Jump to content

4th and 5

Legacy Members
  • Posts

    3111
  • Joined

  • Last visited

Posts posted by 4th and 5

  1. 14 hours ago, Dahobbs said:

    Stupid edit time limit.

    To clarify, the defendant has the burden of proving the facts surrounding an affirmative defense. This is critically different than traditional defenses, which the prosecution must essentially negate by beyond a reasonable a doubt. 

    And hang on right here two, Mr Hobbs

    The defendant has the burden of PRODUCTION of some facts, even if weak, controverted, or incredible, entitling her to a jury charge on the defense

    It is the state's burden to DISPROVE, beyond a reasonable doubt, the justification of self defense. 

  2. 1 hour ago, Dahobbs said:

    No he isn't. You have been completely incorrect. It is a crime that can be excused IF the Defendant proves an affirmative defense. That last bit is a huge non-semantic difference.  Here are some other examples of you being wrong about things:

    Mens rea is simply the mental state of the actor (literally meaning "mental thing" in latin). There isn't only one mental state under the law. Intentional is a mental state. Reckless is a mental state. Negligent is a mental state. And "malice aforethought" is also a mental state. Each of those have different meanings and typically result in varying degrees of culpability/liability. Generally speaking when it comes to homocide, "malice aforethought" is the most culpable mental state because it requires not just the intention to kill, but also premeditation.  If these were all placed on a spectrum, it would look like this:

    Malice aforethought (planned in advance to kill person) ----> Intentional (specifically intended to kill the person) -----> Reckless (ignored the extreme degree of risk that the person would be killed) -----> Negligent (failed to act prudently)

     

    Whoa whoa whoa, don't be bringing up the common law of cavemen in here, stick to chapter 6 of the TPC please......intentionally, knowingly, recklessly or with criminal negligence, and no others.

  3. 8 hours ago, JBJ said:

    Its easy to show this false: by that definition capital punishment, insanity, plug pulling, and self-defense are murder, but they are in fact not.

    Intent is part of the act.

    The mens rea is "malice aforethought" in common law.

    Well, it was obvious you were wrong, but let me debunk one of your theories, "plug pulling is murder" right here:

     

    
     

    HEALTH AND SAFETY CODE

     

    TITLE 8. DEATH AND DISPOSITION OF THE BODY

     

    SUBTITLE A. DEATH

     

    CHAPTER 671. DETERMINATION OF DEATH AND AUTOPSY REPORTS

     

    SUBCHAPTER A. DETERMINATION OF DEATH

     

    Sec. 671.001. STANDARD USED IN DETERMINING DEATH. (a) A person is dead when, according to ordinary standards of medical practice, there is irreversible cessation of the person's spontaneous respiratory and circulatory functions.

    (b) If artificial means of support preclude a determination that a person's spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease.

    (c) Death must be pronounced before artificial means of supporting a person's respiratory and circulatory functions are terminated.

  4. I don't think if he was passing or next to your daughter, he was decelerating before making a right hand turn, and it was done unsafely.
    
    The operator driving on the shoulder shouldn't be passing traffic in the main lanes of travel unless they are stopped, like at a light or for traffic.

     

    Sec. 545.058. DRIVING ON IMPROVED SHOULDER. (a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:

    (1) to stop, stand, or park;

    (2) to accelerate before entering the main traveled lane of traffic;

    (3) to decelerate before making a right turn;

    (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;

    (5) to allow another vehicle traveling faster to pass;

    (6) as permitted or required by an official traffic-control device; or

    (7) to avoid a collision.

    (b) An operator may drive on an improved shoulder to the left of the main traveled portion of a divided or limited-access or controlled-access highway if that operation may be done safely, but only:

    (1) to slow or stop when the vehicle is disabled and traffic or other circumstances prohibit the safe movement of the vehicle to the shoulder to the right of the main traveled portion of the roadway;

    (2) as permitted or required by an official traffic-control device; or

    (3) to avoid a collision.

    (c) A limitation in this section on driving on an improved shoulder does not apply to:

    (1) an authorized emergency vehicle responding to a call;

    (2) a police patrol; or

    (3) a bicycle.

     

     

    Sec. 545.101. TURNING AT INTERSECTION. (a) To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway.

