tvc184

I believe that question has already been decided by the US Supreme Court. In one of my favorite movie lines, from the movie G.I. Jane, the base captain talking to United States senator says that he can do what she ask as long as she will just “trim a little fat off the Constitution”.

I kind of like the way he thinks but some of his statements are absolutely incorrect in Texas. There is no mandatory arrest in Texas for trespassing and most other crimes and you cannot demand that charges be filed. I mean you can say the words I demand it but there’s no obligation for an officer to do it. He says to get a pitbull attorney and file a lawsuit however that lawsuit has already been settled by the US Supreme Court. Unless there’s a specific state law requiring officers to act, they are under no statutory or constitutional obligation to do so. (See Castle Rock v Gonzalez) I do agree that if you demand someone leave your property and if they do not, you can ask to file charges and they “may” be arrested at the scene which means that it is at the discretion of the officer. I do not agree that you can demand the charges be filed and sue the police if they refuse to make an arrest. There simply is no such law in Texas of a mandatory arrest except in extreme limited circumstances (violation of a protective order) and I suspect in most other states. There are only a couple of circumstances in Texas where the police are even required to make a report. Absolutely contact an attorney if you feel that this is incorrect however I’m fairly certain of my understanding of Texas law and United States Supreme Court case law. Your mileage may vary….

The problem is that in private business you don’t have a captive audience. You can get rid of an employee not performing. That fact alone can give you better employees since it can allow you to give them incentives (even just a pat on the back/encouragement) to be better and keep a job. You can also do a good job in hiring a good employee candidate. A teacher gets none of that. A teacher’s audience is entirely captive with very little recourse to change it. The teacher does not get to interview the students, reject them as a not good candidate, kick them out of class for being lazy, etc. A teacher shows up the first day of class and the school says, here’s your roster. A teacher who is mediocre at best gets a class of excellent students and has a great year. Another teacher who everybody in the school says is awesome ends up drawing some slugs that really don’t care. The mediocre teacher gets a bonus and the awesome teacher gets nothing. I agree that there should be some way to incentivize teachers to do a better job. Other than just an administrator’s opinion, how do you do it?

Just a follow up as my example, these are quotes from the Texas Penal Code. Murder carries a maximum of 99 years, Manslaughter has a maximum of 20 years and CNH has a maximum of 2 years. So you can go from 2 or 99 years maximum based solely on what you were thinking or your mens rea. Notice that the wording is practically identical except for the mental state. Murder: A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual. Manslaughter: A person commits an offense if he recklessly causes the death of an individual. Criminally Negligent Homicide: A person commits an offense if he causes the death of an individual by criminal negligence.

it was a very good question. I think that is one of the misconceptions in the law. The feelings of the other person are basically irrelevant. It goes by the intent of the person committing the crime, not how it was received. Like if I walked up to you in a stern voice and say, “hey we need to talk” while pointing a finger at you. That is not a threat. A person might say it is threatening in their opinion but that is not a crime. If you walked up and said the same thing to me, should I be able to place you in jail and the answer is no. Well, “I felt threatened” does not make it a crime. Now swap the scenario to the opposite direction. Let’s say I try to scare you and call you on the phone and say I’m on the way over with my shotgun, I will be there in five minutes and I’m going to kill you. Would that be a crime? In my opinion, yes. It could be harassment (often called telephone harassment or making a threat on the phone) or terroristic threat. I made a threat to kill you in fairly short order with intent to scare you. That is a crime. But what if…. Let’s say you answer on the phone, good, I have my gun and if you come at me I am going kill you. I’m not afraid of you. Legally your feelings do not matter. Just because you are not afraid, did I still commit a crime and the answer is yes. The crime was my intent to make you scared. Whether you were or not is irrelevant. That’s why, the feeling of the victim does not really matter under the law. It is the type of a mental state of the person who commits the crime that matters. If you get in a legal discussion and really want to impress your friends, tell them that it is the “mens rea” or Latin for the “guilty mind”. Also… Some crimes do not specifically mention a culpable mental state. I think public intoxication is one of those crimes where it just says that you’re in public and you’re intoxicated and you’re a danger to someone, it is a crime. It does not specifically mention your mental state. One is still required however. The law in Texas says that if no mental state is specifically mentioned in the crime, then the prosecutor must prove that you were reckless. To put an easier, if not noted, the minimum of recklessness is a requirement to be proven. The only a mental state lower is criminal negligence. So if a crime does not mention what your mental state was , then the prosecutor has to at the very least prove you were reckless. The difference between recklessness and criminal negligence in itself is interesting. In both of them you did not intend for the consequences. What happened was really an accident. But what is the difference? Criminal negligence is a complete accident but you should have known better. Maybe you ran a four way stop sign and caused an injury. What if you never saw the stop sign because you’re not paying attention as it required by law? In my opinion that is criminal negligence. You had your head up your butt. Now let’s say you ran the same stop sign but you did so intentionally. You sure did not want to get in a wreck and damage your own car so it was an accident. The act of running the stop sign however, was intentional. In both situations running a stop sign was the initial act or crime and the result in both was an accident causing injury. With one you intended to run the stop sign and the other one you negligently ran a stop sign. I call recklessness as an intentional accident. The act was intentional but the results were an accident. Another example might be let’s say you were in the woods target practicing and shooting at a tin can on top of a hill. You did not check out the area and your bullet goes over the hill and hits somebody on the other side. There was certainly no intent to cause that injury but in my opinion you’re darn sure reckless. You were reckless because you intended to fire the shot but did not intend the results. It was an intentional accident. Now let’s say you were walking through the woods with your gun off safety and your finger on the trigger. You trip and fall and your gun goes off accidentally and you hit the same person on the other side of the hill. In my opinion that is criminal negligence because you should have known better than to have your gun off safety with your finger on the trigger walking through the woods. You sure did not intend to fire the shot however your head up your butt caused someone to get shot. In fact in Texas law the only difference between murder, manslaughter and criminally negligent homicide is a culpable mental state. Clear as mud? Again, great question.

