Murder? No way.

why is the first move to shoot a man eating ice cream?

Apparently he made an aggressive move.

Murder? No way.

This is all of us wearing our shocked faces. Really.

I'm only surprised you don't want her to get a public service award for her bravery in shooting an unarmed man eating vanilla ice cream in his own apartment.

How do you justify a charge of murder?

By voting for a murder conviction if I am a seated juror in the case.

Like having an asshole, everyone has an opinion. In this matter, the 12 jurors are the only thing that counts. And every other asshole just has an opinion.

By voting for a murder conviction if I am a seated juror in the case.

Fine. Let the prosecutor charge murder and if the jury finds that the charge doesn't fit the crime they acquit.

Fair enough?

Fine. Let the prosecutor charge murder and if the jury finds that the charge doesn't fit the crime they acquit.

Yeah, I think you didn't read the entire article.

The last sentence: "The jury will have to decide whether Guyger committed murder, a lesser offense such as manslaughter or criminally negligent homicide, or no crime at all."

I would think an experienced jury foreman like yourself would have noticed that little detail.

Besides: Texas jury, Texas rules. Whether anyone else likes it or not. If you don't like it, move there and get the laws changed. Isn't that the advice you often hand out here at LF?

I would think an experienced jury foreman like yourself would have noticed that little detail.

I did. And I'm saying that if you're so set on a murder charge then that's all you get.

Are you now saying that it might not be murder? Getting a little worried? Looking for an escape route? Want to add jaywalking to the list so you can convict on something?

Are you now saying that it might not be murder? Getting a little worried? Looking for an escape route? Want to add jaywalking to the list so you can convict on something?

Again: Texas jury, Texas laws. No matter how much you freak out about it, post furiously on Twitter, try to rile up a Fakebook lynch mob, etc.

Perhaps a photo will clarify it.

That's Texas, giving you their famous "I don't give two fucks what you think of our laws and courts" look.

I did. And I'm saying that if you're so set on a murder charge then that's all you get.

Looks like you got your wish. A murder conviction.

Apparently he made an aggressive move.

Apparently not necessary.

How do you justify a charge of murder?

I actually pondered the same question. I seems Texas law may be a tad different than we are used to.

https://statelaws.findlaw.com/texas-law/texas-second-degree-murder-laws.html

Texas Murder Statute (Penal Code, Title 5, Chapter 19)

Elements of Second Degree Murder

Texas does not officially use the term "second degree murder" which can sometimes be a little bit confusing. Instead, the equivalent in Texas is known as just "murder," which is a first degree felony. To convict a defendant of murder, prosecutors must be able to prove beyond a reasonable doubt that:

• The defendant intentionally and knowingly caused the death of another person;
• The defendant intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual; or
• The defendant committed or attempted to commit a felony (other than manslaughter) and in performing that felony, committed an act that was clearly dangerous to human life and this act caused the death of an individual.

The jury found the defendant intentionally and knowingly caused the death of another person.

She pulled her gun, aimed it, fired and hit her target. She intended to shoot her victim. It was not an accident or self-defense.

The defendant intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual

She pulled her gun, aimed it, fired and caused the death of another. In shooting, it was her intent to seriously injure or kill another. (As distinguished from entering the room with the intent to shoot anyone.)

Murder in Texas is distinct from Capital Murder.

Manslaughter in Texas is recklessly causing the death of another.

The jury found her behavior was intentional, not reckless.

https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm

PENAL CODE

TITLE 5. OFFENSES AGAINST THE PERSON

CHAPTER 19. CRIMINAL HOMICIDE

Sec. 19.01. TYPES OF CRIMINAL HOMICIDE. (a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.

(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, Sec. 1, eff. Jan. 1, 1974; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

- - - - - - - - - -

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) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

(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.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, Sec. 1, eff. Jan. 1, 1974; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

- - - - - - - - - -

Sec. 19.03. CAPITAL MURDER. (a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and:

(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;

(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat under Section 22.07(a)(1), (3), (4), (5), or (6);

(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration;

(4) the person commits the murder while escaping or attempting to escape from a penal institution;

(5) the person, while incarcerated in a penal institution, murders another:

(A) who is employed in the operation of the penal institution; or

(B) with the intent to establish, maintain, or participate in a combination or in the profits of a combination;

(6) the person:

(A) while incarcerated for an offense under this section or Section 19.02, murders another; or

(B) while serving a sentence of life imprisonment or a term of 99 years for an offense under Section 20.04, 22.021, or 29.03, murders another;

(7) the person murders more than one person:

(A) during the same criminal transaction; or

(B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct;

(8) the person murders an individual under 10 years of age;

(9) the person murders an individual 10 years of age or older but younger than 15 years of age; or

(10) the person murders another person in retaliation for or on account of the service or status of the other person as a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court.

(b) An offense under this section is a capital felony.

(c) If the jury or, when authorized by law, the judge does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense.

Added by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 5317, ch. 977, Sec. 6, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 44, Sec. 1, eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 652, Sec. 13, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 715, Sec. 1, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 887, Sec. 1, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 388, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 428 (S.B. 1791), Sec. 1, eff. September 1, 2005.

