carry on down aisle sideways guy - Determined to shoulder check entire plane with his giant Helly Hansen bag stuffed to the gills full of shit from his Princess Cruise trip

    Rush up the aisle as plane is at gate guy - doesn't ask or articulate the fact they have connection - just bum rushes as fast as they can towards front of plane.

    Old person who apparently hasn't watched news in regards to airline travel rules in 15 years guy - O/U 3 times through metal detector before they get all of the shit out of their pockets - change, knives, phone etc etc etc

    If you are flying Southwest

    Family who boards plane last because they were stuffing their face at the airport McDonald's but has to sit together and you are flying solo so you get asked to take middle seat elsewhere for a drink coupon and maybe some karma people - Fuck these people

    Fat Zero Core Strength Guy - is also the guy who when he gets in the seat, collapses in it enough to almost break the bolts anchoring the seat to the plane. 

    The I always sucked at Tetris guy - huge line behind him, no one in front of him as he tries to stick his carry on in the compartment every direction but the right way

    the I’m in C group but I’m gonna pretend I don’t understand Southwest boarding guy - he’s self explanatory. And an asshole.

    the I love salmon when I fly guy - the leftover shit you bring from home to eat should not foul the entire airplane!

     

    • Like 3
  13. 20 hours ago, Gil Bang said:

     

     

    So I keep seeing folks post this.  "Hey everybody, just use $20 /gal gas, and you'll be good".

    Meanwhile, every mexican that cuts lawns for a living fills their cans at the cheapest station in town, no matter what town you are in.  ( And they gather at the coffee pots and take forever to get the cream/sugar blend just right)

    Seriously, let's say gas is $3 bucks a gallon.  Trufuel is about 20.  So, 17 bucks extra per gallon.  

    How many gallons do you expect to burn over the life of a mower?   10  gallons is $ 170.00 extra for trufuel,  give or take.  If you burn 20 gallons, you've spent more than the price of the average new mower.   I fill a 5 gal can every month or two, I suppose.  Maybe I'll start keeping track of that.  I'll bet I've burned over 50 gals in my weed machine.  I would have spent an extra $850 on trufuel.  I could have replaced the mower with a comparable new one a half-dozen times for the price differential.

    Look motherfucker, we don't come to Surly for a dose of common sense. Or maths. 😉

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