ACCEPTED

05-19-01236-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
8/4/2020 2:34 AM
LISA MATZ
CLERK

FIFTH COURT OF APPEALS

FILED IN
No. 05-19-01236-CR 5th COURT OF APPEALS
DALLAS, TEXAS
8/4/2020 2:34:02 AM

Amber Renee Guyger, Appellant,

LISA MATZ
Clerk

v.
State of Texas, Appellee

On Appeal from the 204th Dist. Ct. Dallas Co.

No. F18-00737

Guyger’s Appellant’s Brief

Michael Mowla
P.O. Box 868
Cedar Hill, TX 75106
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Guyger

Oral argument is requested

1
I. Identity of Parties, Counsel, and Judges
Amber Renee Guyger, Appellant

Michael Mowla, attorney for Guyger (appeal and trial)

Robert Rogers, attorney for Guyger (trial)

Toby Shook, attorney for Guyger (trial)

Shelley Shook, attorney for Guyger (trial)

Zachary Horn, attorney for Guyger (trial)

John Snider, attorney for Guyger (trial)

State of Texas, Appellee

John Creuzot, Dallas County District Attorney

Faith Johnson, Dallas County District Attorney (indictment)

Jason Hermus, Dallas County Assistant District Attorney

Douglas Gladden, Dallas County Assistant District Attorney

Jason Fine, Dallas County Assistant District Attorney

Laquita Long, Dallas County Assistant District Attorney

Mischeka Nicholson, Dallas County Assistant District Attorney

Bryan Mitchell, Dallas County Assistant District Attorney

Judge Tammy Kemp, 204th Dist. Ct. Dallas Co.

2
II. Table of Contents

I. Identity of Parties, Counsel, and Judges ................................. 2

II. Table of Contents .......................................................................... 3

III. Table of Authorities ..................................................................... 8

IV. Table of Appendix ....................................................................... 13

V. Statement of the Case, Procedural History, and

Jurisdiction.................................................................................. 14

VI. Statement Regarding Oral Argument .................................... 16

VII. Issues Presented ......................................................................... 17

VIII. Facts .............................................................................................. 18

Southside Flats Apartments ................................................. 18

Guyger worked with the Dallas Police

Department’s Crime Reduction Team ................................ 21

The days leading up to September 6, 2018 ......................... 22

Jean entered his apartment at 9:34 p.m. ............................ 22

Guyger’s workday on September 6, 2018............................ 22

Guyger left work at 9:33 p.m. ................................................ 23

Guyger arrived at Southside Flats at 9:46 p.m.

and enters the garage............................................................. 23

What Guyger would have seen had she driven to

the third floor—the correct floor ......................................... 23

In error, Guyger drove to the fourth floor......................... 28

Guyger began walking towards what she

thought was the third-floor apartments ............................ 30

3
Guyger walked down the hallway of the fourth
floor towards what she thought was her
apartment ................................................................................. 34

Guyger arrived at Jean’s apartment 1478,

mistakenly believing that it is her apartment .................. 37

Using her fob, Guyger attempted to enter what

she thought was her apartment. She hears loud
shuffling and someone walking inside. The door
was not locked, so Guyger was able to to enter
the dark apartment................................................................. 43

Guyger saw a silhouette figure standing in the

back of the apartment. Guyger pulled her pistol
and yells “Let me see your hands. Let me see
your hands” but she could not see the figure’s
hands. The figure walked towards Guyger at a
fast pace. Believing she was in mortal danger,
Guyger fired two rounds at the figure................................ 43

Guyger realized that she was not in her

apartment and did not know the person ........................... 45

At 9:59 p.m., Guyger called 9-1-1 and began

performing chest-compressions on Jean ........................... 45

The location of the shell-casings indicate that

Guyger was just inside the doorway when she
fired her pistol ......................................................................... 46

Officers and paramedics arrived at Jean’s

apartment ................................................................................. 48

Jean’s injury and cause of death ......................................... 50

Ballistics evidence .................................................................. 51

4
 Joshua Brown heard “two people meeting each
other” as though they were surprised to see
each other, and then heard two gunshots ......................... 53

Guyger had no drugs or alcohol in her system ................. 54

Corporal Richardson’s investigation .................................. 55

Ranger Armstrong’s investigation and the

problem with doors and locks to Jean’s and
other apartments..................................................................... 55

Residents regularly parked on the wrong floor,

walked to the wrong apartment, attempted to
enter the wrong apartment, or entered the
wrong apartment, or a combination of these .................... 59

On a burglary call, officers take a position of

cover and concealment, but if they entered their
own homes and saw an intruder, they would use
deadly force. When faced with a deadly threat,
officers use their firearms ..................................................... 62

Other witnesses heard the gunshots or saw

Guyger, or both ........................................................................ 64

IX. Summary of the Arguments ...................................................... 67

X. Argument ...................................................................................... 68

Issue 1: 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

5
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. ...................................................... 68

Introduction........................................................................ 68