Acts 2011, 82nd Leg., R.S., Ch. 1209 (S.B. 377), Sec. 1, eff. September 1, 2011.

Acts 2019, 86th Leg., R.S., Ch. 1214 (S.B. 719), Sec. 2, eff. September 1, 2019.

- - - - - - - - - -

Sec. 19.04. MANSLAUGHTER. (a) A person commits an offense if he recklessly causes the death of an individual.

(b) An offense under this section is a felony of the second degree.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 19.04 by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 307, Sec. 1, eff. Sept. 1, 1987. Renumbered from Penal Code Sec. 19.05 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

- - - - - - - - - -

Sec. 19.05. CRIMINALLY NEGLIGENT HOMICIDE. (a) A person commits an offense if he causes the death of an individual by criminal negligence.

(b) An offense under this section is a state jail felony.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 19.06 by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 19.07 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

- - - - - - - - - -

Sec. 19.06. APPLICABILITY TO CERTAIN CONDUCT. This chapter does not apply to the death of an unborn child if the conduct charged is:

(1) conduct committed by the mother of the unborn child;

(2) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure;

(3) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102, Family Code; or

(4) the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law.

Added by Acts 2003, 78th Leg., ch. 822, Sec. 2.02, eff. Sept. 1, 2003.

Murder in Texas is distinct from Capital Murder.

Manslaughter in Texas is recklessly causing the death of another.

The jury found her behavior was intentional, not reckless.

You are right to point this out and you zeroed in on the key distinction, it seems.

I can't recall when it was that I finally understood that all the states could call these various homicides by different names and that the same name could mean rather different things in various states. But I'm sure I was over 40 before I grasped that very basic fact. And I think that is true of most people.

I've read before that, back in the Fifties and Sixties, there was a joint effort by Texas and California to harmonize their legal terms and legal standards in criminal justice. And it did work to some extent, at least until Republicans became unelectable in California. Those two states did influence some others, especially the western states, to adopt some of the same terminology and standards.

You probably recall the Zimmerman case in Florida. There were a lot of people who got angry over the charges and how the case was conducted just because Florida has a few different names for things and they have more self-defense justification under their laws. But people were outraged over it, like Florida was issuing hunting licenses to shoot young black dudes or something. All because we have different legal terms from state to state and people get confused about it.

Looks like you got your wish. A murder conviction.

Here's what the cop worshipers are posting at the link Gatlin provided on the thread where he cheers for Facebook heavy-handedly censoring sites he disapproves of.

Parsons never was a champion of freedom of speech.

This is just another example of the war on police. It was obviously an accident there was no malicious or premeditated intent here. Hatred for police has gone to far by the liberal socialist left. I hope this gets over returned on appeal!!!!

***

I think we all knew a guilty verdict was coming, and it wasn't based on the facts of the case, but society's outrage from black lives matter supporters, and the media's spin on on all reporting to get more clicks.

***

https://twitter.com/NBCNews/status/1179077952480387073

NBC News
Verified account @NBCNews

Botham Jean family attorney Ben Crump after the conviction of Amber Guyger:

"This verdict is for Trayvon Martin, it's for Michael Brown, it's for Sandra Bland, it's for Tamir Rice, it's for Eric Garner ... for so many unarmed black and brown human beings all across America."

Parsons never was a champion of freedom of speech.

He would insist that he is. He is a great champion of honesty as well as he just demonstrated with that extensive bit of nested list-making which took him a bit of time to construct in HTML.

If you inspect his raw HTML source, you'll notice he's learned all my little HTML formatting tricks and is now experimenting with a few new ones of his own.     : )

I'm not criticizing it. Trying to be more effective, trying to make a more winning presentation is not a Bad Thing. I don't carp at efforts at self-improvement or ambition to do something better.

Botham Jean family attorney Ben Crump after the conviction of Amber Guyger:

Just an interstate race hustler, promoting himself in hopes of getting his cut from future lawsuits against police. This is free advertising for him, something forbidden to attorneys in many states or considered unethical by any bar association.

The downside of the guilty verdict is that some bottom-feeders like Crump get more attention and, likely, more money out of it.

This is free advertising for him, something forbidden to attorneys in many states or considered unethical by any bar association.

I see a lot of ads for lawyers in Michigan - Detroit Tigers, Pistons and Red Wings are sponsored the Sam Bernstein Law Firm.

On October 1, 2009, the network (FOX Sports Detroit) unveiled a new all-digital high definition- capable studio in its Southfield headquarters dubbed the "Call Sam Studio", named after its sponsor, the Sam Bernstein Law Firm. It serves as the production base of the pre-game/post-game shows Tigers Live, Pistons Live and Red Wings Live.

I've also seen ads for Geoffrey Fieger. Interesting factoid - His brother Doug is part of the band "The Knack"

I suppose each state has their own laws, but what about those class action suit spots against Monsanto, asbestos and baby powder, do they count as advertising? I've seen those in a lot of different states.