…. and speaking of proving elements. I remember at a trial, I was testifying on an aggravated assault or an aggravated robbery (I can’t remember) with a person that was threatened with a knife. The prosecutor asked me, officer in your experience could this knife caused a serious injury or death? My answer was some thing like, yes I have worked a couple of murders and several serious injuries where a knife was used. The defense attorney did not ask me any follow-up questions about the knife. In fact he would probably be stupid if he did. But…. Why the question from the prosecutor? Wouldn’t the jury know by their life experiences that a knife could cause death or serious injury? Sure they would. In court however, each element must be proven and to prove that a knife is a deadly weapon, the prosecutor must present some kind of evidence. That evidence was my testimony. Nothing is assumed in court. Could the defense attorney have argued that my testimony alone was not enough? Sure, but like I said, I think the defense attorney would be stupid. Then I would have started testifying how I saw a guy with his throat cut as he was dead in his front yard, etc. I don’t think that is what a defense attorney would want me discussing in front of a jury. That is just an example though that each element must be proven.

It all depends on the law in that state. All criminal laws are made up of what are called elements. Each element has to be proven for something to be a crime. Included in those elements are the culpable mental state. Those mental states are intentional, knowingly, recklessly and with criminal negligence. As examples, murder has two elements in Texas. You have to (1) intentionally or knowingly (2) take another person’s life. Public intoxication is to (1) be in public, (2) be intoxicated on some substance and (3) be a danger to yourself or someone else due to that intoxication. So public intoxication has more elements than murder. If any one element in a crime is not proven, the person is not guilty. Terroristic threat under Texas law says that you (1) place a person in imminent fear of (2) to seriously injure or kill someone (there is also another terroristic threat like a bomb threat). So the threat against a person has to be of a serious injury or death. The threat has to be imminent meaning it is about to happen fairly soon. An example might be to call someone on the phone and say I’m on the way over to your house to kill you. That is a threat of death and it is imminent. The crime is merely the threat. If a person actually shows up at your house and makes the threat with a deadly weapon exposed, it becomes an aggravated assault. That is why the elements are so important. To walk up and make a threat of imminent death or serious injury is one crime but to display a weapon becomes a for more serious crime with the exact same words. To display a firearm or a deadly weapon with no threat, goes back down to a far lesser crime, barely over a traffic citation. The problem between laws in all 50 states are the federal government is that they can be completely different and/or named differently or have different elements. What Texas calls criminal mischief, another state might call vandalism. What some states call breaking and entering, Texas calls burglary. Going only by the laws in Texas as an example, did the guy on the hood make a threat of serious bodily injury or death that was about to happen? If it could be proven, sure he could be charged. If they had proof that when the guy jumped up there he made some kind of statement like, I will get this gun out of my pocket and kill you, under Texas law that would be terroristic threat. Merely feeling threatened because somebody does something like jump on the hood of a car however is not likely a crime anywhere. It is not the perception of the claimed victim that is ever a crime but the intent of the person doing it. So if the woman in the car said, I felt threatened, that is not a crime. The question is, did he actually make a threat, not what she perceived? I am guessing that even if he did, they will not be able to prove it beyond a reasonable doubt without a recording. In the what if game, what if she had a dash cam with audio and he made some similar Threat? Not only could he be charged, he probably should be charged. If that were true, I think it will be prosecutorial misconduct for them to charge her in a crime and not him. In fact that threat alone if it could be proven, would more than likely negate any charges against her. It would prove her need for self-defense, in my opinion.