Standard of review for legal sufficiency....................... 69

Standard of review for legal insufficiency

when a defensive claim is asserted ................................ 72

The hypothetically correct jury instructions .............. 73

When deadly force in self-defense is justified

............................................................................................... 74

Through mistake, Guyger formed a

reasonable belief about a matter of fact—that
she entered her apartment and there was an
intruder inside—and 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 ..................................................................... 79

A rational jury would have concluded that

Guyger was reasonable in her belief that she
entered her apartment, saw an intruder who
did not show his hands, and was justified in
using deadly force in self-defense .................................. 81

The facts of this case appear to be

unprecedented, but Jaggard v. Dickinson—a
case based on the mistake-of-fact defense

6
 with remarkable similarities to Guyger’s
case—provides persuasive authority ............................ 99

The evidence was legally insufficient to

prove Murder under Tex. Penal Code §
19.02(b)(1) .......................................................................... 106

The evidence was legally insufficient to

prove Murder under Tex. Penal Code §
19.02(b)(2) .......................................................................... 109

Issue 2: In the alternative, Guyger requests that

this Court acquit her of Murder, convict her of
Criminally Negligent Homicide, and remand for
a new hearing on punishment. ........................................... 114

Introduction...................................................................... 114

Criminally Negligent Homicide is a lesser-

included offense of Murder ........................................... 114

Guyger did not commit Manslaughter

because she did not consciously create the
risk ...................................................................................... 115

Guyger at most is guilty of Criminally

Negligent Homicide for inattentive risk
creation or the failure to perceive the risk ................ 118

The Court should reverse the Judgment and

sentence, acquit Guyger of Murder, convict
her of Criminally Negligent, and remand for
a new trial on punishment............................................. 120

XI. Conclusion.................................................................................. 121

XII. Certificate of Service ............................................................... 121

XIII. Certificate of Compliance ....................................................... 122

7
III. Table of Authorities

Cases

Aliff v. State, 627 S.W.2d 166 (Tex.Crim.App. 1982) ........................... 117

Allen v. State, 253 S.W.3d 260 (Tex.Crim.App. 2008) ............................ 83

Amis v. State, 87 S.W.3d 582 (Tex.App.-San Antonio

2002, no pet.) ................................................................................ 112

Bowden v. State, 166 S.W.3d 466 (Tex.App.-Fort Worth

2005) ............................................................................................. 116

Bowen v. State, 640 S.W.2d 929 (Tex.Crim.App. 1982) ................ 110, 111

Bradley v. State, 564 S.W.2d 727 (Tex.Crim.App. 1978) ...................... 104

Braughton v. State, 569 S.W.3d 592 (Tex.Crim.App.

2018) ................................................................................... 78, 80, 81

Broussard v. State, 809 S.W.2d 556 (Tex.App.-Dallas

1991) ............................................................................... 76, 109, 113

Burnett v. State, 865 S.W.2d 223 (Tex.Crim.App. 1993) ...................... 116

Cary v. State, 507 S.W.3d 761 (Tex.Crim.App. 2016)............. 72, 109, 113

City of Austin v. Leggett, 257 S.W.3d 456 (Tex.App.-

Austin 2008, pet. denied) ............................................................. 104

Contreras v. State, 73 S.W.3d 314 (Tex.App.-Amarillo

2001) ......................................................................................... 79, 81

Depauw v. State, 658 S.W.2d 628 (Tex.App.-Amarillo

1983, pet. ref.)............................................................................... 111

Dewberry v. State, 4 S.W.3d 735 (Tex.Crim.App. 1999) ......................... 72

Dillon v. State, 574 S.W.2d 92 (Tex.Crim.App. 1978) .......................... 107

8
Dyson v. State, 672 S.W.2d 460 (Tex.Crim.App. 1984)........................... 76

Edwards v. State, No. 05-10-00559-CR, 2011

Tex.App.LEXIS 9512 (Tex.App.-Dallas, December
6, 2011) (mem. opinion) ................................................................ 111

Ex parte Drinkert, 821 S.W.2d 953 (Tex.Crim.App. 1991)

........................................................................................................ 75

Feldman v. State, 71 S.W.3d 738 (Tex.Crim.App. 2002) ...................... 115

Ford v. State, 112 S.W.3d 788 (Tex.App.-Houston [14th

Dist.] 2003, no pet.) ........................................................................ 77

Girdy v. State, 213 S.W.3d 315 (Tex.Crim.App. 2006) ......................... 115

Guevara v. State, 152 S.W.3d 45 (Tex.Crim.App. 2004)....... 108, 109, 113

Hamel v. State, 916 S.W.2d 491 (Tex.Crim.App. 1996) .......... 76, 109, 113

Hignett v. State, 341 S.W.2d 166 (Tex.Crim.App. 1960) ...................... 112

Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007) ............................. 72

International-Great N. R. Co. v. Reagan, 49 S.W.2d 414

(Tex. 1932) .................................................................................... 104

Jackson v. Virginia, 443 U.S. 307 (1979) .......................... 70, 71, 110, 114

Jaggard v. Dickinson, 3 All ER 716 (1980), 1981 (QB)

527 ................................................................................ 101, 104, 105

Jones v. State, 544 S.W.2d 139 (Tex.Crim.App. 1976) ..... 75, 82, 109, 113

Krajcovic v. State, 393 S.W.3d 282 (Tex.Crim.App. 2013)

........................................................................................................ 73

Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009) .... 70, 71, 110, 114

Lewis v. State, 529 S.W.2d 550 (Tex.Crim.App. 1975) ......................... 117

9
Lincoln v. State, 307 S.W.3d 921 (Tex.App.-Dallas 2010,
no pet.) .......................................................................................... 107

Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997) ........................... 71

Manrique v. State, 994 S.W.2d 640 (Tex.Crim.App.