I suppose each state has their own laws, but what about those class action suit spots against Monsanto, asbestos and baby powder, do they count as advertising? I've seen those in a lot of different states.

50 states, fifty legislatures, 50 bar associations, 50 ethical standards.

And TV signals and cable subscriptions do reach across state lines.

I'm afraid it's a crap shoot. We are still operating under very outdated legal and ethical standards. And the scummiest lawyers love that because it helps them skirt the laws.

We are still operating under very outdated legal and ethical standards.

Well, that's true. On another semi-related subject, prescription drug ads were not allowed on TV until 1983.

Now you can't go 10 minutes without seeing one.

Has that made things better or worse?

Has that made things better or worse?

Depends. Maybe you're a patient unaware of a new diabetes drug that works better for you and has fewer side effects and your idiot doctor never bothers to discuss it with you or doesn't even know about it. The ad prods you to read about it and get your doctor to prescribe it. And you live a few years longer as a result. So that's All Good.

But maybe you also saw another ad, right after the good diabetes drug ad that extended your life. It was for a toenail fungus drug and you are tired of ugly toenails when wearing sandals or flipflops in summer. So you read up but you just skim over all the warnings.

Terbinafine Terbinafine is a tablet medication that belongs to a class of drugs called antifungal medications. Drugs.com says that this medication is specifically used to treat fungal infections of the foot, groin, scalp, toenails and fingernails. Some of terbinafine's common side effects include stomach pain, muscle aches and stuffy nose. Some of its less common side effects include joint pain, headache, sneezing, sore throat and diarrhea. It is important to tell a physician whenever terbinafine leads to these effects. Suffering from kidney or liver disease, blood problems and skin disorders may require a decrease in terbinafine dosage. A patient should take terbinafine daily as a doctor prescribes. Itraconazole Itraconazole is another antifungal medication, in either tablet or capsule form, that destroys fungus of the lungs, toenails, fingernails, throat and mouth. Drugs.com says itraconazole's less serious side effects include skin rash, headache, diarrhea, stomach pain and runny nose. Sometimes, itraconazole can lead to such serious side effects as shortness of breath, pain with urination, fever, weight gain and yellowing of the skin or eyes. It is important to call a doctor when itraconazole leads to these effects. Having cystic fibrosis, heart disease, liver or kidney disease and a history of stroke may require a decrease in itraconazole dosage. A patient should take itraconazole daily as a doctor prescribes. Ciclopirox Ciclopirox is an antifungal topical solution medication that stops nail fungus growth. MedlinePlus says that ciclopirox's less concerning side effects include redness at the application site. Some of ciclopirox's serious side effects include pain at the affected nail site, ingrown nails, and itching, blistering or oozing at the application site. It is important to call a physician when ciclopirox leads to these effects. Taking such medications as budesonide, flunisolide, ketoconazole or fluticasone may require a decrease in ciclopirox dosage. A patient should apply ciclopirox daily to the affected area, as a doctor prescribes.

Better or worse? I don't think anyone knows. Even if something kills 90% of people taking it, you might be one of the 10% whose life a drug will save.

It's all a bit of a crapshoot. Medicine is still more art and luck than science.

I would forbid all drug advertising if it was up to me. And I would regulate all websites to prevent inaccurate or incomplete presentation of facts about particular drugs. I would instead make the info available but only complete info and only from a federal .gov website run by FDA. And I wouldn't allow any Big Pharma hacks to continue revolving in and out of government and Big Pharma sinecures as we've done for the last 20 years. But people like me (and you) are exactly the kind of people that the corporate PACs and lobbyists exist to keep out of Congress.

She pulled her gun, aimed it, fired and hit her target. She intended to shoot her victim. It was not an accident or self-defense.

So what she did (and why she did it) is no different than if the victim was sitting on a park bench at high noon, eating his lunch. You see no difference between the two scenarios.

I'm confused.

Looks like you got your wish. A murder conviction.

Ah. Now you accept my challenge. After the conviction. Well, you always were a Monday morning quarterback.

She pulled her gun, aimed it, fired and hit her target. She intended to shoot her victim. It was not an accident or self-defense.

So what she did (and why she did it) is no different than if the victim was sitting on a park bench at high noon, eating his lunch. You see no difference between the two scenarios.

The proper analysis is to apply the law to the facts.

Are you saying that in your analysis of the facts, you found the victim was sitting on a park bench at high noon?

I did not find, and neither opined, nor attempted to opine, anything about such a scenario.

Do you imply that when she aimed her weapon and shot, it was not an intentional act?

Did she just fire into the air and misfortune caused the bullet to strike some random dude?

Did she accidentally pull the trigger?

The bullet striking the victim was the intended result of her act. Her disorientation is not justification for her act, but a mitigating factor for sentencing. Her prior anti-black racial comments, already entered in the sentencing phase, are an aggravating factor.

Intent is defined in the Texas Penal Code. For this Texas matter, that is the only definition that matters.

https://codes.findlaw.com/tx/penal-code/penal-sect-6-03.html

Texas Penal Code § 6.03. Definitions of Culpable Mental States

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Ah. Now you accept my challenge. After the conviction. Well, you always were a Monday morning quarterback.

