Saturday, March 15, 2014

A Specific Intent to Kill

I was a 7th grader in Bryan, Texas when I learned a fellow classmate had been killed by a drunk driver.  I didn't know the boy who was killed personally, but I had seen him around school for years.   A female student at A&M had been celebrating the end of finals by drinking all afternoon when she collided with him and his bicycle.

When I read in the newspaper that the driver had been charged with Intoxicated Manslaughter, I was one indignant 7th grader.  It sure seemed like murder to me.  I didn't like to hear the word "accident," since it was no accident that she had gotten drunk and killed a kid.

I was 12 years old back then, so I suppose I can be excused for not understanding the criminal charging process and how critical the levels of intent are when making those types of decision.  In law school, aspiring lawyers are taught the main levels of intent are Intentionally, Knowingly, Recklessly, and Negligently.  The type of crime a person is charged with is often determined by what he meant to do and those four levels are the ones used to describe that intention.

If I had understood the law when I was in 7th grade, I would have known that the actions of that female student were considered reckless.  She had become intoxicated and decided to willfully disregard the potential dangers of driving while intoxicated.  Her recklessness led to a death that she did not intend to happen.  That's why it wasn't a murder.

Generally, murder is a specific intent type of crime.  If you are being careless with a gun and it goes off and kills someone, that would most likely be a Criminally Negligent Homicide.  If you were playing around with a loaded gun and it went off and killed someone, you would probably be looking at a Manslaughter charge for that reckless behavior.

However, if you take a gun and point it at someone and shoot them and they die, you are going to have a hard time arguing that it wasn't intentional and knowing conduct.  That type of behavior will get you a murder charge.  If you intentionally and knowingly do something that is intended to cause Serious Bodily Injury (for example, shoot somebody in the leg) and that results in a death, that can be filed as a murder, too.

I wrote this post back in 2011 about the Jessica Tata case, which explained the concept of Felony Murder.  Felony Murder allows the State of Texas to charge you with a murder, even if you did not intend to kill someone, if that death resulted from you committing another felony.  The classic example being the guy who is speeding away in a stolen car and unintentionally runs over and kills somebody.

The reason I'm giving you this Law School 101 tutorial is because, for the life of me, I cannot understand the charging decision coming out of the Travis County District Attorney's Office over the Rashad Owens case.

Most of you are probably familiar now with the tragic scene alleged to have been caused during Austin's South by Southwest Festival.  Owens is accused of being intoxicated and fleeing from the police when he plowed into an unsuspecting crowd of festival attendees.  Two were killed and many more were injured.  Everything about the case illustrates a classic example of two counts of Felony Murder and/or Intoxication Manslaughter.

However, the Travis County Sheriff immediately announced he was seeking two counts of Capital Murder on Owens.  Surprisingly, the Travis County District Attorney's Office agreed.

Here's the legal problem with that.

Capital Murder is the highest type of crime there is on a State level in Texas.  If convicted of it, there are only two possible sentences a person can face -- Life in Prison Without the Possibility of Parole (or, as we call it "LWOP") or the Death Penalty.  Since it is the highest of all charges, there are very strict and limited conditions that can turn a "regular" murder into a Capital Murder.

A Capital Murder can occur under many circumstances.  It will be a Capital if a police officer or firefighter is killed in the line of duty.  It will be a Capital if there is a child victim.  It will be a Capital murder if the murder was committed in the course of another felony (such as aggravated robbery, sexual assault, kidnapping, or burglary).  It will be a Capital Murder if there is more than one person murdered.

However, there is one thing that must be present for any crime to be a Capital Murder, and that is the Specific Intent to Kill.

If a person is robbing a bank and then intentionally kills the teller, he has committed Capital Murder.  If a person is speeding away from a robbery and accidentally runs over someone in the process, he's just committed Felony Murder.

See the difference?

By charging Rashad Owens with Capital Murder, the powers that be are alleging that when he drove into the crowd, it was his planned hope and intention to kill someone.  They are saying that Owens wasn't just a drunken jackass running from the cops and showing a tremendous disregard for the sanctity of human life.  They are saying that he decided he specifically wanted to end the life of the people in front of him.  It was his reason for being at that moment.

That's a pretty big stretch of the imagination if you ask me.

The allegations against Owens are still tremendous, even without them being Capital charges.  Felony murder carries a punishment range of up to Life in prison.  Intoxication manslaughter can be punished by up to 20 years in prison, and the law allows for stacked sentences in cases of multiple deaths due.

Mr. Owens has a very high probability of never being set free in society again.

But that doesn't make what he did a Capital Murder.