1999) ............................................................................................. 108

Miranda v. State, 350 S.W.3d 141 (Tex.App.-San

Antonio 2011) ........................................................................... 79, 81

Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App.

2012) ..................................................................................... 119, 120

Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1996) ............................ 107

Musacchio v. United States, 136 S.Ct. 709 (2016) .................................. 71

Nash v. State, 664 S.W.2d 343 (Tex.Crim.App. 1984) .......................... 120

Nevarez v. State, 847 S.W.2d 637 (Tex.App.-El Paso

1993) ..................................................................................... 110, 111

Padilla v. State, 326 S.W.3d 195 (Tex.Crim.App. 2010) ........................ 71

Patrick v. State, 906 S.W.2d 481 (Tex.Crim.App. 1995) ....................... 108

Payne v. State, 710 S.W.2d 193 (Tex.App.-Beaumont

1986, no pet.) ................................................................................ 118

Powell v. State, 194 S.W.3d 503 (Tex.Crim.App. 2006) ............ 72, 82, 113

Robertson v. State, 109 S.W.3d 13 (Tex.App.-El Paso

2003, no pet.) ................................................................................ 118

Russell v. State, 665 S.W.2d 771 (Tex.Crim.App. 1983) ....................... 108

Salinas v. State, 644 S.W.2d 744 (Tex.Crim.App. 1983) ...................... 117

Sanders v. State, 707 S.W.2d 78 (Tex.Crim.App. 1986) ......................... 77

Saxton v. State, 804 S.W.2d 910 (Tex.Crim.App. 1991) ......... 73, 109, 114

10
Schroeder v. State, 123 S.W.3d 398 (Tex.Crim.App.
2003) ..................................................................................... 116, 119

Smith v. State, 268 S.W.2d 144 (Tex.Crim.App. 1954) ........................ 111

Smith v. State, No. 05-10-01555-CR, 2012

Tex.App.LEXIS 2323 (Tex.App.-Dallas, March 23,
2012) (mem. opinion) .................................................................... 112

Stadt v. State, 182 S.W.3d 360 (Tex.Crim.App. 2005).......................... 117

Teague v. State, No. 03-10-00434-CR, 2012

Tex.App.LEXIS 1304 (Tex.App.-Houston [1st
Dist.] Feb. 16, 2012) (unpublished).............................................. 111

Thompson v. State, 236 S.W.3d 787 (Tex.Crim.App.

2007) ............................................................................................... 82

Torres v. State, 7 S.W.3d 712 (Tex.App.-Houston [14th

Dist.] 1999) ..................................................................................... 76

Vodochodsky v. State, 158 S.W.3d 502 (Tex.Crim.App.

2005) ....................................................................................... 74, 110

Werner v. State, 711 S.W.2d 639 (Tex.Crim.App. 1986) ......................... 75

Winfrey v. State, 393 S.W.3d 763 (Tex.Crim.App. 2013) .. 72, 82, 109, 113

Wise v. State, 364 S.W.3d 900 (Tex.Crim.App. 2012) ............................. 70

Ybarra v. State, 890 S.W.2d 98 (Tex.App.-San Antonio

1994, pet. ref.)............................................................................... 120

Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App. 2003) .......................... 73

Statutes

Tex. Code Crim. Proc. Art. 37.09 (2018) ............................................... 114

Tex. Code Crim. Proc. Art. 42A.055 (2018) ........................................... 120

11
Tex. Code Crim. Proc. Art. 42A.056 (2018) ........................................... 120

Tex. Code Crim. Proc. Art. 44.25 (2020) ................................. 70, 109, 113

Tex. Penal Code § 12.34 (2018) ............................................................. 120

Tex. Penal Code § 12.35 (2018) ............................................................. 120

Tex. Penal Code § 19.02 (2018) ......................................................... 14, 15

Tex. Penal Code § 19.04 (2018) ............................................................. 115

Tex. Penal Code § 19.05 (2018) ............................................... 73, 118, 120

Tex. Penal Code § 6.03 (2018) ......................................................... passim

Tex. Penal Code § 8.02 (2018) ................................................................. 80

Tex. Penal Code § 9.01 (2018) ................................................................. 76

Tex. Penal Code § 9.31 (2018) ............................................... 74, 76, 78, 80

