tvc184

I have hunted with a .223 AR.

Horrific, disgusting, sad….. I don’t know if there are words to describe how bad these murders were. Strangely, in the small city of Cleveland, TX, this is the second Capital Murder in the last two weeks.

The culpable mental states from highest (most culpable) to the lowest are: Intentionally Knowingly Recklessly Criminal Negligence Proof of a higher mental state automatically proves all lower states. So they can charge a person with intentionally committing crime but if there are lower available options in that particular, it doesn’t have to be proven. Some crimes show multiple mental states and if so, only the lowest has to be proven.

This situation came up a few months ago when the police arrested the Texas Longhorns basketball coach, Chris Beard for Assault/Impeding. The situation was really beaten up in another sports forum on how the coach was going to prison and blah blah blah. My first comments were, simply by reading the new stories, as released by the police and certainly not knowing exactly what happened, the charges would probably be dropped. It was likely a lawful arrest but could also likely be self defense. I also commented that had this been a regular citizen, the case would probably have been dropped within a week. Of course, being big news, it was drug out for several weeks. The coach claims that he is living girlfriend attacked him and he shoved her away. That was where I got into speculation…. If you reach up and shove someone away who’s attacking you and your open hand goes against the throat, it might momentarily gag the person or restrict breath. By law the choking statute says it is a crime, even if it is recklessly committed. So was he reckless? Probably. But remember that we have the right of self-defense even up to deadly force if needed. The right of self defense means that what you did is a crime, but it is justified under certain circumstances. If a person is attacking you, do you have the right to shove the person away? I would say yes. Soon after the arrest, the girlfriend made a public statement that she told the police that she did not wish to file charges and that she was the cause of it, attacking him. So now you have basically an admission by the woman that she came at him. Is he allowed to use the force necessary, in this case, just shoving her away, to defend himself in what would otherwise be a crime? Yes, he might’ve recklessly impeded her breath which would be a crime however, does he have the right of self defense ? I would again say yes. I have mentioned this before, but under Texas law if you bring up evidence of self-defense, which could be testimony, you do not have to prove that self defense was reasonable. The DA has approved for the jury beyond a reasonable doubt that it was not. This is a classic case of he said/she said, however in this case they both apparently agree. So the police in fear of covering up for a celebrity (in my opinion), make the arrest because she might have said yes, he briefly choked me. Okay, that is probable cause. After several weeks, the district attorney, released a statement, saying, we are dropping charges This was the statement from the DA: “After a careful and thorough review of the evidence, recent public statements, and considering Ms. Trew's wishes, our office has determined that the felony offense cannot be proven beyond a reasonable doubt," the Travis County District Attorney's Office said in a statement. Wow, after several weeks the DA decided that it could not be proven. 😂😂😂

Under the same punishment reasons for a third-degree felony, it shows if the assault is against a public servant. Again, if you slap your neighbor, it’s a misdemeanor but if you slap a cop, it’s up to 10 years in prison.

Great question. It has to do with the elements and degrees of a particular offense/crime. Many crimes have more than one way to commit the crime. An easy example is from our recent discussion in the Jasper shootings. A person cannot simply be charged with Aggravated Assault. Agg Assault is to commit Assault (misdemeanor with bodily injury) AND…… EITHER… used a “deadly weapon/dw” OR caused “serious bodily injury/sbi” (both are defined in the law). So a person can be indicted as: Agg Assault-SBI or Agg Assault— DW So to your specific question, assault is usually a misdemeanor. It is causing any injury including merely pain. It carries up to a year in jail as a class A misdemeanor. But in the exact same section we have the choking law (impeding breath or blood). It is not a different law and is under the exact section as a misdemeanor assault like if you got mad and slapped (or even choked) your neighbor. When you read part of the section where it lists the punishments, it states: Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code (these sections are relationships under the Texas domestic violence laws), if (B ) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth; You can see that the assault is a class A misdemeanor EXCEPT choking/impeding… So if you get mad and choke your neighbor, but don’t cause serious injury, it’s a misdemeanor. If you get mad and choke your ex-girlfriend, your roommate, etc., it carries up to a 10 year prison sentence. So what you asked about is just assault BUT… It is committed against someone with whom you’ve had a relationship AND… It’s not just causing injury but is recklessly cutting off the breath or blood flow.

