In the early morning hours of New Years Day two security guards were arrested and charged with murder for the shooting death of a patron in the parking lot outside of the Dallas nightclub. Witnesses told police that the security guards were attempting to stop and man from leaving in his truck after assaulting another person in the parking lot. It’s reported over twenty shots were fired. Part of the shooting was captured on video.
The attorney’s in this case will likely use self defense as their primary defense to these charges. Under Texas law a person can use deadly force to defend themselves or a third person. In this case the attorney’s will probably will use both. The key to self defense in murder cases is whether the jurors believe the defendant was acting as a reasonable person would under the same circumstances.
The multiple gunshots fired could create a problem for the self defense claim. Jurors sometimes hold it against a defendant if there are multiple shots fired. The criminal attorney will have to convince the jurors that the multiple shots were fired because the threat was still occurring and the threat was real. As in all trials jury selection will be critical in finding jurors who aren’t open to self defense claims or that are biased against a person using a gun to defend themselves
Earlier this week Farmers Branch police officer Kim Johnson was arrested for the felony charges of murder and aggravated assault. Sunday evening Johnson chased after teenagers Jose Cruz and Edgar Rodriguez after he saw them breaking into his vehicle. Johnson rammed the Cruz’s car which caused it to wreck. Johnson then exited his car and fired multiple shots into the car killing Cruz and wounding Rodriguez. The event was apparently captured on a cell phone camera.
Johnson was off duty at the time and told authorities he had repeatedly identified himself as a police officer prior to the shooting. Johnson’s attorney has stated Johnson fired his weapon because he was in fear of his life. At a news conference the Farmers Branch Police Chief told reporters that it was against the Farmers Branch Police Department’s policy to have off duty officers pursue suspects in their private vehicles. It was also a violation for an officer to ram a suspects car during pursuit. Continue reading
The case of a fatal shooting of an individual by a tow truck driver raises the issue of legal justification of deadly force when a citizen is trying to recover stone property. Under Texas self defense law a person my be justified in using deadly force to prevent theft or recover stolen property at night. Texas law goes further than most states under it’s self defense laws.
Under section 9.42 of the Texas Penal code a person may use deadly force if they have a reasonable belief that deadly force is immediately necessary to prevent theft during the night time or the reasonably believe that any use of force other than deadly force would expose themselves or others to substantial risk of death or serious bodily injury.
In the case of the tow truck driver Lance Lemons was shot after he got into a tow truck and began backing the truck away. There was some type of verbal exchange then the tow truck driver fired into the vehicle. The police have not filed charges and continue to cooperate. As some point a Dallas grand Jury will determine whether to indict this case or issue a no bill based on self defense.
This will turn on what was said between the two just prior to the shooting. It is still not clear as to why the victim was in the tow truck at 3:00am and why he chose to drive the truck. It will also be important for law enforcement to determine if the victim was under the influence of drugs or alcohol.
Texas self defense law is very broad and can cover many fact situations. An experienced Texas self defense lawyer can build a self defense case if given enough facts. It is important for an experienced Texas self defense lawyer to begin working on a case as soon as possible.
Texas self-defense law is some times called an ordinary defense as opposed to an affirmative defense. That is important because under Texas law the defense has the burden of proof with an affirmative defense. An example would be the defense of insanity. With an insanity the criminal attorney must present evidence of insanity and bears the burden of proof. In an ordinary defense such as self-defense the criminal attorney must present evidence of self-defense but the burden of persuasion remains on the prosecution. More simply stated if self-defense is raised by the evidence the prosecution must prove beyond a reasonable doubt that the defend was not acting in self-defense.
In a self-defense trial the criminal attorney should make this point again and again through out the trial beginning in jury selection. As always the jurors must be asked many question about the burden of proof and what beyond a reasonable doubt means to them. Following up on this theme the jurors should be informed that the prosecution must prove beyond reasonable doubt the defendant did not act in self-defense. This will often come as a surprise to jurors. Prosecutors are also sometimes surprised to learn this is the law.
It should be noted the law does not require the prosecution to present additional evidence after the self-defense has been raised. The jury can make their decision based on all the evidence they have heard in the trial.
During argument the criminal attorney must once again emphasis that the prosecution must prove beyond a reasonable doubt that the defendant did not act in self defense. If the state fails to do so or jurors just aren’t sure then the only verdict is not guilty.
If you find your self or a loved one charged with a murder or assault case in which self-defense is an issue you should consult with an experienced Texas self-defense attorney who can advise you on the law of self defense in Texas.