She should have never been charged. The guy that claimed he was assaulted should have been charged with obstructing traffic and criminal mischief/ and vandalism. This was nothing but a witchhunt and an appeasement.

Mine was a drowned child also, actually two who went under together. When we found them they were still holding onto each other. The things we see…….

If they have the evidence to make that charge stick and do not plea-bargain it down, there are only two outcomes by law. Life without the possibility of parole or death.

The woman that transported the dead child from Houston to Jasper has charges of Tampering With Evidence changed to Capital Murder. [Hidden Content]

it is an absolutely correct decision and/or it is absolutely a stupid decision. I think it sucks but maybe I understand the rationale. It seems to me that you should get the best people together and everybody do whatever activity it is, and whoever comes out in the top three gets to move on. That is one way to do it. That apparently is not what they go by at least for the high jumpers. The US Olympic committee has apparently set a standard. You have all season to make that standard. If you have never overcome that arbitrary standard during the season, the Olympic trials are a “last chance” to prove you’re worth it. So if A jumped 6’6” three months ago and B has never cleared 6’5”’ this season, B can come to the trials as a last chance. B might have been better today at the trials but has never done better than A did in the last few months. I have not read all of that but it seems like the Olympic committee has come up with a magic number. If you beat that magic number sometime in the last year, you qualify. McPherson did not beat that number and had one last chance to do so and did not. Do they do that for other track and field events? Is there 100 m dash minimum of 10.0 seconds? So if a guy ran a 9.75 six months ago but hasn’t broken 10.3 since then, does he go over a guy who ran 10.1 at the trials? If that’s the rules going in and they are the same for everybody, then you go by the rules. I think most people would rather see, who won when you got them all together head to head.

My partner one time shot and killed a guy by 10 feet in front of me. The guy had a knife and was coming toward us but stopped. He looked at me and I spoke to him and then he turned toward my partner who shot him. There were a couple of other officers on scene and anyone of us could’ve shot at any time prior to that and it would have been lawful. The hesitation is real and the officer that pulled the trigger made absolutely the correct decision. It is not even debatable in my opinion. I sometimes think back about that situation and wish I would have shot earlier and I’m so glad that I did not. I am happy with the outcome and torn by the decision not to shoot earlier. I am the one that took the officer, who was forced to take a life, to the police station to begin the investigation. I remained composed and professional like my experience and training had taught. I can’t tell you that I didn’t have tears in my eyes though. Everyone handles it differently but it can be life altering and certainly does something to you one way or the other.

And just in case someone actually wants to see the law that I was talking about (and maybe wants to go argue with people on Facebook 😂😂😂), for your viewing pleasure: CHAPTER 9 (COVERS SELF DEFENSE) SUBCHAPTER A. GENERAL PROVISIONS Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

I always talk about the what if scenarios but your comment made me think of another. What if… I have read so many comments about the guy had a knife or may have so it had to be self-defense and blah blah blah. but what if… Let’s say the guy did pull a knife, maybe in self-defense, maybe not. Let’s say the guy with a gun did not have it with him. He has the right to stand his ground (maybe) but what if he disengaged from the encounter, went to his car good distance away and then returned with a gun and shot the victim? Does self-defense or stand your ground mean you can go to another location and get a deadly weapon and return to kill a person when you were far enough away that you were no longer in danger? I can see a situation similar to that. What is the victim felt like he was about to be assaulted? What did he pulled out a knife as a threat just to keep the other guy away? The shooter left then he returned with a gun and shot the guy out of anger. I would call that murder. The Texas Penal Code actually addresses that issue. It says it is lawful to display a deadly weapon and not be considered aggravated assault (a threat while displaying a deadly weapon) if they displaying was in self-defense and the intent was to create the apprehension they deadly force would be used if needed. Basically the law says if you have to pull your weapon, it is lawful to do so if a reasonable person in your position would have done the same thing. Still without having any clue what happened, I can see cases where the guy that pulled a knife, even if he pulled it first, did so lawfully and the guy that got a gun and shot him committed a crime.