From the law… Sec. 22.01. ASSAULT. (a) A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; This is misdemeanor assault or assault with an injury (bruise, pain, etc.). Notice that it only requires to prove the injury was caused by being reckless. Next is Aggravated Assault….. Sec. 22.02. AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person: (1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault. First a person must commit an Assault as defined in 22.01 which is to intentionally or knowingly OR recklessly causing injury. Then it becomes aggravated by either causing serious bodily injury OR using a deadly weapon. A firearm by Texas law is the only item specifically listed as a deadly weapon. Other things “could be”, depending on how used, which requires proof. A firearm requires no proof and just is a deadly weapon. "Deadly weapon" means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury;

I am sure but it will be likely concurrent. And a note on the law… just because it may (probably) come up later in the media. Aggravated Assault is a better charge than Attempted Murder. Things like Att. Murder or Manslaughter sound worse but Aggravated Assault is way easier to prove for the same penalty. An example is Attempted Murder carries a 20 year maximum sentence (2nd degree felony) and Aggravated Assault carries a 20 year maximum sentence (2nd degree felony). In Attempted Murder the state has to prove that the defendant’s intent was to kill the injured victim. So what if the victim was a bystander? Maybe the shooter/defendant was shooting at A and accidentally hit B. How do you prove intent to kill B when it was an accident remembering that B was a bystander. Aggravated Assault only requires the state to show that the defendant “recklessly” injured victim B. So would the DA rather try to prove “intent” which is not only way more difficult, it might actually be true that the defendant did not want to injury victim B or would the DA rather try to prove that B was recklessly injured, meaning an accident, but caused by someone acting recklessly? Remember that both are 2nd degree felonies with a 20 year maximum. I could just about guarantee that they will be charged with aggravated assault for the victims who did not die and Facebook will explode with comments about how stupid the DA is and the police don’t have to investigate because it should be Attempted Murder!!! No, it should be Aggravated Assault.

All arrests are public record except juveniles. You can probably go to the Jasper County courthouse tomorrow and get all of the sworn to arrest affidavits. You can read the probable cause information that led to the arrest warrants.

Imagine that. Now let’s see if the comments start……

I was off duty and on the way home but in uniform (in my personal vehicle) about 10 years ago. I stopped a guy parked in a handicap parking spot at a pharmacy where I had stopped to pick up a prescription. He had no license plate or hang tag and admitted to not being handicapped. His wife was with him. I hardly made any public contacts on traffic stop but that is maybe a pet peeve. Not unusual in this kind of a situation, he could’ve parked 10 feet away in a regular parking spot and half the parking lot was empty. Since I was off duty and did not have a ticket book, I contacted the dispatcher by walkie-talkie and asked for a patrol unit to check by with me. A lieutenant showed up (actually my lieutenant and I was one of his sergeants) since he was on the way home also but he had a take home patrol unit, so had his ticket book. So the lieutenant agreed with the citation and begin writing it. As a routine, the guy was checked for warrants. Oops! He had a couple of traffic tickets that we that he had not paid and warrants for his arrest. So he started boohooing and his wife was crying. Geez…. I know that you don’t want to go to jail but you have warrants so no option but it’s only for traffic citations. What does this have to do with Jerry Springer? All the crying was because they were supposed to catch a flight the next morning (in about 14 hours) to NYC to be on the Jerry Springer Show. I said just pay for the warrants. Nope… they had no money. These folks from the country (like a heavy east Texas accent) were about to miss their dream shot at NYC because the about 30 year old healthy guy didn’t want to walk 10 more feet. I asked them why they were going to be on the show. The guy told me he was supposed to claim that he was having an affair with his wife’s sister and they were supposed to get in the big argument when he springs the information on his wife. Of course the sister-in-law would then walk on stage. I asked him about being paid and he said they would get something like $500 but got to stay in New York City with all expenses paid for a couple of days.

Details are usually released when the police feel the need to release it. Freedom of information does not cross into active police investigations. A few months ago when students were killed in a home in Idaho, not much, was released in the police a statement it seem like they were looking for clues. In various forums (and maybe this one), people were making comments that the police were incompetent and that there were no clues and this was blah blah blah. On another sport forum I just committed that I have no clue, but I would suspect that the police have a lot of information and we’re just not releasing it. Failure to notify the public does not mean that the investigation is not moving forward. In the Idaho situation, the police were actively already tracking the killer and made an arrest not long afterward. I realize that this is not a police bashing thread and it is not a, “where is the investigation going” thread. I was using those examples as information on how investigations are sometimes run. It has evolved into a “how come people aren’t talking” thread. They might be if there was something to comment on. Just because it is not in the news and just because we haven’t heard about it, does not mean that it is not happening behind the scenes.