Other Authorities

Mark Twain, Following the Equator: A Journey Around

the World, ch. 15, p. 156, AMS Press (1897) .................................. 68

Rules

Tex. Rule App. Proc. 39 (2020) ................................................................ 16

Tex. Rule App. Proc. 43.2 (2020) ............................................. 70, 109, 113

Tex. Rule Evid. 201 (2020) .................................................................... 103

Constitutional Provisions

U.S. Const. Amend. V .............................................................................. 69

U.S. Const. Amend. XIV .......................................................................... 69

12
IV. Table of Appendix
• Jaggard v. Dickinson, 3 All ER 716 (1980), 1981 (QB) 527

13
To the Honorable Justices of the Court of Appeals:

Appellant Guyger submits this Brief:

V. Statement of the Case, Procedural History, and Jurisdiction

This appeal seeks to overturn the Judgment of Conviction by Jury

(“Judgment”), entered and sentence imposed on October 2, 2019 in State

v. Guyger, No. F18-99737 (204th Dist. Ct. Dallas Co.) in which Guyger

was convicted of Murder under Tex. Penal Code § 19.02(b)(1) & (2) (2018)

and sentenced to 10 years in the Texas Department of Criminal Justice

(“TDCJ”). (RR15.8; RR16.129; CR.2536-2539).1

On November 30, 2018, Guyger was indicted for Murder under Tex.

Penal Code § 19.02(b)(1) & (2) (2018): on or about September 6, 2018, in

Dallas County, Texas, Guyger: (1) intentionally and knowingly caused

the death of Botham Jean by shooting him with a firearm—a deadly

weapon—and (2) did unlawfully intend to cause serious bodily injury to

Jean, and did commit an act clearly dangerous to human life by shooting

1The Clerk’s Record is cited as “CR” or “CR-Sealed” followed by the page number. The
Reporter’s Record is cited as “RR” or “RR-Supp-Xs” (Supplemental Exhibits Volumes)
or “RR-Supp-Sealed” (Supplemental Sealed Exhibits Volumes) followed by the
volume and page or exhibit number.

14
Jean with a firearm—a deadly weapon—and caused Jean’s death.

(RR8.92-93; CR.18). Guyger pleaded “not guilty.” (RR8.93).

Voir dire occurred on September 13 and 23, 2019. (RR6; RR8). The

trial on guilt-innocence began on September 23, 2019. (RR8.91). After

hearing the evidence, on October 1, 2019, the jury found Guyger guilty of

Murder under Tex. Penal Code § 19.02(b)(1) & (2) (2018) as charged in

the indictment. (RR15.8; CR.18).

On October 1, 2019, the trial on punishment began. (RR15.9). On

October 2, 2019, after hearing evidence, the jury assessed a sentenced of

10 years in TDCJ. (RR16.129; CR.2536-2539).

A motion for new trial was not filed. On October 2 and 16, 2019,

Guyger filed timely notices of appeal. (CR.2541, 2580-2581). The trial

court certified that this is not a plea-bargain case and that Guyger has

the right to an appeal. (CR. 2534). Thus, this Court has jurisdiction over

this appeal.

15
VI. Statement Regarding Oral Argument
Attorney for Guyger requests oral argument. This case has complex

facts and legal arguments, which are some criteria for oral argument.

This case presents an issue of legal sufficiency that appears to be of first

impression. Attorney for Guyger briefed the issues as thoroughly as

possible within the confines of this Brief. However, if the Court believes

that its decisional process will be aided by oral argument, Attorney for

Guyger requests it. See Tex. Rule App. Proc. 39 (2020).

16
VII. Issues Presented
Issue 1: 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.

Issue 2: In the alternative, Guyger requests that this Court acquit

her of Murder, convict her of Criminally Negligent Homicide, and remand

for a new hearing on punishment.

17
VIII. Facts
Southside Flats Apartments
Southside Flats Apartments in Dallas has four floors with an

attached parking garage. (RR9.90; RR17.SX36). Guyger had lived in

apartment 1378 on the third floor since July 2018—for 56 days—while

Jean had lived since June 2017 in apartment 1478 on the fourth floor,

immediately above Guyger’s apartment. (RR9.90-91, 188-194; RR12.22;

RR17.SX31-SX32, SX34-SX35; SX70-SX86). Apartments 1378 and 1478

had the same floor plan, and the kitchen, countertops, couches, and

televisions were in the same places. (RR9.193; RR10.24-26, 29;

RR17.SX33; DX32-DX38).

In the garage, the only indicator of the floor were signs in front of

the reserved parking signs and small black placards on the inside frames

of the elevators. (RR10.30-31, 224-225, 229; RR11.60, 66; RR17.SX68,

SX83, SX261):

18
When one entered the apartments from the garage, there were no

indicators of the floor. (RR10.31). The garage and hallway on the third

and fourth floors are identical. (RR10.114-119; RR17.SX261). When one

stood where Guyger parked on the fourth floor facing the entryway into

the building, the view was indistinguishable from the same position on

the third floor (RR12.174-175; RR17.SX251, DX79):

19
After the incident, Southside Flats affixed floor numbers to the

entryways. (RR10.31-32).