Hesitation depends on the circumstances. Is someone is coming at you with a knife and getting close? Sure, that was a fairly easy decision. I have been faced with life and death decisions with a gun in my hand many times. Some of those times I could have lawfully (in my opinion) killed a person. I hesitated several times and although I am fairly certain I would have been cleared, I’m glad that I did not kill someone. I have also pulled the trigger on someone. Sometimes it was a clear choice but most of the times it is not. The only time I have pulled a trigger pointing at someone, about one second before I pulled the trigger I did not know I was going to shoot.

I don’t think they freeze will be his undoing if anything. It will be the mask mandate which was completely legal but too many people claimed otherwise. Others that might acknowledge that it was legal, didn’t agree with it.

Also note that the Texas law, a claim of self-defense has to be proven as not true beyond a reasonable doubt. When self-defense is claimed, it adds another element to what the prosecutor has to approve. Basically a person does not have to prove self-defense for it to be legal. The DA has to prove that it was not legal.

Way too many what ifs on this one. Did the victim reach for a knife after the guy pulled a gun on him as a last resort? Did he pull a knife, get out of the car and to take a step toward the shooter who then fired as a last resort for himself? Did the shooter walk all the way across a long parking lot toward the victim with the pistol displayed? Were threats made by either or both? Did the victim get shot several feet away and manage to stagger back to his car before he fell which is why he was at that location? From my experience, when it is clear-cut self-defense or at least it appears to be, the police normally do not make an arrest. In a case like this kind it does not necessarily mean guilty. Not because we all know the law says so but when in doubt, an arrest might be appropriate. The police might be kind of like, we are not real sure so we are going to go ahead arrest this guy. The legal standards for an arrest for murder is only that you intentionally or knowingly killed another person. Any issue of self-defense by law says it can be brought up in court. Basically you could have video and 20 eye witnesses showing it is clearly self-defense in a situation and the police can still legally arrest you. A DA might decide not to prosecute and a grand jury might decide not to indict but an arrest is completely legal. I have only a suspicion that witnesses tipped the scale in favor of an arrest at this time.

Yes, just like the recent case in Silsbee. You cannot willingly go into an action that breaks the law and then when it turns bad for you, claim self-defense… in most cases. Now if you abandon the encounter completely and in the process the other person later retaliates, you would likely have a good legal defense. Of course a lawyer will argue for the defendant’s self-defense. That is the lawyer’s job. I am really going by how I read the law and how I applied it for investigating and filing cases for almost 4 decades. In a trial, both sides will present their case to the jury. After the trial and after both sides make their closing arguments, the judge will read the charge to the jury. Part of that charge will be the applicable law. It will be up to the jury to determine if a criminal act can be proven and/or if a defense was legal under the way the law is written.

I think they both are. Having a Texas governor posturing for a national run is almost a given.

It is very tough to beat an incumbent, period. Merely being better is not enough. The people have to be angry at the incumbent. Allen West will likely be a very strong challenger but, will conservative voters of Texas angry enough at Abbott to vote against him? There is a fairly vocal group Republicans and conservatives that are adamantly against the governor. It all stems from the mask mandate. I don’t think they have anywhere near a majority however. Abbott has been making very popular moves since then with conservatives such as denying the legislature their pay for walking out, signing the constitutional carry law (and other gun or anti federal government laws) and his rhetoric about the border. West is a popular person in his own right and for several years appears to be very conservative. If Abbott was not running, for example he decided to try to be a senator or some other position, West would probably win in a landslide. I just don’t think the stars will line up for him at this moment in time. He will probably make a strong run but…. It is hard to take down an incumbent. I would lean toward voting for West at this moment and I am not against Abbott. I just think that West will be a stronger voice in that position for Texas.

With that thought process you’ve already negated the whole poll. They have George HW Bush 8 slots ahead of his son George W. Bush. The senior Bush lost 10 million votes in his failed reelection bid whereas W. gained 12 million votes in his successful reelection. Thanks for pointing out the folly in these “historians”.

In a sort of humorous way, you have to love that a lot of women say that a woman can do anything a man can do. Heck, you can’t even be the prettiest woman anymore. Men have even taken that away…..

Unlike popular advice, I’m going to spend it all in one place.