As a 37+ year police officer I can attest that most cuttings and stabbing were with knives. An occasional broken bottle was thrown into the mix….

Wait, they used firearms in the shootings?

FN didn’t want Carlson to take the stand. To stop that from happening, they offered to settle for less that half of the suit was asking for. Part of the settlement was to get rid of Carlson.

It’s like a person claiming a gumbo is the best ever. So 20 unbiased people try it out. 8 think it is in fact the best they have ever had. 6 say it might not be the best but it is in the top 5 they have ever eaten. 4 will say it’s a pretty good gumbo. 2 will say it’s nasty and they can’t believe anyone would eat it!! You are in the 2 category…. 😂

Interesting. For a matter of law in these discussions, I might have mentioned it before but there are two supreme courts in Texas. The Texas Supreme Court hears civil cases and the Texas Court of Criminal Appeals hears criminal cases. So if you ever read something about a crime in Texas and it says Court of Criminal Appeals (CCA), don’t think why don’t they appeal this to the Supreme Court. For crimes in Texas, it is the Supreme Court. ***** Part of the problem with the questions I pose, if you knew all the applicable case laws, statutes and circumstances, you could probably decipher the correct answer. Everything I gave was from an actual case in Texas in Harris County called Gurrola v. State. The CCA ruled in favor of the defendant and ruled it an unlawful detention by the Harris County deputy. Here is the main but not only problem. The justification for a reasonable suspicion detention is facts and circumstances known to the officer, including using his experience, that would lead a reasonable person to believe a crime might have been committed or was in the process of being committed and the person detained is linked to that crime. To link the person detained to a crime, it has to be information about a specific crime. It can’t be simply, he looked suspicious. So what crime was the officer possibly witnessing? The CCA said that the deputy could not link a crime to the behavior. Arguing is not against the law. I think the court was saying, we understand the deputy wanted to stop the people and investigate but investigate what? Playing what if… could the deputy have witnessed a valid situation to justify a detention? Certainly but if he did, he didn’t justify it in his arrest affidavit. So what if he heard the argument and a threat was made. A threat in a public place is Disorderly Conduct or a threat could be an assault, assuming a victim wishes to pursue charges. Are maybe they were making such a loud noise it was causing a breach of the peace in the apartment complex. Usually we think of that at night when it’s disturbing people. No matter, if the deputy saw any of that, he did not document it. He cannot come back later and simply say, I forgot to put that. Another issue was the anonymous tip from the guy walking the dog. Anonymous tips are held to be unreliable unless officers with independent observation or investigation can corroborate the tip. In this case, I don’t think it really mattered but it is possible. If the guy’s tip was, here is my name, address and phone number, and I just witnessed a guy telling another that he had a gun on him and would shoot him. THAT would no longer be anonymous and reasonable suspicion to force a detention. Again, if that happened, the deputy did not document it. So in this case, even though something may have possibly risen to the level of suspicion of a particular crime, the deputy did not document it and the evidence was thrown out. About 25 long years ago two of my very best friends today from the police department, arrested a guy with cocaine that he was selling. While they were logging the cocaine into evidence, they ran down the situation to me, explaining how they caught the guy including a short foot chase. It was actually a pretty good bit of police work. I later read their probable cause affidavit and went…. oops. I told them before they get the affidavit notarized and turned in with their paperwork, they need med to put in more information. The story they told me was great but it was not what they put on paper (4 corner rule). They disagreed and thought nothing of it. A week later, one of the officers came to me rather dejected and said the district attorney threw out their arrest due to an unlawful detention. The problem was that what they did was not unlawful. Their problem was not documenting what they told me. The guy who was arrested, probably was telling his buddies, the police illegally detained me and the charges were dropped. No, what the officer did was completely legal… but they did not document their actions. So, we don’t know what the deputy in Harris County actually saw, but what he documented on paper did not justify a lawful detention and the CCA removed the evidence.

Carlson was almost certainly part of the sealed Fox News/Dominion lawsuit settlement.

And yes, it’s a tough one.

