The civil tort of wrongful death of BSJ by AG is clear. What is the underlying factor? Negligence - she was in his apartment not her own.
But is her negligence a criminal act? Perhaps. Criminally negligent homicide occurs when someone is so negligent, so unreasonably negligent, that another person died because of their act. The affirmative defense of mistake of fact is a question of fact for a jury to weigh. If every benefit of the doubt went to AG with the still confused facts we don't have, JMO I would probably find her criminally negligent specifically for not flipping on a light switch which I believe was right there within easy non-dominant hand reach in "her" (and BSJ's) door entry. I am ignoring the red mat and earwitnesses, other extraneous items like maybe AG was a security guard, etc.
The standard for manslaughter in Texas is recklessness. If there is ice on the road and although cautious and lawfully driving, someone's car goes out of control killing someone, there is no criminal act, just the civil liability. But if someone who is sober is driving 100mph and kills someone, it's vehicular manslaughter because the speed that they were driving at is inherently reckless. It doesn't matter that they had no intent to kill, they were reckless. If a drunk driver over the BAC limit, or any lower BAC or under the influence of drugs, kills someone, that's intoxication manslaughter. Again, no intent to kill, and for this charge reckless driving acts need not be shown, but the impaired driving in and of itself is reckless. All that said...
was AG reckless? I can only say that the quality of her weapon use and control will not be deemed reckless. She fired 1-and-2, with pause and aim. This is not reckless discharge of a weapon but controlled use. It is her decision to use her weapon while she is factually not in her apartment but someone else's apartment that may be criminally negligent or even rise to criminally reckless. I don't know if she was reckless, but I do think that if she had just one beer on her way home, plus being very tired, then she may be deemed impaired, and therefore reckless no differently than a driver well below BAC after just one beer who kills someone. More clear details in this case may also elevate her actions from possible criminally negligent homicide to the reckless standard of manslaughter, for which she was arrested.
I do not see this case rising to murder unless a whole lot more information comes out. She was not in the commission of a crime, she did not act with intent to murder. Compare the known alleged facts in this case to those of Clara Harris who lay in wait in her car, parked at the hotel where her husband was visiting his mistress. She waited until he emerged, and then she intentionally ran him over multiple times until he was dead. That case is murder, and is a sample of the intent or knowing of the murder statute in Texas. Harris was very lucky with the passion downgrade from murder1 to murder2. Most murders involve persons who know each other, or a Ted Bundy stranger rapist-murderer. I do not see the required mens rea for the murder standard in this case.
Hey, it's just one opinion in a sea of opinions. We need a LOT more information on this case. JMO.