Under Texas Self-Defense law the defendant must almost always testify at trial in order to get a self-defense instruction to a jury. At the close of a jury trial the judge submits the court’s charge to the jury which contains all the law the jury will consider for that particular case. The issue of self-defense often arises in murder and assault cases. The defense does not automatically get a self-defense instruction before the jury unless there has been evidence presented to the jury on that issue.
Some times a criminal lawyer may try and get the issue of self-defense before the jury with-out calling the defendant as a witness. There many reason’s for this. The defendant might not do well on the witness stand. The defendant may have past criminal convictions which could be brought up on cross-examination or his testimony may open the door for extraneous offenses. The issue of self-defense can get before the jury in two ways:
1. The defendant’s statement. Many times the defendant has given a statement to detectives in which he tells them he acted in self-defense. Prosecutors will often not offer a defendant’s statement if the issue of self-defense would be raised. If they can prove their case with out the statement they will hold the statement back and try to force the defendant to the stand so they have the opportunity to cross-examine the defendant. If the prosecutor does introduce the defendant’s statement and self-defense is raised then the jury will get an instruction on self-defense.
2. Through eye witness testimony. If there has been testimony from eye witnesses that describe the defendant acting in self-defense the jury will get the self-defense instruction with out the defendant testifying. An example would be a witness testifying they saw the victim with a gun in his hand and heard the defendant say he didn’t want to fight. Smith v Texas 676 SW 2d 584. I
A study made by the experts at Force Science Institute has found that experts can not accurately determine the location of a shooter based on spent shell casings found at a crime scene. Using controlled conditions the experts found that many variables such as weapon type, ammunition, grip, firing position and ground surface can effect where shell casings come to rest at a crime scene.
Why is this important? When trying a murder or aggravated assault case prosecutors will some times go to great lengths to try and make the evidence at a crime scene fit their theory of the case. Criminal lawyers do the same thing. The position of a shooter is always a critical fact in these types of cases especially in a self-defense case. Prosecutors will some times attempt to have a police officer offer an opinion on where the shooter was standing when the shots were fired based on where the spent shell casings were recovered. Armed with this study any criminal lawyer can either prevent this type of evidence from reaching the jurors ears or destroy the witnesses credibility on cross-examination.
If the prosecution attempts to offer this type of evidence the criminal lawyer should request a 702, 703 and 705 hearings found in the Texas Rules of Evidence. If the judge over rules your objections then cross-examine the witness using the study as your guide. It isn’t rocket science and most juries will easily understand the information.
In every trial a criminal attorney must decide if he or she will call he defendant to testify. If the criminal attorney is presenting a self-defense case then it is almost always necessary to call the defendant to the stand. In order to have self defense language in the courts charge and considered by the jury there must have been some evidence of self defense testimony. Under Texas self defense law that testimony usually has to come from the defendant. To win a Texas self-defense case the defendant has to be prepared to testify effectively.
1. Explain the Law of Self-Defense. The defendant needs to have the law of self-defense carefully explained to him on more than one occasion. The defendant needs to know what is required under the law so that he can better explain his story to the jury.
2. Meet Often With The Client. To properly prepare a client for testifying in a self-defense case requires many meetings. You can’t just throw your client up on the stand after one meeting. The lawyer must study the client’s personality. Then she will know how to question the client. How much direction the client will need on the stand.
3. Develop Best Way To Communicate The Defendant’s Fear. Under Texas Self-defense law the jury must decide if the Defendant used force because he thought it was immediately necessary to defend himself from unlawful force. The most critical part of the defendant’s story is conveying the defendant’s fear and why he had to act. The prosecutor will try to attack this part of the defendant’s story in order argue to the jury that the defendant had other choices and did not have to use force.
4. Prepare the Defendant for Cross-examination. The prosecutor will come at the defendant hard the issue of self defense. The client must be prepared for the cross-examination. It can be very effective to use another lawyer to demonstrate to the client how a prosecutor will cross-examine.
FIVE GOALS FOR GETTING SELF DEFENSE EVIDENCE READY FOR TRIAL
Texas self defense law can be very helpful to the criminal lawyer who is planning on using self-defense to defend a murder or assault allegation. After the criminal lawyer has completed his investigation of the self-defense facts he then must get prepared to get that evidence before a jury. As the trial date nears the lawyer should the accomplish the following 5 goals in order to present the self-defense evidence to a jury:
1. Interview the Witnesses. After interviewing the client and locating all relevant reports the criminal lawyer should interview all relevant witnesses. An investigator can be locate the witnesses and conduct an initial interview but he lawyer should always conduct his own interview.