Unlawfully….. by who? Put another way, did the officer have reasonable suspicion (the Supreme Court does not require not probable cause as is often claimed) to detain them? Facts as known to the officer and not disputed: 1. Officer is flagged down about a disturbance in an area known for crime. 2. Officer immediately finds the suspected disturbance as noted by the description and location from the witness. 3. With his own eyes the officer sees what appears to be an argument in public. 4. When the people noticed the officer, they all started walking away in different directions, as if to avoid contact with him or possibly have something to hide? Does that rise to reasonable suspicion that a crime “might be” committed and not the much higher standard of probable cause where a crime is “likely or probably” being committed? If reasonable suspicion exists, an officer can lawfully detain a person.

In this case, which no one has touched…..????

Yes on all the above…. 😂 The Supreme Court in Pennsylvania v. Mimms (driver) and Maryland v. Wilson (passengers) that there is no violation of the Fourth Amendment by ordering the driver or passenger(s) out of a vehicle with no justification whatsoever. But, the Supreme Court doesn’t make criminal law so what happens if a person refuses? and then depends on state law. Texas has a law that says if you, even with criminal negligence interfere with a duty or authority of a police officer, is a crime called Interference With Public Duties, part of which says: (a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with: (1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law; In Carroll v. US (1925 from a traffic stop for moonshine during Prohibition) the Supreme Court ruled that there is no need for a warrant to search a readily mobile vehicle IF probable cause exists. They ruled that there is no time to get a warrant and expect the vehicle to be there two hours later when the police return with a warrant. A judge would later review the search if anything was seized to rule if a warrant would have been issued with the same facts. Basically the police must still file an affidavit for a warrant but they can do it after the search and if a judge does not agree, any evidence found will be thrown out. Then in US v. Ross (1982) the Supreme Court again reaffirmed Carroll. In CA v. Acevedo (1991) the Supreme Court ruled that if probable cause existed, the police can search the entire vehicle including any closed containers. The CA Supreme Court had overturned a conviction of Acevedo on the grounds that the police needed to get a warrant to search a container because a container could be seized from the vehicle and put into police evidence thereby negating the emergency of a vehicle leaving before the police returned with a warrant. The Supreme Court basically said…. What….. are you stupid California? In Maryland v. Dyson (1999) the Supreme Court ruled that even though the police knew that Dyson might’ve had drugs in the vehicle 14 hours earlier and had plenty of time to get a warrant, it was still not needed. The police got a credible tip that Dyson was carrying drugs but they did not find him for 14 hours. The lower court said that the police should have gotten a warrant since they had time. So from 1925 onward, the US Supreme Court has ruled that there basically is no such thing as a warrant requirement to search a readily mobile vehicle. Other courts, as noted, over the years have added, but what if the police knew earlier or what about a container. The USSC has always slapped them down with, look, we already told you way back in 1925, if the police have probable cause, as later reviewed by a judge, they can search. So if you see a YouTube or Facebook lawyer say (not a real lawyer and there are some good ones for example on YouTube, but the Facebook law degrees-“I heard”), if the police don’t have a warrant they can’t search your vehicle with probable cause….. contact a real attorney. Certainly an attorney will contest the reasonable suspicion of a traffic stop and then the probable cause for the search but not that the USSC doesn’t allow it.

An officer is on patrolin what is called a high crime neighborhood. He is approaching a housing project where many calls such as disturbances, assaults and shootings have occurred. As he nearest the complex, a man walking his dog flags the officer down and says in the parking lot of the apartments there are four or five people standing around a car and there appears to be some kind of disturbance. The officer says thanks and drives toward the apartment parking lot. The unknown man with a dog then walks away. As the officer turns into the parking lot, just like the witness told him, there were five people standing around a car and they were pointing fingers at each other like there is an argument happening. On seeing the police officer, they all turned and walked away in different directions. The officer thinking he is witnessing a disturbance in public, tells a couple of them to stop and they comply with the officers commands. Since there appears to be some kind of an argument where people are mad and since he is out numbered, the officer is worried about his safety (I would be) and frisks them for weapons. He finds a gun on one of them and arrest him for unlawful carrying a weapon. He then finds cocaine on the guy after the arrest for a weapon in what is considered a lawful search incident to arrest. Once that person is under arrest, an officer also has legal authority to search that person completely before bringing him into the jail. No problem? Unlawful? Comments?

Another? An officer pulls over a person. While speaking to the driver, the officer orders him out of the car but the driver says no. He then refuses to get out of the vehicle and tells the officer to get a warrant. Now what?

No takers?