The apartment locks open only with fobs that use RFID—radio

frequency identification. (RR9.210-211, 287). If the lock did not recognize

the fob, it blinks red. If it recognized it, it blinks green and allows entry.

(RR9.210-211). One must turn the door-handles—which are passive and

do not lock—to enter. (RR9.276, 285). Once inside, one must engage the

deadbolt to lock the door because they do not lock by themselves.

(RR9.276-277, 285).

20
 Regional manager Hollie Gibralter was not aware of issues with

the lock or door to apartment 1478. (RR9.214). It was never reported to

her that when humidity was high, the door would not completely shut

because of the strike plate’s installation. (RR9.214-215).

Guyger worked with the Dallas Police Department’s

Crime Reduction Team
Guyger is 5’3” and is petite. (RR9.284; RR12.76; RR17.SX53-SX56).

She started at the Dallas Police Department (“DPD”) academy in

November 2013. (RR12.30). Officers are trained at the firearms training

center to shoot suspects in the torso. (RR8.202). Guyger soon began

working with the Crime Response Team (“CRT”), which focuses on drug

cases, assisting the DEA and FBI and apprehending fugitives. (RR8.156,

RR12.36-37, 55).

Her supervisor Watson described Guyger as highly capable,

competent, and qualified. (RR8.161, 198). Young officers like Guyger

accumulate overtime by the nature of the work. (RR9.171-172). Overtime

is approved by supervisors. (RR.172-173).

21
 The days leading up to September 6, 2018
Between September 3-5, 2018, Guyger worked (RR9.166-168;

RR17.SX.19):

• September 3: 8:00 a.m. to 8:00 p.m. (4.0 hours of overtime);

• September 4: 8:00 a.m. to 4:00 p.m.; and

• September 5: 8:00 a.m. to 6:15 p.m. (2.25 hours of overtime)

Jean entered his apartment at 9:34 p.m.

The last reading on September 6, 2018 for Jean’s door prior to the

incident was 9:34 p.m.—time-stamped 8:34 p.m. incorrectly. (RR9.218,

295; RR17.SX39, p.2).

Guyger’s workday on September 6, 2018

On September 6, 2018, Guyger left for work at 7:23 a.m.—the

timestamp of Guyger’s door-lock—time-stamped 6:23 a.m. incorrectly.

(RR9.289; RR17.SX40, p. 1). She arrived at work shortly before 7:47 a.m.

and undocked her bodycam. (RR9.27; RR17.SX24, p.1, line 8). Guyger

assisted SWAT in locating robbery suspects. (RR8.163; RR12.54-55).

Later that day, Guyger helped SWAT serve warrants. (RR12.56-57).

Guyger helped transport the suspects to DPD headquarters for interview

22
by detectives. (RR12.58-59). Guyger worked 5.8 hours of overtime—13.8

hours total.

Guyger left work at 9:33 p.m.

Guyger docked her bodycam at 9:26 p.m. and left at 9:33 p.m. She

texted Rivera, “barely walking out.” (RR9.27, 168; RR10.88; RR17.SX.19,

SX24, p.3, line 61). At 9:38:37 p.m., Guyger received a call from Rivera,

which lasted until 9:55:21 p.m. (RR10.89). They spoke about work and

Rivera’s Boy Scout activities with his children. (RR12.63-64).

Guyger arrived at Southside Flats at 9:46 p.m. and

enters the garage
Because the gate was open, no entry registered into the garage with

Guyger’s fob. (RR9.220, 298-299; RR17.SX41, SX50). Guyger was on the

phone with Rivera when she pulled into the parking garage. (RR12.65).

What Guyger would have seen had she driven to the

third floor—the correct floor
Had Guyger driven to the third floor and parked, she would have

seen this—minus the natural light (RR17.SX53-SX54):

23
 As Guyger would have approached the entryway and elevator on

the third floor, she would have seen this:

24
The entryway from the third floor of the garage had no indicators

showing the floor (RR17.DX55):

Had Guyger entered the third floor and walked down the hallway, she

would have seen this (RR17.DX56):

25
26
27
And Guyger would have arrived at her apartment 1378 and seen this

(RR10.40; RR17.DX61):

In error, Guyger drove to the fourth floor

In error, Guyger drove to the fourth floor and parked her white

Dodge truck by backing into a spot in the direct sight of the entryway

into the building. (RR10.33; RR12.65-66; RR17.SX170, SX175-SX176).