    (b) To make a left turn at an intersection, an operator shall:

    (1) approach the intersection in the extreme left-hand lane lawfully available to a vehicle moving in the direction of the vehicle; and

    (2) after entering the intersection, turn left, leaving the intersection so as to arrive in a lane lawfully available to traffic moving in the direction of the vehicle on the roadway being entered.

    (c) On a street or roadway designated for two-way traffic, the operator turning left shall, to the extent practicable, turn in the portion of the intersection to the left of the center of the intersection.

    (d) To turn left, an operator who is approaching an intersection having a roadway designated for one-way traffic and for which signs are posted from a roadway designated for one-way traffic and for which signs are posted shall make the turn as closely as practicable to the left-hand curb or edge of the roadway.

    (e) The Texas Transportation Commission or a local authority, with respect to a highway in its jurisdiction, may:

    (1) authorize the placement of an official traffic-control device in or adjacent to an intersection; and

    (2) require a course different from that specified in this section for movement by vehicles turning at an intersection.

  5. 24 minutes ago, Red Six said:

    J. F. C.

    Murder in Texas is defined in the Texas Penal Code, not common law.

    Mens reas in Texas are defined in the Texas Penal Code. They are generally Intentional, Knowing, Reckless, and Negligent.

    Insanity is an affirmative defense. It doesn't expressly negate the mens rea of intent or knowledge, but it absolves the defendant of criminal liability. The person still commits murder.

    Self-defense in Texas is a defense (not an affirmative defense, despite what your civil lawyer friends try to tell you) of confession and avoidance. The defendant admits to the relevant mens rea and actus reus, but, again, is absolved of criminal liability.

    I am not going to dig through the Penal Code right now, but administering a capital sentence and pulling the plug are presumably protected acts either by defense or affirmative defense.

    In sum, yes, in your examples, murder has been committed, but there is a legal excuse for commission.

    Thanks for saving me the trouble, sometimes my compulsion to argue with idiots on the internet gets the best of me

    • Like 1
  6. 8 hours ago, JBJ said:

    I agree with much of the quoted portion, but your summary is, again, ignoring what mens rea is.

    "Intentionally caused the death of a person" is not murder; it's only the actus reus.

    That is incorrect.

    The act is causing the death of another (actus reus).

    The culpable mental state is intentionally (mens rea).

     

    • Like 1
  7. On 9/8/2018 at 3:32 PM, 4th and 5 said:

    Homicide is murder (intentionally or knowingly) manslaughter (recklessly) or criminally negligent homicide (criminal negligence).

    intentional and knowing mean conscious desire to bring about the result, or knew that the result would occur, generally referred to a specific intent. 

    Recklessness and criminal negligence are general intents where the actor did not intend to cause the harm. Recklessness is the conscious awareness of a substantial and unjustifiable risk and proceeding anyway. Criminal negligence is different in the failure to perceive the substantial and unjustifiable risk is a substantial deviation from how a reasonable person would act. Like shooting a gun in a crowded area. No intent to kill anyone, but the act is a sufficient mens rea, or culpability, to be a crime.

    Her conduct, in shooting him was an intentional act. She shot him with the specific intent to kill. That’s murder under the Texas Penal Code.

    She could assert at least two defenses to her conduct. 

    One is mistake of fact, if her belief that he was an intruder in her home was reasonable under the circumstances.

    The other is self defense, but again, that requires a reasonable belief that deadly force was necessary under the circumstances as she reasonably believed them to be at the time, not in hindsight. I question that she could avail herself of each element of the statute that would get her the presumption and jury instruction for “degree of force used presumed to be reasonable” and “no duty to retreat.”

    I don’t see a jury buying the justification of self defense. They might bite on a mistake of fact defense but she could still be convicted of any lesser included offense of murder, to wit: manslaugher or criminally negligent homicide. 

    Let me quote myself from page 5.

    She intentionally caused the death of a person, a first degree felony murder, based upon a mistaken belief that deadly force was justified.

  8. 2 hours ago, Red Six said:

    They usually try to hit you with the most serious charge, then use that as leverage in negotiations.

    The facts here support murder. A Dallas city councilman tweeted that they tried to get a manslaughter warrant from a Dallas judge (unclear as to whether municipal or county), but the judge wouldn't sign for that charge; the judge said that the offense was murder.

