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    Texan Who Videotaped His Own “Self-Defense” Convicted on Re-Trial

    Texan Who Videotaped His Own “Self-Defense” Convicted on Re-Trial

    Jury convicts Raul Rodriguez of murder after just three hours of deliberations

    This past Monday we wrote about the start of the re-trial of retired firefighter Raul Rodriguez who was previously convicted of murder and sentenced to 40 years in jail after shooting a neighbor over a dispute about the neighbor’s noisy party. Rodriquez had claimed self-defense justification for the killing.  That prior post can be found here: Retrial Begins for Firefighter Who Selfied “Stand-Your-Ground”

    That re-trial ended yesterday with the jury returning a verdict of guilty of murder after three hours of deliberation, reports the Houston Chronicle.

    Rodriquez first murder conviction in this case was overturned because of a somewhat subtle error in the jury instructions on self-defense, as covered in some detail in a post last December, New Trial for Man Who Video Recorded Own “Self-Defense” Shooting.   No one knew, of course, whether the mistaken jury instruction had led the first jury astray and resulted in an improper guilty verdict, but a defendant is entitled to correct jury instructions and so a re-trial was ordered on appeal.

    This second conviction seems completely unrelated to the concerns surrounding the first–an issue of the timing of when Rodriquez may have openly displayed his concealed carry pistol–but instead focuses strictly on the issue of provocation.

    “This case is about provocation, pure and simple,” prosecutor Kelli Johnson told jurors in closing arguments earlier in the day. “The law doesn’t allow you to create a situation and then claim self-defense.”

    As the Houston Chronicle summarizes the facts of the case:

    The party on May 2, 2010 was to celebrate the birthdays of Danaher’s wife and daughter. … The evening brought karaoke and speakers. … The music was too loud and [Rodriguez] called the police several times to the property, but they did not respond. He walked to Danaher’s house, more than 100 yards away, with a videocamera, a cell phone and a gun. …  When Rodriguez got to Danaher’s home, he used his flashlight to signal the partygoers that he was watching from the street, about 25 yards away. Sampson said a group of intoxicated, “angry men” then confronted Rodriguez. In the video shown to jurors, Rodriguez can be heard repeatedly saying, “I am in fear for my life.” Rodriguez then fired twice, killing Danaher, prosecutors said.

    The defense tried to argue that the case centered on the last split-second when Rodriguez had to make the decision on whether to shoot, but the jury appears to have bought the state’s narrative that it was Rodriguez who substantially created the circumstances in which that decision had to be made.

    As an aside, as nice job as the Houston Chronicle piece did on summarizing the facts of the Rodriguez piece, their self-described “Legal Affairs Reporter” performed the usual acts of “journalism” on self-defense law generally, with a couple of real howlers.

    Here’s one:

    Under “stand your ground,” a person in fear for the life does not have a duty to retreat before using deadly force. It was famously invoked by George Zimmerman, a Florida man who killed teenager Trayvon Martin, setting off a months-long firestorm over the law’s intent and how it is applied.

    (Emphasis added.)

    Uh, no. George Zimmerman did not “invoke” stand-your-ground. The very notion of “invoking stand-your-ground” is nonsensical, as stand-your-ground is not something that can be invoked.  Stand-your-ground merely removes an otherwise existing duty to retreat before using force in self-defense.  It’s in effect as a function of its nature, it’s not something that’s triggered by any act of the defendant.  In any case, retreat was not an issue in the Zimmerman trial at all.

    On the chance that by “stand-your-ground” the reporter mistakenly means “self-defense immunity,” which certainly is something that necessarily must be invoked by a defendant in a self-defense case, Zimmerman to this day has never sought self-defense immunity.

    Here’s another:

    The so-called Castle Doctrine allows a person to use deadly force to protect their private property (their “castle”) but also the private property of another in certain situations.

    (Emphasis added.)

    This is another common mistake.  Properly understood, the Castle Doctrine, like stand-your-ground, only has an impact on the element of avoidance.  In states that do impose a generalized duty to retreat before using force in self-defense (states that are not stand-your-ground states), that duty is generally excused when one is inside one’s “castle,” variably defined as one’s home, place of business, or vehicle, depending on the jurisdiction.  So, you need not first retreat before using force in self-defense if you are in your home, etc., even if you are in a duty-to-retreat jurisdiction (with some important exceptions).

    The Castle Doctrine has nothing whatever to do with how much force you can use when defending yourself in your home, nor under what circumstances you might be justified in using force when in your home (where some states relax the standards for use of force against another).  Those factors are dealt with under legal doctrines of defense of property, not the Castle Doctrine.   All the Castle Doctrine says is that you need not retreat when in your “castle.”

    Other than that, the article was mostly correct.

    If only these journalists would spend the $9.99 for the Kindle version of “The Law of Self Defense, 2nd Edition,” they’d need not make such silly errors. 🙂

    –-Andrew, @LawSelfDefense


    Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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    Comments



     
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    Gremlin1974 | November 21, 2015 at 9:23 pm

    Completely off topic, but most folks that comment on Andrews posts have a pretty good sense of humor, so I noticed this as a headline in the ticker up top for CI.

    “Student Claims He Was Suspended For Having a Consensual Threesome”

    Why can’t my life problems be more like this? I know it isn’t really a laughing matter but it still just struck me when I saw the headline.


     
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    Sammy Finkelman | November 21, 2015 at 9:42 pm

    It sounds to me that Raul Rodriguez committed premeditated murder, and part of the plot was to take a video camera with him, and tape himself saying “I am in fear for my life.”