I don't know why the Travis County District Attorney's Office elected to file Capital Murder charges where a specific intent to kill seems to be absent.  Maybe there is something about the case that I didn't see in the newspapers.  Maybe Owens sat down with police and told them, "You know, I wanted to wrap up my crime spree by killing some people, so I drove my car straight at them."

I doubt it, though.

What seems a little more likely to me is that the Travis County District Attorney's Office wanted to send a message.  A horrible crime happened that brought national attention to their jurisdiction and they wanted to file the highest possible charge they could -- regardless of whether or not they could ever prove that charge.

As a 7th grader, I think I could be excused for not understanding how the law worked.

I'm not so sure that the Travis County D.A.'s Office can be so easily excused.


Anonymous said...

The news said he tried to run down a police officer. Would that change anything?

A Harris County Lawyer said...

Yes. That could potentially change things, if they believed his actions constituted showing an intent to kill the police officer. They could then argue that the "transferred intent" was what killed the two other people instead.

Anonymous said...

So random question for the lawyers, on this whole negligence, recklessness, intent spectrum. If someone can't be convicted of murder for killing someone unintentionally while drunk driving, why can they as a getaway driver in a robbery gone wrong which results in murder, even if they aren't the shooter and had no intention to kill anyone, and the plan wasn't to kill anyone. No intent should = no murder charge by the reasoning in this blog...

Anonymous said...

Anon 1:12. Because the law specifically provides for that as a party to the offense.

I am not going to specifically provide a link to the verbiage, but it is some thing like this.

If a death occurs and a forseable result of the crime being committed is the death of person, then all parties to the offense are guilty of murder whether they specifically caused the death or not.

Anonymous said...

I think the DAs reasoning goes something like this:
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:

19.02(b) (1) is defined as:
(b)  A person commits an offense if he:
(1)  intentionally or knowingly causes the death of an individual;

It can be argues that plowing through a crowd of people with a motor vehicle is BOTH intentionally and knowingly causing death.

Then refer to 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:
(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;

So, 19.02 (b)(1) defines murder as intentionally or knowing causing the death of an individual.....plowing through a crowd with your car probably satisfied that.

19.03 Capital Murder , section (7)"the person murders more than one person:(A)  during the same criminal transaction;"

The act of INTENTIONALLY OR KNOWINGLY plowing a vehicle through a crowd of people and killing MORE THAN ONE PERSON is what the suspect did.

Anonymous said...

Warren said they could!!

Anonymous said...

Based on the PC affidavit, a cop waved his arms at the guy. Surely that's enough for APD to think he tried to kill the cop.

...although they say the video shows that the guy was accelerating through the crowd, not hitting the brakes, which is their "intentionally or knowingly" part. So, intentionaly killing more than one person may get them there, too.

PC affidavit is here:


Gritsforbreakfast said...

The Texas District and County Attorneys Association agreed with you on their Twitter feed, Murray (#sxswcrash).

They said the intent to flee is not the same as intent to kill and, ironically, the higher his BAC, the more difficult it would be to prove the requisite intent.

The PC affidavit didn't say the driver aimed his vehicle at the cop, just that the cop waved his arms to tell him to stop. Also, the driver didn't say he intended to kill people, he said he got scared because he had warrants and fled. No intent to kill, no capital murder.

The capital charge is pointless demagoguery - the DA's office using the tragedy as an opportunity to grandstand.

The title to your post should have been "Is your prosecutor smarter than a 7th grader?"

Anonymous said...

Right--I said that was enough for APD, not reality.

They're trying to get intent from the fact that he kept on going. Essentially, that you can intend to kill during flight, just like you can intend to shoot at a cop during flight. At some point the intent crosses over from "intend to run" to "intend to run over this guy that's in front of me while I'm trying to run." And because intent follows the bullet, or the Civic, they think they have a shot at it.

I'm with you, I just think it's a closer call than a first take would make you think.

Also, I refuse to believe the folks at TDCAA are finding religion.


Anonymous said...

Actually the specific intent to kill requirement is limited to those murders committed during the commission of certain listed felonies. e.g. agg robbery, kidnaping, burglary etc. For the multiple murder category, an intentional OR a knowing murder will suffice.

Anonymous said...

felony murder creates an exception when the unintentional killing occurs during the commission of a felony.

Anonymous said...

11:18, you may want to read the statute again. It requires intentionality and one of many aggravating factors.

David Singer said...

Murray - I'm afraid this pure politics coming out of a DA's office that recently had one of their own convicted of a DWI. They were simply afraid to look weak on a high profile DWI case.

David Singer

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