I have a case that I have to argue on Monday at 8:30 (March 13), so I hope some of you look at this over the weekend. I'm trying to figure out how to get past the submission of a deadly conduct misdemeanor in a charge where the indicted offense is Aggravated Assault on a Police Officer.

The facts are that the defendant holed himself up in the attic after assaulting his daughter in law and told police he would kill them if they tried to get him out. When officers attempted to end the standoff by pulling his arm when he leaned down for some much needed water, he got mad, told them that now they were going to get it, and shot at them with a compound bow and arrow, missing a SWAT sgt.'s foot by a few inches. After he did it, he stomped around and told them that they made him do it because they tried to pull him out.

The defense has requested and probably should get that lesser included, but of course the jury has no idea that it is a misdemeanor. Voir dire in this case, both by myself and the court, was on a first degree felony, and then on 25-99 situations (this guy is also habitual). How far can I go in guilt argument in letting the jury know that all of that conversation in voir dire about the seriousness of threatening a police officer and how they all think it should be a 1st degree felony would be garbage if they convict on the lesser included?

Please help if you have any advice!

Legally, it would be reversible error to imply that the jury's verdict should be swayed by the availability of a more serious punishment for the aggravated assault. Ethically, it would be inappropriate as well.

Of course, the issue is best addressed at voir dire, and the lesson for others that try such cases is to never underestimate the likelihood of a lesser-included offense being submitted.

Years ago, a serious injury to a child case was tried in central Texas. The jury convicted on reckless injury, not knowing that the punishment went down to a 3rd degree felony. They would have spent more time focusing on the intentional (the child was tortured and killed) version of the offense if they had known about the differences.

At this point, all you can do is to get the jury to focus on following the law. Discourage them from considering the "lesser" offense until they have UNANIMOUSLY decided that there is insufficient evidence of the "greater" offense. The verbal clues of "lesser" and "greater" don't violate any legal or ethical concerns and do properly signal to the jury that the greater holds the defendant more responsible for his misconduct than the lesser.

Let us know how it comes out.

I do not think it is possible to recklessly load, draw back, aim and fire a compound bow, especially where the defendant says he intended to retaliate. Make sure if lessers are to be used in the charge that simple assault against the officer (still an enhanced felony) is submitted. I also think you can use an argument like "the defendant should be punished for what he actually did and not just as he would choose to be punished."

I agree that it probably isn't a reckless offense. Our judge is not inclined to give the lesser unless we agree, but we are in the 10th court of appeals, and I'm afraid that any reason to reverse would cause my potentially huge punishment verdict to be reversed. Do you think that I should just object to the submission of the lesser and run that risk? I would love to not have to worry about it.

It should also be noted that, once the 6 hour standoff with the police ended, the defendant drank some roach poison, was taken to the hospital, treated, released, and taken to jail. At the jail, he freaked out because he wanted a blanket and proceeded to fight with jailers. One ended up with a broken thumb and one ended up with a broken wrist, so all is not lost if something weird happens. He is indicted in a separate cause for those.

I don't think I can request the lesser of assault on a public servant, as there was no injury. I thought that a class C threat on an officer was the same as a threat on an individual under 22.01.

While we all might come to some consensus about whether deadly conduct is a true lesser included offense given the facts, my personal approach has largely been to let the defendant have the lesser if there is some plausible justification for it. You are right to be nervous about the court of appeals -- and it's not just Waco -- being unpredictable in its application of the law.

You will feel much better after you get the conviction for the greater offense if the lesser offense was included. You really should trust the jury to know the difference, once it is explained, punishment range notwithstanding.

You are right. The only other lesser-included would be the attempt to cause serious bodily injury (a second-degree felony). While John's approach will likely work, I really think you are safe under Godsey in arguing against inclusion of a charge on reckless conduct. In your case, as there, "the deliberateness of [defendant's] actions belies any attempt to simply threaten." Your case appears quite different from Bell, 693 S.W.2d 434. But, predictability in this area of law probably requires a crystal ball.

Actually, the correct term is probably "release" rather than "fire". But, I would still like to hear how the defense attorney tries to convince the jury his client had no knowledge under those facts.