    Now, who does that?

    He had to know he’d likely shoot to do all that taping, and it didn’t matter even if it was in fact dangerous to confront his neighbor (but safe to avoid him)

    The motive was evidently to end the music playing once and for all, or possibly he had other disputes.

    The prosecutor for some reason had to argue that even if he was in fear for his life, that’s only because he went there, knowing or thinking it was dangerous, or knowing or thinking that what he was about to do was dangerous, at least so long as it was not within his legal prerogatives to demand what he was demanding. He had no authority to order the neighbor to shut down the music if the police were not going to do that. He’s the one disturbing the peace in that case.


     
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    Sammy Finkelman | November 21, 2015 at 9:49 pm

    I think the real truth is Raul Rodriguez never believed his life was in danger, and it shouldn’t have been necessary to argue that, even if he did, he was guilty.

    If somebody’s life in in danger, you’re not going to make sure of your legal defense before you do anything.

    I don’t like this idea of losing your right to self-defense if you start an argument with a dangerous man. There should have been enough proof that it couldn’t be true that he beleived his life to be danger.

    “but also the private property of another in certain situations.”

    Andrew, I’m pretty sure, at least here in Texas, that this has nothing to do with the Castle Doctrine.


       
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      Gremlin1974 in reply to SDN. | November 21, 2015 at 10:41 pm

      I think it depends on the definition of “castle” in the states law. Some states include curtilage and/or business and/or car. Heck in a couple of states you can pursue your attacker. In one state you can shoot to keep them from taking your property.


         
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        SDN in reply to Gremlin1974. | November 22, 2015 at 2:58 am

        In Texas, you can specifically use deadly force in defense of others, or their property, anywhere and anytime, provided the other conditions for deadly force are met.

          “In Texas, you can specifically use deadly force in defense of others, or their property, anywhere and anytime . . . ”

          Uh, the Texas provision for using deadly force in defense of property, §9.42, explicitly requires the taking be place at night. That’s hardly “anytime.” There are also numerous other hoops which must be jumped through, and lots of subjective elements.

          See: http://lawofselfdefense.com/statute/texas-sec-9-42-deadly-force-to-protect-property/

          To say relying on §9.42 to keep yourself out of jail for the rest of your life is a hazardous enterprise would be understating the case.

          –Andrew, @LawSelfDefense


             
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            SDN in reply to Andrew Branca. | November 22, 2015 at 8:54 am

            Andrew, I feel like I’m correcting Einstein’s physics; that said, you might want to read that again:

            (2) when and to the degree he reasonably believes the deadly force is immediately necessary:

            (A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, *** or *** criminal mischief during the nighttime; or

            (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, *** or *** theft during the nighttime from escaping with the property; and

            The word in that line is OR, not and. My English classes say that means any of the circumstances.

            Also, since both “theft in the nighttime” and “criminal mischief in the nighttime” are clearly separated from the list of other crimes by commas indicating that they are separate offenses and have additional rules around them that the others do not.

            Commas are very important in Second Amendment law; we’ve been arguing about the ones in the Amendment itself for a while. 😎

            I fully agree that 9.42 is not a license to shoot just anyone, but the limitation doesn’t appear to be quite as strict as you suggest. See also this, particularly section III and IV. Note that the authors are not fans.

            Perhaps, but this seems to me most unlikely. To my knowledge there is no appellate review of §9.42. If you’re aware of legislative intent or case law supporting that position, I’d be glad to hear of it.

            –Andrew, @LawSelfDefense


             
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            Char Char Binks in reply to Andrew Branca. | November 22, 2015 at 12:05 pm

            It’s always nighttime somewhere.


             
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            SDN in reply to Andrew Branca. | November 29, 2015 at 2:32 pm

            Andrew, I spent some time this week trying to research this issue on line; bottom line is that I couldn’t find even a definition in the Texas Code of what nighttime means here. They have definitions for premises, for theft of services, and a host of other terms in the statute, but not this one. That seems a curious omission.

            Turning to case law, I could only find two or three collections of cases and all of them were old as in pre 1920. I’m not sure if that means there haven’t been any specific cases since, or if they’re where I can’t get to them; all the recent results that use the phrase were in places like reddit, thinkprogress, etc. I suspect that I’d have to be able to search through cases that aren’t in computer searchable form on the public internet.

            If I come across anything else, I’ll let you know as an OT comment to a more recent post.

    That was why I included the NC Law Review article. I’ll see what else I can get to; not being an actual lawyer, it may take a while, but I’m on vacation this week.

      I have found the vast majority, almost all, law review articles on self-defense law to be poorly reasoned and argued, and largely written by people who don’t know very much about the subject of self-defense law but who write on it solely for political purposes.

      –Andrew, @LawSelfDefense

      A third of the way through the NC law review article you link, I find past experience to be repeated. It is meandering, overly wordy, and not particularly well thought out.

      –Andrew, @LawSelfDefense


       
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      Gremlin1974 in reply to SDN. | November 22, 2015 at 2:12 pm

      I have to say the case that is referenced in that article is about one of the most convoluted omni-celestial screw ups that I have ever read. That guy was found not guilty because there was no manslaughter instruction given and the prosecutors didn’t demand that it be given as a lesser included charge, period.

      If the Jurors were as confused as I am by this case then they probably voted not guilty just to be safe and not accidentally put an innocent man in jail.

      I have looked for the jury instructions in that case but can’t find them in the public domain.

      Now, I am gonna go take something for the headache looking into that case caused. 🙂


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