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Experts: Justifiable homicide probable in beating death of man molesting girl

By BY SONNY LONG AND JENNIFER PREYSS - SLONG@VICAD.COM
June 12, 2012 at 1:12 a.m.
Updated June 13, 2012 at 1:13 a.m.


JUSTIFIABLE HOMICIDE

According to the Texas Department of Public Safety, justifiable homicide is the killing of a felon by a peace officer in the line of duty or the killing of a person during the commission of a felony by a private citizen.

In 2010, there were 98 justifiable homicides. Of those, 50 were committed by private citizens and 48 were felons killed by police.

SOURCE: Texas Department of Public Safety, Texas Crime Report 2010

The father who reportedly saw his 4-year-old daughter being sexually assaulted and beat the man to death could have a valid justifiable homicide defense if the case goes to trial, legal experts say.

"Texas law allows a person to come to the aid of a third person," Gerald Treece, law professor at the South Texas College of Law in Houston, said Tuesday.

The Texas Penal Code in Section 9, Justification Excluding Criminal Responsibility, addresses the use of force to protect a third person.

That part of the code states, in part, that "a person is justified in using deadly force against another to prevent the imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery."

The death occurred Saturday afternoon in a pasture off Lavaca County Road 302 between Yoakum and Shiner.

A 47-year-old Gonzales man was killed. His name has not been released by law enforcement pending notification of his next of kin. The father has not been charged in the case.

The Texas Rangers are assisting the Lavaca County Sheriff's Office in the investigation, Lavaca County District Attorney Heather McMinn said Tuesday.

Treece said that, not knowing the facts in the case, he could speak only in generalities.

"One could argue that he went too far, but if the facts bear out the father's story and it was one continuous act, I think a district attorney would have a hard time recommending charges against him," Treece said.

Victoria attorney George Filley agreed with the professor.

"If the facts bear out as the father reported them, then there is a valid defense of justifiable homicide," said Filley, who has worked cases with similar defenses as both a prosecutor and a defense attorney.

"Also, as a prosecutor, I had a number of cases that involved justifiable homicide that a grand jury looked at and decided not to indict," Filley said.

McMinn has indicated she will present the case to a grand jury once law enforcement has completed its investigation and turned the case over to her office.

Filley said a district attorney has the power to dismiss the case outright without going to a grand jury.

"I am not talking specifically about this case, because I don't know the facts, but a prosecutor is well within his or her statutory authority to not file charges, not send it to a grand jury," Filley said.

But there is another side to that coin, Filley added.

"Sometimes it's good to let 12 people look at it than just the district attorney alone making the decision," he said.

Michael Sheppard, district attorney for the 24th Judicial District that includes DeWitt, Refugio and Goliad counties, also said he could talk only in generalities about the scenario surrounding the case, but was in agreement with the other experts.

"I think that it's just the kind of case where the fine points of the law become a little blurred," Sheppard said. "The chances of successfully prosecuting it would be slim."

Sheppard said if the investigation confirms the father's story, a jury likely would side with him.

"Certainly, there would be a lot of sympathy from a grand jury or a petit (trial) jury," Sheppard said. "It's going to be hard to persuade anyone that he used more force than necessary. It is our natural instinct to protect children."

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