From where Guyger exited her truck, there was nothing obvious

showing the floor. (RR10.33-34). Guyger would have seen this

(RR17.SX175-SX176):

28
29
 Guyger began walking towards what she thought was
the third-floor apartments
Guyger began walking towards what she thought was the third-

floor apartments—but was actually the fourth floor. (RR12.70-71). She

was in full police uniform, carrying her heavy vest, lunchbox, and

backpack in her left arm and using her left hand because she was taught

through police training to always keep free the hand on the side her

firearm is holstered. (RR9.257-258; RR12.70-71). Attached to her utility

belt was a police radio, two handcuffs, her pistol (RR9.257-258; RR12.67-

68; RR17.SX53, SX253, DX74-DX76), a taser, two additional pistol

magazines, a knife, O.C. spray—oleoresin capsicum spray—and a

flashlight. (RR10.219-224; RR11.99-102; RR17.SX53-SX57, SX74-SX76)

(The bottom 1/3 of SX75—her lunchbox—is deleted since it shows only

the surface on which the lunchbox was photographed):

30
31
32
33
As Guyger approached the entryway on the fourth floor, she would have

seen this—without daylight or the scooter (RR10.36; RR17.DX46):

Guyger walked down the hallway of the fourth floor

towards what she thought was her apartment
As Guyger walked entered the hallway of the fourth floor, she would

have seen apartment numbers on the mirrored glass to the left of each

door frame just as they are on the third floor (RR10.38; RR17.DX47):

34
Guyger would have seen this as she continued down the hallway of the

fourth floor (RR17.DX48-DX49, DX51):

35
36
 Guyger arrived at Jean’s apartment 1478, mistakenly
believing that it is her apartment
Guyger would have arrived at apartment 1478 (RR10.40; RR17.DX52):

37
When the exterior of Jean’s apartment 1478 is compared to Guyger’s

apartment 1378 (RR17.DX61), they are identical except for the red

doormat. (RR10.40; RR11.135-137; RR17.SX95, SX97, SX267). Like all

other apartments, the numbers are not on the doors or immediately next

to them, but are on gold panels about a foot to the left of the doors, as

Guyger (#1378) and Jean’s (#1478) apartments show (RR9.215;

RR10.216, 228, 232; RR17.SX80-SX81, SX95, SX97):

38
The outside of Jean’s apartment while standing to the left of the door:

39
The outside of Jean’s apartment while standing to the right of the door:

40
The outside of Guyger’s apartment while standing in front of the door:

41
The outside of Guyger’s apartment while standing to the left of the door:

42
 The numbers are elevated and level with the top panel of the

doorframe, over a foot to the left of the doorframe. A person who is 5’6”

has to look up and to the left to see the apartment number. (RR12.178).

Guyger is 5’3”. (RR9.284; RR12.76).

Using her fob, Guyger attempted to enter what she

thought was her apartment. She hears loud shuffling
and someone walking inside. The door was not locked,
so Guyger was able to to enter the dark apartment
When Guyger arrived to what she thought was her apartment 1378,

she pulled out her keys and placed the fob into the lock and turned it.

(RR12.73-74, 79-80). Guyger heard loud shuffling and someone walking

inside. (RR12.81). The door was cracked open and her turning the fob

caused the door to open more. (RR12.80, 82). While holding her

equipment in her left arm, she used it to fully open the door. (RR12.85-

86). This occurred in two seconds or less. Guyger was terrified, believing

that someone was inside her apartment. (RR12.82-83). She did not see a

light on inside. (RR12.84). Guyger dropped her equipment in front of the

door to keep it propped open. (RR12.86).

Guyger saw a silhouette figure standing in the back of

the apartment. Guyger pulled her pistol and yells “Let
me see your hands. Let me see your hands” but she
could not see the figure’s hands. The figure walked

43
 towards Guyger at a fast pace. Believing she was in
mortal danger, Guyger fired two rounds at the figure
Guyger immediately saw a silhouette figure standing in the back of

the apartment. (RR12.84-85). The distance between the front door and

the back of the apartment is about 30 feet. (RR12.87-88). Guyger pulled

her pistol and yelled at the figure, “Let me see your hands. Let me see

your hands.” (RR12.85, 88). Guyger could not see the figure’s hands.

(RR12.85). The person—who turned out to be Jean—walked towards

Guyger at a fast pace, yelling “hey, hey, hey.” (RR12.86, 88). Guyger

believed she was in mortal danger because of the circumstances and

because she could not see his hands. (RR12.86). Guyger’s complete

attention was on the figure. (RR12.90).

Guyger fired two rounds—one round struck the south wall of Jean’s

apartment, and the other struck Jean about half an inch above his left

nipple. (RR10.174-179, 189, 196; (RR12.89; RR11.73; RR17.SX268-

SX270). Jean fell to the ground, near the entryway into the bedroom, with

his feet in front of the television. (RR10.27-28; RR17.DX36).

44
 Guyger realized that she was not in her apartment and
did not know the person
Guyger walked to the kitchen counter. (RR12.89). That is when she

realized that she was not in her apartment because of the Ottoman in

the middle of the floor. (RR12.89-90). She noticed the light from the

television. (RR12.90). She did not know the person she had just shot.

(RR12.90).

Guyger shot because she thought the figure was going to kill her.

(RR12.89). Guyger shot two rounds—a “double tap”—because she was

trained by DPD to do so. (RR12.118). Guyger intended to shoot to kill.

(RR12.124).