I'm so glad you appreciated my gloating. It makes all those keystrokes worthwhile.

Did they have toenail fungus? Are you saying this is why she shot him?

In Texas, studies show that it's better to shoot a Negro for eating vanilla ice cream than to just shoot him for toenail fungus.

Her prior anti-black racial comments, already entered in the sentencing phase, are an aggravating factor.

I apparently missed any reporting on those remarks. Maybe misterwhite and I aren't quite as focused as you are, nolu.

Of course, we can't assume those remarks played any role in the jury's murder verdict if they only surfaced (or were allowed by the judge) during the start of the sentencing phase.

As always, the minutiae really start to add up. It's never as simple as the early reporting on a case would seem.

Are you saying that in your analysis of the facts, you found the victim was sitting on a park bench at high noon?

Nope. I'm saying your criteria for murder covers both scenarios equally.

You don't allow for the fact that she was under diminished capacity, that she believed the individual was an intruder in her apartment, that because she was a cop he may have been lying in wait to kill her, and that any movement by him could have been interpreted as an attack.

In Texas, studies show that it's better to shoot a Negro for eating vanilla ice cream than to just shoot him for toenail fungus.

That wasn't a study. It was a poll.

Her prior anti-black racial comments, already entered in the sentencing phase, are an aggravating factor.

Did you read them? That's a real stretch to call them "racist".

Intent is defined in the Texas Penal Code.

Screw intent. Of course she intended to kill him. All persons who are defending themselves intend the same.

"He came at me with a machete so I shot him."
"Did you intend to kill him?"
"Fuckin' a right!"
Your honor, I charge murder due to intent."

Intent is defined in the Texas Penal Code.

Which is why we were told in our concealed carry class that if you do shoot someone while defending yourself, you limit your response to "I did what I had to do to stop the threat". Period. Nothing else.

You don't say "I shot him", "I killed him", "I meant to kill him", "It was an accident", "I didn't mean to" -- none of that crap.

You don't allow for the fact that she was under diminished capacity....

You don't allow for the fact that diminished capacity is not recognized as a defense by the state of Texas.

Which is why we were told in our concealed carry class that if you do shoot someone while defending yourself, you limit your response to "I did what I had to do to stop the threat". Period. Nothing else.

Don't know, care less.

We are discussing a case in Texas under Texas law.

I'm saying your criteria for murder covers both scenarios equally.

It's not my criteria, it is Texas state law. As you admit the stated Texas law covers the facts of this case, other hypothetical scenarios are irrelevant to guilt or innocence of Amber Guyger.

Which is why we were told in our concealed carry class that if you do shoot someone while defending yourself, you limit your response to "I did what I had to do to stop the threat". Period. Nothing else.

Exactly correct. You shoot to stop the intruder/aggressor. If that requires shooting enough vital organs or a head shot, that is what you do. If shooting them enough times results in their death, that is not the same thing as a conscious intent to inflict death from the very first shot you fire at them.

I think the commonly heard rationales that you should never shoot unless you are shooting with the intent to kill are wrongheaded. I understand why they say it but I simply don't agree. And I think it is a bad self-defense posture for NRA to take over the long term.

If you shoot someone and they are no longer capable of harming you, then if you keep shooting you are shooting with conscious intent to kill.

I favor shooting groups of bullets, a burst of 2 or 3 or 4 shots, then re-evaluating the threat.

So, for instance, in a criminal case, as a juror I would take a dim view of a person engaged in self-defense if they empty a 15+ round 9mm+ magazine at very close range into the torso and/or head of an attacker. That kind of thing gets closer to an execution defense than to self-defense. Maybe someone with a high blood level of meth or PCP who just won't stop after you've blown big holes in their torso. Of course, those cases are actually quite rare in any state. Using self-defense to justify a shot (or two or three) is rather different from firing 15+ shots into an attacker in 3-4 seconds (which is much closer to a demonstrable intent to kill).

I believe in a strong self-defense - including Castle Doctrine and Stand Your Ground - but I don't believe juries are obliged to acquiesce to an execution defense.

I realize that a lot of RKBA folk would object to this. Like I care.

You don't allow for the fact that diminished capacity is not recognized as a defense by the state of Texas.

It raises a good question of whether diminished capacity should ever be allowed as a defense. I think it shouldn't. If you possess and use a gun with deadly consequences, you take full liability and criminal penalty on yourself. You shouldn't allow people to be responsible for using deadly force and then let them defend themselves by claiming they weren't competent or were suffering some kind of diminished capacity. Gunowners have to be responsible for what they do.

It raises a good question of whether diminished capacity should ever be allowed as a defense.

Below is a Texas court opinion detailing the facts of the case, providing a doctor's testimony, and making crystal clear how Texas views intent to kill and diminished capacity. I'll provide the whole thing to provide the full context. Texas is different.

