News The glory that is the Texas justice system

[Fredrik]

"A person is justified in using deadly force against another [...] to prevent the other who is fleeing immediately after committing [...] theft during the nighttime from escaping with the property."​

That is incredibly disgusting.

Did any of the articles linked to above say that this law is the reason why this man was found not guilty?

 

[D H]

One very odd thing is that Gilbert was not charged with attempted murder while his victim was still alive: he was charged with aggravated assault with a deadly weapon.

Not so odd. Aggravated assault with a deadly weapon is a more serious crime than attempted manslaughter.

Aggravated assault is a serious crime. Add the "with a deadly weapon" and it's very serious. Aggravated assault is a second class felony in Texas, the same as manslaughter or murder mitigated by "sudden passion" (murder in the heat of the moment). Actively trying to commit a crime but failing to do so is still a crime, but it reduces the degree by one in Texas. Attempted manslaughter (or attempted murder in the heat of sudden passion) would be thus a third class felony.

 

[Office_Shredder]

I'm pretty sure that you must have reasonable proof that theft took place.

Actually this seems false upon googling

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.8.htm

(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

Notice the phrase "defense". If you look at insanity above, you see the phrase "affirmative defense". What's the difference?

http://www.sagepub.com/lippmanccl2e/study/supplements/Texas/TX_08.pdf

This describes an affirmative defense as something which must be proven by the defendant, and a defense as something which must be proven by the prosecution. So if I claim that I formed a reasonable belief that I was being robbed, you have to prove beyond a reasonable doubt that I could not reasonably believe I was being robbed (which is harder even than proving that I was not being robbed).

So it seems the (terribly written?) law is probably applied correctly. He hired a 30 minute escort for 150 bucks off Craigslist - as long as a reasonable person can believe he is hiring a prostitute (which I'm sure they can convince the jury a reasonable person would believe this), then even if he wasn't hiring a prostitute that belief is sufficient to kill her for robbing him

 

[nsaspook]

The current version doesn't say anything about justifiable homicide. It instead talks about use of deadly force:

"A person is justified in using deadly force against another ... to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property."​

I think one factor in the rational for the way the law is written is it's assumed in the state of Texas that everybody has a firearm (mainly true) and at night you can't see that firearm before it's used by the criminal to kill you in order to escape.

Property rights in general are strong in Texas. You don't ever trespass on a persons land without permission.
http://law.onecle.com/texas/penal/9.41.00.html

 

[Vanadium 50]

DH, I never mentioned manslaughter. My puzzlement is why Gilbert was not charged with attempted murder while his victim was still alive, but charged with murder when she died. Understanding that may give some insight into the jury's decision.

 

[Vanadium 50]

That does happen, and jury nullification sometimes is one of the sorry consequences of prosecutorial excess.

I think this is different than jury nullification, which is an acquittal on the grounds that the law itself is unjust.

Consider Boris The Burgler. Boris is captured one night leaving the estate of Thurston and Lovey Howell with a bag full of their jewelry. He is charged with robbery, with larceny as a lesser included offense. At trial, it comes out that a gun was not found on Boris' person, nor the Howell's estate, nor had anyone seen Boris with a gun. The jury finds Boris not guilty of robbery, since there is no evidence of a weapon, which is an essential element in the crime of robbery. However, they find him guilty of larceny.

Where it gets troublesome is when the DA charges Boris with robbery and not the lesser included offense of larceny. This is called "going all in" and DAs like to do this to avoid compromise verdicts. In this case, a jury might (and I would argue should) conclude that since there is no evidence of a weapon, there is no evidence that there has even been a robbery: evidence of a burglary, yes, but a robbery, no. Therefore they can't convict Boris on the charge of robbery, even though he is clearly a burglar. They might well wish to convict him on larceny, but he isn't charged with larceny. So he walks.

That's why I am interested in the facts of this case, and particularly the exact charges. Did the jury have the option to convict Gilbert on manslaughter or battery or assault with a deadly weapon? Or not?

 

[D H]

Property rights in general are strong in Texas. You don't ever trespass on a persons land without permission.
http://law.onecle.com/texas/penal/9.41.00.html

Yes and no. It has to be criminal trespass before one can use force. I've researched this very, very carefully.