Oh, he was frightened by the overzealous officers who had broken into his home through a warrantless entry. He fled to a sanctuary, his attic, to try and figure out what to do, taking with him, without any real thought, a crossbow that just happened to already be loaded. It wasn't his weapon, he wasn't familiar with it, thinks it was left by a previous owner, and in a moment of desperation, only to give himself some time to think, pointed the instrument down vaguely at the officers, not intending to hurt anyone, and not knowning how to fire it, suddenly, without warning, saw the arrow fly away.

Not even reckless. More like negligent. Which, by the way, isn't a crime at all.

None of this would have happened, by the way, if the officers would have received proper training in dealing with a mental health issue. Truthfully, the officers should be apologizing and paying out a reasonable settlement for failing to have proper training.

But, the defendant will settle for time served.

I like the way you think, John. But too bad for crazy defendant man, we have the compound bow, and it's not a crossbow. It requires two hands to fire, and it has about a 50 pound pull. But I'd love it if the defense tried that. The last person the jury heard from was our bow hunting expert, and they remember what he looked like pulling it back in the courtroom.

And for those of you who wondered, an arrow fired from a compound bow WILL go through a kevlar vest, and about three inches into the bullet-stopping dummy that it was on. Very interesting. I think it should be a deadly weapon per se. It has no other use. And don't say target practice. Why is it that someone would practice so they are a good shot? So they can kill things.

What may help us is that we have a guy on the jury who appears to have pulled out every hunting related article of clothing he has specifically for this trial. Surely Mr. Deer on the Shirt knows how to fire that thing. We did cable-tie it shut so nobody gets hurt.

I haven't slept all weekend and I have lots of good ideas for closing. I just need to organize them so I can be ready. I am still very worried about it, but I know that the best course is to allow the lesser included and stress that they must believe unanimously that he is not guilty of the primary offense before even considering the lesser.

My co-counsel wants to argue that, instead of convicting of the lesser included, they should just acquit him if they don't think that he did what he was indicted for. What do you all think of that?

I'd say that's bold talk for a second chair.

_________________________________________________
I shot an arrow into the air,
It fell to earth, I knew not where;
For, so swiftly it flew, the sight
Could not follow it in its flight.

-The Arrow and the Song H. W. Longfellow
_________________________________________________

I don't know what evidence the court heard. Is the defendant arguing that, aware of the risk, he shot the arrow with a conscious disregard for any person who stood in its path?

If thetime between the d's threat and the arrow shooting is very short (and assuming deadly conduct is a lesser or your judge thinks it is) only the d's testimony at trial or a rare set of circumstanhces will sufficiently raise the reckless mental state.

If you have a count of aggravated assualt (by threat)-deadly weapon, you can argue that the jury need not reach the question of d's mental state in shooting the arrow, only whether he used or exhibited the bow and arrow in conjunction with the threat.

Remember to ask for an instruction in the charge regarding the presumption in TPC SS22.02(b)(4)(c).

[This message was edited by BLeonard on 03-12-06 at .]

[This message was edited by BLeonard on 03-12-06 at .]

The jury deliberated about 20 minutes and found the defendant guilty of aggravated assault on a police officer. Now on to punishment. I'll let you all know how it turns out.

1. Congrats
2. Did he get the lesser included?

Yes, we agreed that he should get the lesser included submission in the charge. We spent the better part of the morning convincing the judge that it was the right thing to do. It had to do with the way the case was indicted (as shooting an arrow in the officer's direction). Better safe than sorry.

How sympathetic is the daughter in law? If she's poster material, you might mention her in close on punishment asking that the jury protect her from the defendant. He's dangerous because he'd take on officers in the manner he did, but if you put a face on the apple, so to speak, you may increase the severity of the punishment.

Glad to hear it went well.

The jury took 30 minutes to give our defendant 99 years. They had taken that long debating about the difference between that and life. Thanks to all of you for your help. We used much of your advice.

Congratulations, Melanie. That sounds like some excellent work up in Waco. One less person who will hurt an innocent family member or an officer enforcing the law. And we do our best work one defendant at a time.