Diminished capacity is precluded in the guilt phase of trial, but may come in at the penalty phase.

https://law.justia.com/cases/texas/court-of-criminal-appeals/2005/pd-1655-03-6.html

Jackson v. State

160 S.W.3d 568 (2005)

Kenneth Wayne JACKSON, Appellant v. The STATE of Texas.

No. PD-1655-03.

Court of Criminal Appeals of Texas.

April 13, 2005.

*569 Lydia M.V. Brandt, Richardson, for appellant.

Kim Schaefer, Asst. DA, Dallas, Matthew Paul, State's Attorney, Austin, for state.

MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and PRICE, JOHNSON, HOLCOMB, and COCHRAN, JJ, joined.

Appellant was convicted of murder and sentenced to sixty years' imprisonment. Texas Penal Code Sec. 19.02(b)(1). Appellant appealed the trial court's limitation of his use of mental-illness testimony. The court of appeals affirmed the conviction. Jackson v. State, 115 S.W.3d 326 (Tex. App.-Dallas 2003). We granted review to determine whether the doctrine of diminished capacity exists in the jurisprudence of Texas. We will affirm.

FACTS

Appellant and his older brother, Eric, arrived home between 4:00 and 5:00 in the morning after an evening out with friends. Their sister, Tina, heard her brothers come in and went into the living room to talk to them. She testified that Appellant wanted to wake up his mother, but Eric would not allow him to go into her bedroom. Eric blocked the door to the bedroom and restrained Appellant from entering. The brothers began to fight, pushing each other, hitting each other and pulling each other's hair. The fighting awakened their mother, and she came into the living room and told Appellant and his brother to go to bed. Tina testified that they continued to argue, and Eric asked her to call the police because Appellant was becoming violent and would not stop fighting. She also stated that Appellant threatened his brother and told him that he was going to get him if he went to sleep. Tina did not call the police, but the fighting eventually calmed down. Appellant went to sleep on the couch in the living room, and Eric went to sleep in their mother's bedroom. Several hours later, Tina drove their mother to work. While his mother and sister were out of the house, Appellant went into the kitchen, got a hammer, entered his mother's bedroom where Eric was sleeping, and hit him in the head with the hammer.[1] Appellant returned the hammer *570 to the cabinet in the kitchen and then called 911. The first police officer to arrive testified that Appellant told them he didn't know what happened, but he thought his brother had been shot.

At trial, Appellant presented testimony regarding his mental illness. His mother and sister testified that Appellant had "spells" and exhibited strange behaviors including talking to himself, hiding food in his bedroom, and hanging clothes on the walls and windows rather than in the closet. His mother testified that doctors had told her that Appellant was capable of killing, and had instructed her to call the police whenever Appellant acted violently toward his brother. When the family called the police, Appellant was usually released the next day, but on one occasion he was admitted to Timberlawn mental hospital after he pulled a knife on his brother. Tina testified that Appellant had been diagnosed as being a paranoid schizophrenic. She stated, "I don't think Kenneth thinks about the things that he is doing before he does them. I don't think he thinks about it. I don't think he even knows what the circumstances would be. Sometimes Kenneth is he's fine, and the next minute, it's like he's another person." She also stated, "I don't think that Kenneth meant to kill him. I think he just wanted to hurt him, because, you know, he was they had been fighting."

The defense called forensic psychiatrist Dr. James Grigson to testify. The State requested a hearing under Rule of Evidence 705(b), to examine the facts upon which the doctor based his opinions. The trial court denied the State's request, but limited the mental-illness testimony, stating that it would not allow an insanity defense to be raised at that late date without notice to the State. The following is the testimony of the defense psychiatrist regarding Appellant's history of mental illness.

[Defense] Would you please explain to the ladies and gentlemen of the Jury your findings from the tell us a little bit about his history, some of the findings thatwhere he's been located, et cetera?

[Dr. Grigson] He's been seen at Parkland emergency room, and also in 1998, he was hospitalized at Timberlawn Psychiatric Hospital here in Dallas for about a week. In his history it stated that he became mentally ill somewhere around about age 14. He has been diagnosed as schizophrenic and as bipolar disorder, both psychotic episodes.

[Defense] Explain to the ladies and gentlemen of the jury what you mean by schizophrenic?

[Dr. Grigson] Schizophrenia is one of our more severe mental illnesses. The individual has gross impairment in terms of interpersonal relationships, the way they get along with other people, and gross impairment in terms of reality testing. They misperceive what's going on around them.

[Defense] What about paranoia?

[Dr. Grigson] Paranoid is a descriptive term of a type of schizophrenia where the individual that is suffering from paranoid schizophrenia usually believes that people are plotting against them or trying to do something to them, trying to harm them in some way.

[Defense] What about bipolar?

[Dr. Grigson] Bipolar is another severe mental illness. The individuals may only have manic states, or they may only have depressive states, or they *571 may have alternating manic and depressive states.

[Defense] What about mental retardation, sir?

[Dr. Grigson] Mental retardation is where the individual has an IQ below 70.

[Defense] Okay. Was there anyin his history or your examination, was there any mental retardation that you can recall?

[Dr. Grigson] No, sir, there's not any.