2. Prepare Witnesses. As the trial date nears the witnesses who will be called to testify should be prepared for their testimony. This requires more interviews. The criminal attorney should walk them through their direct testimony and prepare them for cross-examination.
3. Visit the Scene. The criminal lawyer should always visit the scene of the incident if at all possible. I don’t care how many photographs were taken of the crime scene a lawyer can always learn something more if they actually visit the crime scene. If the defendant is on bond then he should accompany the lawyer. If there are defense witnesses who witnessed the incident have them come to the crime scene also. This will help both the lawyer and the witnesses at trial.
4. Subpoena the Witnesses. No matter how cooperative witnesses have been during the investigation, when the trial date nears the attorney should serve the witnesses with subpoenas. That is the only way the lawyer can forcefully bring a witness to court if the witnesses fails to show up.
5. Subpoena all Documents. All documents the criminal lawyer needs for trial should be subpoenaed. The attorney should also either subpoena witnesses who can sponsor these documents or file business affidavits that will allow the documents to be admitted into evidence.
Expert witnesses can be extremely valuable witnesses when proving a self-defense case in trial. There 3 types of experts that are typically called by the defense.
1. Psychologist or Psychiatrist may be called to testify about the defendants’ psychological history and give opinions as to why the defendant used force. For example a psychologist could testify to “battered woman syndrome” to explain why a woman shot her abusive husband.
2. Deadly Force Expert. You often see these types of experts when a police officer is on trial for murder. The experts can testify how quickly a deadly assault can occur and how officers are trained to shoot. For example deadly force experts have been called to demonstrate how quickly a person armed with a knife can inflict a deadly wound.
3. Medical Examiners. Medical examiners can often give favorable testimony regarding defensive wounds on the defendant. They can also sometimes collaborate a defendant’s story of how wounds were inflicted. It is important to meet with the medical examiner before trial and go over these points.
If the criminal attorney is going to use experts she must take the time to research the law and prepare to fight the prosecution on the admissibility of the experts testimony. Prosecutors don’t like experts testifying for the defense in these cases and will fight to keep them off the stand. Judges are not used to seeing experts called by the defense and the criminal lawyer should be prepared to present the judge case law to persuade the judge to allow the expert. If the judge refuses to allow the defense expert to testify then the criminal lawyer should make a record the record is clear as to what the expert would testify to and the reasons the court should allow the testimony.
In order to win a self defense case the criminal attorney must begin preparing the case at the moment he or she is retained. Gathering the facts from the actual incident and then developing additional facts which will build the self-defense case is essential. Texas criminal law is favorable to self-defense evidence. Dallas criminal lawyers know that if they are prepared they have a better chance of convincing a judge to allow their self-defense facts into evidence. Here are the first 6 goals a criminal lawyer should try an achieve when they are retained on the case.
1. First and foremost the criminal attorney must meet and interview the client at the earliest opportunity. If the charge is murder or aggravated assault then there is a strong likelihood that the client is sitting in jail. The criminal attorney must get to the jail as soon as possible and meet face to face with the client. It is also essential to instruct the client to not speak over the jail phone to anyone about the facts. Almost all jails record jail phone calls and make them available to prosecutors.
2. During the first interview with the client the criminal attorney should explain in detail the law of self-defense. It is essential that the client understand when force is justified and what evidence is admissible at trial. The client almost always testifies when self-defense is the issue and that preparation must begin with the first meeting.
3. Have the client explain every fact that he can recall regarding the incident. Keep in mind that the client may not recall all details surrounding the incident right away. Studies by memory experts have shown that individuals who have been involved in a traumatic event such as a shooting need at least 72 hours before they can accurately recall the events. Because of these studies the Dallas Police changed their policies and don’t allow there officers who have forced their weapons to be interviewed by investigators until 72 hours have passed. The client must be interviewed numerous times over the next few months.
4. If the client and the victim knew each other then the criminal attorney should find out every bad fact the client knows about the victim. Under Texas self defense law bad facts known by the client about the victim can be admissible at trial. It is extremely important to have the client recall every violent incident he has known the victim to have been involved in, such as fights, threats and gang membership. It does not matter that the client knows these facts through hearsay under Texas law they can still be admissible.
5. Have the client make a list of every person who may know about violent acts committed by the victim. This can lead to the discovery of more witnesses and incidents that can be admissible at trial.
6. Hire a private investigator to assist you in preparation of the case. In order to successfully prepare and present a self-defense case witnesses must be located and interviewed and the criminal lawyer needs a good investigator to accomplish these goals.