    I'm wondering if the Rangers didn't judge shop to Mesquite or Seagoville, and that's why she ended up in the Kaufman County jail.

    It is a murder for the reasons I stated above, a specific intent to cause his death with a mistaken belief of the justification of self defense.

    Once there is a warrant she can turn herself in anywhere. She chose the Kaufman county jail.

     

     

  9. 25 minutes ago, Red Six said:

    If the roles were reversed -- black man entering the wrong apartment, shooting a white cop sitting around in her underwear -- no doubt he would be held with no bond for capital murder right now.

    Capital murder requires intentional or knowing murder during the commission of, e.g., burglary.

    Burglary under S 30.02(a)(3) requires entry without the effective consent of the owner and, during entry, commission of a felony.

    Brief Googling indicates that CCA says the murder can be the predicate felony for the burglary.

    Did she enter without effective consent? He opened the door. He didn't say she could come in. If any part of her entered that habitation, she committed burglary when she shot and killed him.

    Did she commit intentional or knowing murder? Murder is a conduct-, not result-based, offense. She intentionally or knowingly pointed that gun at him and shot him. Her conduct directly resulted in his death.

    Maybe the delay in seeking the warrant is to ensure they have capital murder locked down.

    Right?

    Right?

    It was intentionally causing the death of another, that was her specific intent, which is murder under the Penal code.

    Her belief that deadly force was justified under the circumstances was wrong.

    If she entered, It could theoretically be a burglary because although she did not enter with the intent to commit a felony or theft, your typical burglary....she did actually commit a felony or assault, which makes it a burglary under 30.02(a)(3) which has an enhanced penalty of a first degree felony under subsection (d). And I suppose it could be the predicate felony for capital murder.

    Again, she still has a mistake of fact defense. Doubt it will work, bit it could. You don’t see it much in criminal cases.

    Actually, these types of trying to enter the wrong apartment or house cases aren’t all that uncommon. I see them a few times per year. Most of which result in my clients almost getting their ticket punched. Almost exclusively intoxicated.

    Never imagined it could happen like this. But I can see how it did.

    I think she will do down for Manslaughter. Criminally Negligent Homicide is only a state jail felony, I don’t think a jury will let her off for that.

    • Like 1
  10. Homicide is murder (intentionally or knowingly) manslaughter (recklessly) or criminally negligent homicide (criminal negligence).

    intentional and knowing mean conscious desire to bring about the result, or knew that the result would occur, generally referred to a specific intent. 

    Recklessness and criminal negligence are general intents where the actor did not intend to cause the harm. Recklessness is the conscious awareness of a substantial and unjustifiable risk and proceeding anyway. Criminal negligence is different in the failure to perceive the substantial and unjustifiable risk is a substantial deviation from how a reasonable person would act. Like shooting a gun in a crowded area. No intent to kill anyone, but the act is a sufficient mens rea, or culpability, to be a crime.

    Her conduct, in shooting him was an intentional act. She shot him with the specific intent to kill. That’s murder under the Texas Penal Code.

    She could assert at least two defenses to her conduct. 

    One is mistake of fact, if her belief that he was an intruder in her home was reasonable under the circumstances.

    The other is self defense, but again, that requires a reasonable belief that deadly force was necessary under the circumstances as she reasonably believed them to be at the time, not in hindsight. I question that she could avail herself of each element of the statute that would get her the presumption and jury instruction for “degree of force used presumed to be reasonable” and “no duty to retreat.”

    I don’t see a jury buying the justification of self defense. They might bite on a mistake of fact defense but she could still be convicted of any lesser included offense of murder, to wit: manslaugher or criminally negligent homicide. 

    • Like 1
  11. She wasn’t drunk or on drugs. PDs have policies against drinking in uniforms. She just got off a shift. And a full one at that. 

    She’s a woman who got lost in her own apartment building. How hard is that to believe?

    She can’t work her electronic key. How hard is that to believe? Surprised she even had her keys.

    The door won’t open, clearly, this is the door’s fault, or her husband’s fault.

    So brother Botham is in his crib, studying some Bible passages, when there is a commotion at his door.

    He goes to the door in inquire, and she-cop-who-cannot-be-wrong-but-is-deathly-scared-of-African-American-males pops a cap,in his ass.

     

     

     

    • Like 2
×
×
  • Create New...