[Defense] Pass the witness, your honor.

[CROSS EXAMINATION]

[State] Dr. Grigson, you've had an opportunity to review his various medical files?

[Dr. Grigson] I did.

[State] And did you notice that he in somein his files and on occasions, he hadthe Defendant, Mr. Jackson, had a tendency to become violent?

[Dr. Grigson] He has.

[State] With his brother or with his dad or other family members?

[Dr. Grigson] That's correct.

[State] And, in fact, that's the wayis that a way that some people with schizophrenia or have these psychotic episodes, that's how it manifests itself where they actually become violent?

[Dr. Grigson] It can happen in individuals with schizophrenia or bipolar, or it can happen in an individual that has neither.

[State] And they can become really violent. I mean, on some occasions he was known to have pulled a knife on his brother, or hit his brother, or hit his dad with a bat?

[Dr. Grigson] That's correct.

[State] And you say that you analyzed him on May 15, what would be ten days after the offense date?

[Dr. Grigson] Yes, sir, I did.

[State] And it's your opinion that he was competent?

[Dr. Grigson] Right. He had sufficient present mental ability to consult with his attorney with a reasonable degree of rational understanding, and he had a rational, as well as a factual understanding regarding the proceedings against him. Therefore, it was my opinion that he was competent at that time to stand trial.

[State] And he was still competent in June when you interviewed him?

[Dr. Grigson] Yes, sir, he was.

[State] And that's the last time that you talked to him or interviewed him?

[Dr. Grigson] Yes, sir, it is.

[State] And I mean, you're not here telling the Jury that he's insane or didn't know what he was doing?

[Dr. Grigson] No. He was sane at the time. He was aware of what he was doing.

[State] And he knew the difference between right and wrong?

[Dr. Grigson] Yes, sir, he did.

[State] Okay. So he washe was sane, and he was competent in your opinion?

[Dr. Grigson] Yes, he was.

[State] Okay. That's all I have.

In closing argument, the defense attempted to argue that the jury should find that Appellant lacked the mental capacity to intentionally or knowingly cause bodily injury. The State objected to the improper argument, and the objection was sustained. The jury found Appellant guilty, and he was sentenced to sixty years' imprisonment.

*572 COURT OF APPEALS

Appellant appealed, arguing in part that his due process rights were violated because the jury was not allowed to consider evidence of diminished capacity to negate the element of mens rea. Appellant relies on an exception to the rule set out in Cowles v. State, 510 S.W.2d 608 (Tex.Crim. App.1974), that evidence of mental illness short of the inability to distinguish right from wrong is not admissible at the guilt stage of the trial.[2] Although Cowles involved a non-specific-intent crime, the exception stated that such evidence may be admissible when specific intent is an element of the offense. The court of appeals cited Wagner v. State, 687 S.W.2d 303 (Tex.Crim.App.1985), in which we referred to the exception from Cowles as "dicta" and stated that lack of impulse control does not diminish criminal responsibility. Id. at 311. The court of appeals concluded that, because there is no diminished-capacity defense in Texas, the trial court did not err in failing to allow the jury to consider appellant's mental-illness evidence for the purpose of negating mens rea. Jackson v. State, 115 S.W.3d at 328.

Appellant filed a petition for discretionary review stating that the holding of the court of appeals conflicts with our holdings in Penry v. State, 903 S.W.2d 715 (Tex.Crim.App.1995), Cowles, and Wagner. Appellant reasons that past opinions have confused the doctrine of "diminished capacity" with the affirmative defense of "diminished responsibility," and that diminished capacity is recognized in Texas. Finally, Appellant argues that the U.S. and Texas Constitutions require that a defendant be allowed to introduce evidence of diminished capacity. We granted review to determine whether the doctrine of diminished capacity exists in the jurisprudence of Texas.

ANALYSIS

This case does not really present us with a reason to determine whether the doctrine of diminished capacity exists in Texas because the evidence of mental illness in this case does not negate mens rea. Rather, the evidence presented an excuse for the crime, i.e., that Appellant killed his brother because he was so paranoid that he thought his brother was out to get him. In fact, this evidence makes it even more apparent that Appellant intended to cause serious bodily injury or death to his brother. The evidence of appellant's paranoia simply provides a motive for the intentional act. The evidence presented was the type of excuse-based evidence that would be raised as an affirmative defense. As even Appellant acknowledges, Texas law does not recognize a lesser form of the insanity affirmative defense. However, we will address Appellant's claims.