At 9:59 p.m., Guyger called 9-1-1 and began performing

chest-compressions on Jean
At 9:59 p.m., with the phone in her right hand, Guyger called 9-1-

1. (RR9.14-18; RR12.91; RR17.SX4, SX4A, SX5, p. 3, SX20). Using her

left hand, Guyger began performing chest-compressions. (RR12.91).

Guyger did not know where Jean was shot. (RR12.91). Guyger had never

performed CPR in an emergency situation. (RR12.90). During the call—

while panicked—Guyger told the operator that she is an off-duty DPD

officer, repeatedly said that she thought she was in her apartment, she

45
shot a guy thinking that she had entered her apartment and he was

inside, she thought she had parked on the third floor, and thought she

was on her floor. (RR17.SX4. SX4A). Officers were dispatched. (RR9.19).

During the 9-1-1 call, the dispatcher asked Guyger where she was,

and Guyger did not know. (RR12.91). She had to go outside to look at the

apartment number. (RR12.91). Guyger turned on a light. (RR12.92). She

went back to Jean and began performing a sternum rub, which she had

seen performed by paramedics. (RR12.92-93). She wanted Jean to keep

breathing. (RR12.93).

At 10:02:25, Guyger sent a text to Officer Rivera, “I need you.

Hurry.” (RR10.90). At 10:03:03, Guyger sent another text to Rivera, “I

fucked up.” (RR10.90). Guyger sent these texts because she needed help,

and the first person she thought of was her partner Rivera. (RR12.95).

The location of the shell-casings indicate that Guyger

was just inside the doorway when she fired her pistol
The shell-casings from the two rounds fell in the kitchen-area, just

inside the main walkway of the apartment as shown by the two yellow

cones (RR10.65, 237; RR17.SX.106, SX140):

46
47
 Officers and paramedics arrived at Jean’s apartment
Officers Lee and Blair responded to a “Signal 15”—officer assist—

and arrived at Southside Flats just before 10:03 p.m.—the bodycam

began at 10:02:06, and they arrived 37 seconds into the video. (RR9.31-

33, 37-44; RR17.SX6). They were met outside the apartment by Guyger

at about 10:05 p.m., who guided them inside. (RR9.69; RR17.SX6 at 3:12).

Guyger was upset and very emotional. (RR9.69-70). Lee directed Guyger

away from the scene because it is best to get the involved officer away.

(RR9.70). Lee and Blair provided CPR to Jean, who was alive but not

alert. (RR9.42-46, 58-59, 70; RR17.SX295-SX303). The State

acknowledged that the photos in SX295-SX303 were brightened and did

not depict the lighting conditions inside Jean’s apartment. (RR9.47-49).

Lee did not get blood on his hands while providing CPR. (RR9.71).

Officers Dugas and Guzman arrived. (RR9.80-82; RR17.SX8, SX25,

SX27-SX30). Officers Nguyen and Lopez also arrived, and Nguyen tried

to treat Jean—whose feet were immediately in front of the television—

for shock by elevating his feet to circulate his blood. (RR11.18-23, 28-29;

RR17.SX21, DX68-DX69).

48
 Sergeant Valentine was next door at a 7-Eleven when she received

the call from dispatch at about 10:01 p.m. (RR9.97-101; RR17.SX10). She

arrived at Jean’s apartment moments later. (RR9.104). Valentine and

others saw Guyger’s keys dangling in the doorway, with the fob inserted

in the lock. (RR9.107-108; RR10.68; RR17.SX98):

There were no signs of forced entry. (RR9.108; RR10.214). Guyger

was in the hallway on her cellphone. (RR9.105-106; RR17.SX14). When

Valentine learned that Guyger was involved, Valentine took Guyger

downstairs and placed her in her squad car to seclude her until a

detective appeared. (RR9.108-111).

49
 Fairleigh and other paramedics received the dispatch call at 10:02

p.m., arrived at Southside Flats at 10:03 p.m., entered the apartment,

took over at 10:08 p.m., continued CPR, and carried Jean on a stretcher

to the ambulance. (RR9.175-177, 183-184; RR17.SX20). It took Farleigh

five minutes to get to the apartment because they were unable to locate

access keys or fobs and had to be let in by tenants. (RR9.183). When

Fairleigh began chest-compressions, blood came exited the wound.

(RR9.181). Fairleigh left with Jean at 10:21 p.m. and took him to Baylor

Hospital, where they arrived at 10:30 p.m. (RR9.179; RR17.SX20).

Jean’s injury and cause of death

Dr. Chester Gwin—medical examiner for the Southwestern

Institute of Forensic Sciences (“SWIFS”)—conducted the autopsy.

(RR10.165-170; RR17.SX268-SX273). Jean was well-developed, 6’1”, and

247 pounds. (RR10.173). The gunshot—which caused his death—entered

his left pectoral region 15.25 inches below the crown of his head and 5.5

inches left of his anterior midline, or about 0.5 inches above his left

nipple—and struck his fifth rib. (RR10.174-179, 189, 196; RR17.SX268-

SX270). The round was recovered from the psoas, a muscle that runs

along each side of the lumbar spine. (RR10.199).

