Amber Guyger Fights Murder Conviction in Texas Appellate Court
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Former Dallas Cop Amber Guyger, Who Shot and Killed Botham Jean in His Own Apartment, Wants a Court to Acquit Her of Murder

A panel of three intermediate Texas appellate court justices heard arguments Tuesday afternoon in the case of a former Dallas police officer convicted of murdering a Black man after she entered his apartment under the apparent belief that it was her own abode. A jury convicted Amber Guyger on October 2, 2019, in the September 6, 2018 shooting death of Botham Jean. Now she’s asking the appellate court to throw out her murder conviction completely or, in the alternative, to replace it with a lesser charge which carries a softer penalty.

Guyger, who was off duty but was still wearing her uniform and carrying her service weapon, drove to the wrong floor of her apartment complex, walked down the wrong hallway, ignored an unfamiliar floor mat, failed to notice incorrect numbers on nearby apartment doors, opened a door that wasn’t properly locked, and failed to notice other differences before encountering a startled Jean inside. Guyger claimed she shot Jean when he came toward her instead of showing his hands as she commanded.  She said she didn’t know she was in Jean’s apartment until after she pulled the trigger. Guyger is serving a 10-year sentence.

Guyger’s appeals attorney, Michael Mowla, told Justices Robert D. Burns, III, Lana Myers, and Robbie Partida-Kipness of the state’s Fifth District Court of Appeals that the Botham Jean shooting ended with “a horrific result, no doubt.”

Guyger was convicted as charged under two Texas murder statutes: Section 19.02(b)(1) and section 1902(b)(2). They read as follows:

(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual; [or]
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

Mowla launched a two-pronged attack on the conviction. First, he argued that the facts weren’t legally sufficient to give rise to a guilty conviction given Guyger’s assertion that she mistook Jean’s apartment for her own. Second, he said a lesser-included charge, criminally negligent homicide, was a better choice than murder. He asked the appeals justices to either vacate the conviction completely or to wipe away the murder charge and replace it with the negligent homicide charge.

What went unsaid during the appeals argument is that criminally negligent homicide carries a significantly lesser sentence. The charge Guyger preferred is a so-called “state jail felony” punishable by between 180 days and two years in prison.

Most of the oral arguments centered around the first assertion and Texas Penal Code § 8.02, which was not read to the jury at Guyger’s trial.

MISTAKE OF FACT.
(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.
(b) Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.

“She would be guilty of murder,” Mowla admitted, but for “a mistake of fact.”

His brief to the court worded the argument this way:

The evidence was legally insufficient to prove beyond reasonable doubt that Guyger committed Murder because (1) through mistake, Guyger formed a reasonable belief about a matter of fact—that she entered her apartment and there was an intruder inside—and (2) her mistaken belief negated the culpability for Murder because although she intentionally and knowingly caused Jean’s death, she had the right to act in deadly force in self-defense since her belief that deadly force was immediately necessary was reasonable under the circumstances.

“The evidence shows she thought she was walking into her own apartment,” he told the justices in oral arguments heard remotely over videoconference software.  “However, you have to consider all the circumstances surrounding what happened.”

The justices appeared unconvinced.

“Mr. Mowla, you’re overlooking the fact that Ms. Guyger testified she intentionally shot Mr. Jean,” Chief Justice Burns commented.

“I agree she did intentionally shoot Mr. Jean, because that was her intent . . . those are the facts of the case,” Mowla responded. “If she walked into her apartment, and there was an intruder in her apartment . . . she would have been entitled to use deadly force in self defense . . . my client, according to the facts, had a reasonable apprehension of danger when she walked into what she thought was her apartment.”

Mowla then recounted testimony which suggested others at complex, including an attorney, had also walked into the wrong apartment in the confusing complex where halls, walls, and doors looked substantially similar. Witnesses testified to hearing the loud voices of people who seemed “surprised” to see one another before the gunshots rang out.

“These facts have never happened before in Texas,” Mowla said.

Justice Myers suggested to Mowla that the defense was improperly mixing mistake of fact justification with self-defense claims.

Justice Partida-Kipness pressed Mowla on his assertions about Guyger’s intent. Mowla said Guyger did intend to kill Botham Jean, but that her defense was that she formed no guilty mens rea — or evil intent — because she thought she was in her own apartment.

“I don’t think you can reasonably state that, when you consider all the facts of the case, when you consider what happened, okay, that she had an evil intent when she walked into what she thought was her own apartment,” Mowla said.

He suggested that criminally negligent homicide under Texas Penal Code § 6.03(d) was more appropriate – for failure to perceive a risk.

“She shot Mr. Jean, causing his death — that’s undisputed,” Mowla said. “She didn’t pay close enough attention to her surroundings.”

Mowla said Guyger “missed basically four clues” that would have indicated she was in the wrong place.

Judge Tammy Kemp famously hugged Guyger and presented her with a Bible at sentencing.

Attorney Doug Gladden argued the case for the state. He rubbished the defense notion that mistake of fact applied to this case at all.

“This is a murder case, not a criminal trespass case,” Gladden said. “When Amber Guyger shot Botham Jean, she didn’t take someone else’s property. She took the life of a human being.”