First, we disagree with Appellant's contention that the opinion of the court of appeals conflicts with our opinion in Wagner. As in the case before us, Wagner did not raise an insanity defense. He did, however, want to admit evidence of a physical injury which may have caused impaired mental function and lack of impulse control. We stated that the evidence may have been admissible if it showed that *573 Wagner acted with sudden passion arising from an adequate cause. Wagner, 687 S.W.2d at 311. However, because it did not, we held that admitting evidence of impaired mental function at the guilt phase of the trial would have confused the jury and therefore, it was not admissible. Id. at 312. We note that this has changed because sudden passion is now a punishment issue. As a result, even the part of Wagner which states that the doctrine of diminished capacity might require the admission of evidence of sudden passion arising from an adequate cause now would apply only to the punishment phase of trial and does not require evidence of mental illness falling short of insanity to be admitted at the guilt phase. Under Penal Code section 19.02(d), sudden passion and adequate cause are raised at the punishment stage of a trial to reduce the offense to a second-degree felony.[3]

We additionally disagree with the Appellant that the holding of the court of appeals conflicts with our holding in Penry. As in the case before us, Penry presented evidence of his mental impairments at trial and emphasized this evidence in closing arguments. Penry argued that the charge to the jury should have included an instruction to consider abnormal physical or mental conditions when deciding the issue of intent. Penry, 903 S.W.2d at 753. We stated that there was no reason to conclude that the jury failed to consider Penry's proffered evidence and held that "[a] specific instruction calling attention to the evidence on appellant's impaired mental abilities was unnecessary, and might have inappropriately vested this evidence with a disproportionate legal significance in the eyes of the jury." Id. at 754. Judge Maloney wrote a concurring opinion agreeing that the instruction requested by Penry would have been an improper comment on the weight of the evidence and was properly denied. He then explained the difference between the diminished-capacity affirmative defense and the presentation of evidence of diminished capacity to negate mens rea. Id. at 767-68. Stating that past cases have confused the issues, Judge Maloney emphasized that most state and federal courts allow defendants to present evidence of diminished capacity to negate mens rea. Id. at 768-69.

As for Appellant's argument that the 8th and 14th Amendment of the U.S. Constitution and the right to due course of law under the Texas Constitution require that a defendant be allowed to introduce evidence of diminished capacity, we again fail to see how this applies to the facts of this case. While barring, excluding, or prohibiting all evidence relating to a mental condition may violate a defendant's rights in certain cases, in the case before us, no such violation occurred.

DIMINISHED CAPACITY

The court of appeals correctly stated that Texas does not recognize diminished capacity as an affirmative defense i.e., a lesser form of the defense of insanity. In contrast, the diminished-capacity doctrine at issue in this case is simply a failure-of-proof defense in which the defendant claims that the State failed to prove that the defendant had the required state of mind at the time of the offense. To counter the State's evidence of the defendant's state of mind, the defense wishes to present evidence that the defendant has mental or physical impairments or abnormalities *574 and that some of his abilities are lessened in comparison to someone without such problems.

As with the other elements of the offense, relevant evidence may be presented which the jury may consider to negate the mens rea element. And, this evidence may sometimes include evidence of a defendant's history of mental illness. Texas Code of Criminal Procedure Art. 38.36(a) states that:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

However, this evidence must still meet the admissibility requirements of Rule of Evidence 403. In Smith v. State, 5 S.W.3d 673 (Tex.Crim.App.1999), we stated that evidence admissible under Article 38.36(a) may be excluded under Rule 403 if the probative value of the evidence "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex.R. Evid. 403. Even if evidence is relevant to an element of the offense, the trial court still must determine whether the evidence is admissible. Therefore, the trial judge has discretion to determine whether evidence of mental illness may be presented to negate the element of mens rea, or whether the evidence should be excluded on special grounds. If such evidence is admitted, the trial judge additionally has the discretion to determine whether the evidence supports a lesser-included-offense instruction.[4] In cases where such evidence was not admitted, it may be presented in the punishment phase in order to reduce the sentence assessed by the jury.

Appellant has not indicated what evidence, if any, he was prevented from introducing. He was able to present extensive evidence regarding his mental illness, his relationship with the victim, and his frame of mind on the night of the offense. There is no indication in the record that he was prevented from presenting any evidence at all. Therefore, we disagree with Appellant's assertion that he was prevented from introducing evidence relevant to whether he possessed the requisite mens rea. The State presented evidence that Appellant intentionally and knowingly caused the death of his brother. Appellant attempted to negate this evidence by introducing evidence of his history of mental illness through the testimony of his mother and sister, as well as the defense expert witness, Dr. Grigson. Appellant himself testified about his frame of mind on the night of the offense. The jury was able to hear all of this evidence, determine the weight of the evidence, and choose whether or not Appellant possessed the requisite mens rea to commit this offense. The jury believed that he did. The only thing Appellant was prevented from doing is arguing that the jury should find that he did not have the capacity to make the decision to intentionally and knowingly cause bodily injury and thus should find him not guilty. However, presenting evidence of mental illness does not then allow the defense to argue that the defendant is *575 absolutely incapable i.e., does not have the capacity to intentionally or knowingly perform an act. There is simply no defense recognized by Texas law stating that, due to the defendant's mental illness, he did not have the requisite mens rea at the time of the offense because he does not have the capacity, or is absolutely incapable of ever forming that frame of mind. There is no indication of an abuse of discretion in this case.

In conclusion, the judge may determine whether mental-illness evidence may be presented, and if it is presented, may determine whether it raises the issue of a lesser-included offense. Then, the jury may decide if the evidence lessens the defendant's culpability by finding him guilty of a lesser-included offense if presented at the guilt phase of trial or by assessing a lesser sentence at the punishment phase.