I take my dogs for hour-plus long walks through some woods and other tangled vegetation (read the DH "meet a mentor" thread). I live in suburban Houston, so I don't own 100+ acres of land. I own less than a paltry 1/4 acre. Some of that walk is on community property (so I am a part owner), some is on undeveloped public lands, some on private lands. I have rather thoroughly researched the legality of my walks. As far as I can tell, my walks are completely legal.

I have made phone calls, etc., where I can discern ownership. Basically, the answer is "No problem, but don't sue us if something goes wrong. We'll sue you." In the one place where I can't discern ownership, there are no signs, no fences, no purple paint on trees to indicate that I am criminally trespassing. (There are no signs, fences, or purple paint on trees anywhere along that walk. Signs, fences, and purple paint on trees are the three things that distinguish criminal from non-criminal trespass in Texas.) That land of indiscernible ownership has zero economic value. It can't be used for ranching or farming, and it can't be developed because it floods almost every year. Because it's worthless, whoever owns it does nothing to protect it.

 

[D H]

DH, I never mentioned manslaughter. My puzzlement is why Gilbert was not charged with attempted murder while his victim was still alive, but charged with murder when she died. Understanding that may give some insight into the jury's decision.

This man quite literally acted in the heat of sudden passion. That would bring murder (nominally a class one felony) down to a second class felony in Texas, the same as manslaughter. That he didn't kill her (initially) would have dropped the magnitude of the crime by one more level to a third class felony.

There is no "sudden passion" escape clause for aggravated assault, particularly aggravated assault with a deadly weapon. Aggravated assault is a second class felony, period.

Within the second class felonies, murder (mitigated by sudden passion) is a more serious crime than is aggravated assault with a deadly weapon. Once she died, the charge rightfully switched from aggravated assault with a deadly weapon to murder (a class one felony). It would have been up to the defense to claim that the murder was mitigated by sudden passion.

 

[nsaspook]

Yes and no. It has to be criminal trespass before one can use force. I've researched this very, very carefully.

I'm also a Texas property owner (near Waco) so your points are well taken but even if it's completely unmarked it becomes possible criminal trespass as soon as the owner (or someone with apparent authority) says move on and you don't.
http://law.onecle.com/texas/penal/30.05.00.html

There have been people shot dead over the theft of trivial items of property in the state and nobody blinks an eyelash so nothing about this case is shocking to me.

 

[Ryan_m_b]

You have it backwards. If the law is irrational, then the jury showed a remarkable degree of rationality in properly and dispassionately applying it. Posters in this thread are acting like a lynch mob here but the jury chose to follow the law even if they didn't like it.

Come off it, no one here is acting like the were in a lynch mob. They are deploring the horrible fact that a woman was brutally murdered and her killer was allowed to walk free. I don't think the jury was rational (there was no need for the violence, she wasn't physically threatening him and the alleged theft had already happened by this point) and think that in his case the legal system has failed to provide justice.

 

[Vanadium 50]

I just spent more time than I had intended researching this on non-social media. Things are sparse, frankly. Most of what's on the intertubes are people citing very indirect sources and working themselves up in a tizzy. Here are some reported facts that are not to be found on the tizzynet.

1. The jury was not given instructions that they could convict Gilbert on manslaughter. The difference between murder and manslaughter is intent, and that means that the prosecution needs to prove intent beyond a reasonable doubt.

2. Gilbert claims that he was attempting to stop the fleeing car by shooting out the tires. As it happens, the tire was hit, and a fragment from that bullet hit Frango.

3. Defense lawyers offered up multiple defenses (which is their duty), including the one that got everyone worked up. The defendant's own lawyer doesn't think that the jury was convinced by it. Contrary to what one might think by reading Salon or the Huffington Post, juries do not return a legal analysis of their decision.

 

[mheslep]

It's unfortunate that this thread could not start with the above (1-3).

 

[Tosh5457]

Being a Texas native I understand the mindset. People don't take kindly to low down night crawling scum.

Hey that guy took my lawn gnome, stop him!

Haha that video is brutal