“She pointed a gun at him; she intended to kill him,” he continued. “That’s murder. It’s not negligent; it’s not mistake of fact; it’s not justified. Amber Guyger murdered Botham Jean. This court should say so and affirm the trial court’s judgment.”

Gladden noted that the standard of review — the lens through which the appellate justices must view the case at this point in its legal trajectory — is not whether a jury could have agreed with Guyger, but rather whether a rational jury could issue a verdict against her. Here, he said, the jury was rational and convicted Guyger properly.

“Appellant says this case is about mistake of fact, but it’s not,” he said. “Mistake of fact is different. It says, ‘I didn’t commit the offense because, due to a mistaken belief, I did not have the culpable mental state.'”

In a murder case, the culpable mental state is intent: murder is the intentional or knowing killing of someone or the intentional causing of serious bodily injury which leads to death. Other crimes have other requisite mental states, such as recklessness and criminal negligence. And that’s a flaw in Guyger’s attorney’s logic, because here, she shot to kill. Gladden elucidated this point at length and in a manner which seemed to please the justices:

For murder, the mental state relates to the result of the conduct, that is, you have to intend to cause death or serious bodily injury. Appellant is saying her mistaken belief related to her reasonable belief that deadly force was necessary, but reasonable belief is not a culpable mental state. It’s a term that’s used in the penal code as a part of defensive issues and affirmative defenses. Specifically, in this case, self-defense requires you to have a reasonable belief that deadly force was immediately necessary. That’s not a culpable mental state; it’s simply a defensive issue. There was no evidence in this case of any mistaken belief on appellant’s part that would negate her intent to kill Botham Jean. She never testified that she believed Botham was an animal, like a bear or a dog. She didn’t testify that she believed her gun was unloaded or that she had a taser instead of a gun. She didn’t believe the apartment was empty, or that Botham was wearing body armor, or that she was shooting blanks, or that she was aiming away from Botham. All she said was that she believed she was in her own apartment, and that doesn’t negate her intent to kill. So, this court has to decide whether mistake of fact was raised by the evidence in this case. This court has the responsibility to apply the correct law and to do so correctly.

Embedded within that argument is the notion that Guyger can’t legally mix mistake of fact and self-defense and come out with a win on the facts of her case. Gladden continued:

Mistake of fact wasn’t raised by the evidence. Since it wasn’t raised by the evidence, this court cannot write an opinion that both sets out a hypothetically correct mistake of fact instruction and correctly apply the law in this case. This court would be left doing what the trial court did, which is applying the wrong law and doing so badly — and saying that if the appellant reasonably believed that she was in her own apartment, then the jury would have had to acquit her. Even if the jury found that she committed murder and that it wasn’t justified, and that’s not the law. So that leaves self-defense as the only defensive issue raised by the evidence, and the standard of review matters for that because the question is whether any jury could’ve rejected the appellant’s self-defense claim. The only evidence of self-defense in this case came from appellant’s testimony. She said that she believed Botham was in her apartment, that she commanded him to show his hands, and he didn’t — and that he quickly moved toward her while saying, ‘hey, hey!’ But the jury can disbelieve any or all of a witness’s testimony, and if the jury didn’t believe appellant’s testimony, then there’s no other evidence of self defense . . . all the other evidence in the case contradicted appellant’s testimony.  No one heard her give commands to show hands.  Botham didn’t have pockets where he could have hidden his hands. The trajectory of the gunshot wound means that he wasn’t quickly moving toward her, and no reasonable person would have mistaken Botham’s apartment — with the red door mat, the backlit room number, the flashing red light on the lock, and the marijuana smell — as her own.

“So then there are the elements of the offense,” Gladden said with reference to the language of the murder statute. “Appellant intentionally caused the death of an individual. Appellant admitted that she was the shooter and the bullet in Botham’s body came from her gun. She intentionally did it. She admitted that she intended to kill Botham. She shot center mass; she shot him with a firearm — which is a deadly weapon — she shot at a downward angle, and she didn’t render first aid. She caused his death.”

“The evidence in this case is sufficient to prove the elements of murder and to reject appellant’s self-defense claim. Mistake of fact was not raised by the elements of this case. I would ask that this court court affirm the judgment of conviction,” he said.

The justices were silent through the entire state’s argument. In a break from standard procedure, where the justices ask questions as warranted, Gladden asked if the justices had questions.

After a few questions about Texas case law, Gladden said told the justices they “can’t shoehorn mistake of fact into a justification (self defense) claim.”

Justice Partida-Kipness concluded by complimenting Gladden’s “excellent written brief,” which she said was typed in a font which was “very pleasing on the eye” during her “late nights” spent reviewing work material.

Mowla, who reserved time for a rebuttal, declined to actually make one.

The chief justice and Justice Myers thanked both sides for “excellent briefs” and an “excellent presentation,” then said a written opinion would be forthcoming at a later date.

Read Guyger’s appellant brief below:

Amber Guyger – Appellant’s Brief by Law&Crime on Scribd

Read the state’s reply brief below:

Amber Guyger – State’s Response Brief by Law&Crime on Scribd

Watch the Law&Crime Network’s coverage of the case — including Guyger’s testimony — below.

Remembering Botham Jean:

Guyger Testimony, Part 1:

Guyger Testimony, Part 2:

[Images via Law&Crime Network]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is a former anchor and executive producer for the Law&Crime Network and is now a Senior Editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.