In this case, the judge admitted evidence of mental illness and decided that it did not raise the issue of a lesser-included offense. The jury considered the evidence and believed that the State proved each element of the offense beyond a reasonable doubt, including the mens rea of intentionally and knowingly. The judgment of the court of appeals is affirmed.

KEASLER, and HERVEY, JJ., concurred.

WOMACK, J., did not participate.

NOTES

[1] Appellant claimed he hit his brother only once but the medical examiner who performed the autopsy testified that the injuries to the skull indicated that the victim had been struck twice.

[2] Note that at the time of the Cowles decision, Texas used the M'Naghten Rule to determine the defense of insanity. The M'Naghten Rule asked whether the accused could distinguish right from wrong at the time of the offense. Texas Penal Code Section 8.01(a) now states that "It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong." This is also different from the insanity statute at the time of the Wagner decision, which included "or was incapable of conforming his conduct to the requirements of the law he allegedly violated."

[3] In Bradley v. State, 688 S.W.2d 847, 853 n. 13 (Tex.Crim.App.1985), we invited the legislature to make sudden passion either an affirmative defense or a punishment issue. By a 1994 Legislative amendment to Penal Code Sec. 19.02, they chose to make it a punishment issue.

[4] In the case before us, the court of appeals correctly held that, "There was no evidence here that if appellant was guilty, he was guilty only of a lesser mens rea. Thus, we conclude the trial court did not err in refusing to instruct on involuntary manslaughter and criminally negligent homicide." Jackson, 115 S.W.3d at 330-31.

Diminished capacity is precluded in the guilt phase of trial, but may come in at the penalty phase.

Letting the judge determine whether mental-illness evidence may be presented and also to instruct the jury on whether it justifies a lesser verdict from the jury seems to place the judge's thumb pretty heavily on the scales of justice. Perhaps that is exactly what is intended. And the legislature is free to change the laws if they choose.

Of course, states vary a lot on insanity defenses and all of them do have their own problems. Texas is far from unique in this.

She was obviously unaware of even the fact that that this wasn't her apartment. I'm saying it's a factor.

Making excuses for a murderer. Shame.

That's the point. This wasn't a murder. Negligent homicide, maybe.

Sounds premeditated with a lousy excuse to me.

That was my first thought. But there was ZERO evidence to support that theory.

"Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth."
-- Sherlock Holmes

The "diminished capacity" (or "diminished responsibility") I was referring to was the fact that she had worked a double shift and was tired and that she was distracted by her iPhone texting.

So she was engaged in malpractice as a police officer because of working while exhausted? Surely the exhaustion didn't suddenly overcome her during the time it took for her to drive home from the station.

And if she was so exhausted, was that why she was sending flirty sext messages to her partner just before the shooting?

She was obviously unaware of even the fact that that this wasn't her apartment. I'm saying it's a factor.

I think in a murder trial, you let your lawyer try just about anything to get you off. And the jury didn't buy it even if you do.

Surely the exhaustion didn't suddenly overcome her during the time it took for her to drive home from the station.

It must have.

"And if she was so exhausted, was that why she was sending flirty sext messages"

Do you have to be wide awake and full of energy to send flirty sext messages?

Let it go.

The "diminished capacity" (or "diminished responsibility") I was referring to was the fact that she had worked a double shift and was tired and that she was distracted by her iPhone texting.

She was obviously unaware of even the fact that that this wasn't her apartment. I'm saying it's a factor.

And Texas is saying that diminished capacity is not admissible in the guilt phase of any criminal trial in that state. That is for the penalty phase only.

It is a factor in sentencing.

Letting the judge determine whether mental-illness evidence may be presented and also to instruct the jury on whether it justifies a lesser verdict from the jury seems to place the judge's thumb pretty heavily on the scales of justice.

State law determines what may or may not be presented during the guilt phase of trials in Texas. State law does not recognize diminished capacity as a defense. It is the job of the judge to see that law is adhered to.

It's over.

So is 9/11. And yet ...

State law does not recognize diminished capacity as a defense.

Well, it is Texas and they seem to like the idea that even a crazy person has to be guilty of something.

It seems to me that with laws like this, there can never be a 'not guilty by reason of insanity or mental defect' in the state of Texas. In order to receive a 'diminished capacity' sentence, they have to be found guilty first, well, if a judge will even allow mental health records and police reports to be introduced in front of the jury.

Even for Texas, it does seem a little front-loaded and heavy-handed, doesn't it?

It seems to me that with laws like this, there can never be a 'not guilty by reason of insanity or mental defect' in the state of Texas.

Yes, there can be. They must meet the classic definition of insane. Following the M'Naghten Rule, basically that she did not know right from wrong, often expressed as she did not know the nature and quality of the act she was doing. In Texas, if she knew what he was doing was wrong, the rest can be sorted out in the punishment phase.

The insanity defense is rare and it almost never succeeds. I haven't ever seen a comprehensive lists of how many times it was attempted over the years and how few times it succeeded.