50
 The round struck the left ventricle—the largest chamber of the

heart that pumps the most blood to the body. (RR10.179-180). This injury

causes heavy bleeding inside the body. (RR10.193). Chest compressions

with this injury contribute to blood pushed through the vascular system.

(RR10.193). The round was not redirected inside his body. (RR10.189).

Tetrahydrocannabinol (THC) was present in his blood but not alcohol.

(RR10.190; RR17.SX268).

Ballistics evidence
April Kendrick—supervisor of the firearm and toolmark unit at

SWIFS—confirmed that the casings were fired by Guyger’s Sig 9mm

pistol, but she was unable to confirm that the bullet came from that

pistol. (RR11.112-113, 117, 121-122; RR17.SX247-SX250). Gwin

admitted that the trajectory could have indicated that Jean was struck

as he was bent over and getting off his couch. (RR10.203).

Dr. Castro—trace-evidence examiner for SWIFS—examined three

gunshot residue (“GSR”) kits and detected GSR on the “inside door face”

of the “outside door right side” of Jean’s door; on the stucco of the outside

door, right side; on the inside of the door trim; and on the back of Jean’s

left hand, which Castro believes may have been transferred by another

51
person onto Jean’s hand. (RR10.147-158; RR17.SX282). Castro could not

state how far Guyger was from Jean when she fired. (RR10.159-160).

Ranger Adcock—who took scans using the Leica scanner, a 3D-

device that rotates 360X290 degrees vertically over the top and is used to

calculate line-of-sight distances—explained that one round struck the

south wall at a 17-degree angle—plus-or-minus 5 degrees—traveling left-

to-right—which is the azimuth, the angle formed between a reference

direction and a line from the observer to a point of interest projected on

the same plane. (RR11.69-75, 91, 106; RR-Supp-3-SX255, p. 90):

52
Adcock did not perform a trajectory analysis of the round that struck

Jean. (RR11.77). Adcock measured the length from the center of the

doorway to the area in the apartment where Jean’s feet were to be 13-15

feet. (RR11.108-109).

Joshua Brown heard “two people meeting each other”

as though they were surprised to see each other, and
then heard two gunshots
Joshua Brown lived in apartment 1437 immediately across the hall

from Jean and was the witness nearest to what occurred. (RR9.223-225,

227, 238). Brown met Jean for the first time earlier that day and they

discussed how management came to their doors because they both were

smoking marijuana. (RR9.226-227).

53
 Brown explained that after he arrived home that evening and as he

rounded the corner down the hall from his apartment—although he could

not make out exactly what was said—he heard “two people meeting each

other” as though they were surprised to see each other, and then heard

two gunshots. (RR9.232-233, 240-241). He entered his apartment, and 2-

3 minutes later he looked through his peephole and saw Guyger on her

cellphone crying, saying that she “came into the wrong apartment.”

(RR9.236). Brown had never met Guyger; nor had he ever seen Guyger

in the building then. (RR9.238, 242).

Brown had lived in the building for about four months. (RR9.244).

Brown had entered the wrong floor “on a few occasions” and one time

while on the wrong floor—the third floor—walked to the wrong door—

apartment 1337—and inserted his fob into its lock. (RR9.244-245).

Guyger had no drugs or alcohol in her system

Detective Ibarra confirmed that the toxicology report of Guyger’s

blood that was drawn shortly after 3:00 a.m. on September 7, 2018

showed negative for drugs and alcohol. (RR9.149-151; RR17.SX16).

54
 Corporal Richardson’s investigation
Corporal Richardson obtained the warrant for the search of Jean’s

apartment. (RR9.153-155). Richardson saw Guyger’s keys dangling in

with her fob inside the lock. (RR9.156). When Richardson inserted

Guyger’s fob into the lock, the light turned red. (RR.9.158). When he

inserted Jean’s fob, the indicator light turned green. (RR.9.158-159).

Ranger Armstrong’s investigation and the problem

with doors and locks to Jean’s and other apartments
Ranger David Armstrong was the lead investigator. (RR10.18, 21;

RR11.65). He became involved on September 7, 2018 by the request of

the chief of the Dallas Police Department. (RR10.21). Armstrong joined

DPS in 2002. (RR10.16). In 2007, Armstrong joined SWAT. (RR10.18). He

became a Ranger in 2011 and is a sergeant. (RR10.20). He has assisted

or was lead investigator in many officer-involved shootings. (RR10.20).

Ranger Armstrong is a member of the Special Response Team,

which conducts operations similar to SWAT. (RR13.48). Armstrong

described the sensations that a person may experience when confronted

with a quickly evolving, tense, dynamic confrontation with a suspect,

which include: (1) auditory exclusion—where one may not hear at the

normal volume because of stress; (2) tunnel vision, when means that one

55
is focused only on what is directly in front of her and not on her periphery;

(3) short-term memory loss, which may be regained over time because

one’s mind is prioritizing tasks at that instant; and (4) a rapid heartrate

due to stress. (RR13.48-49).

Ranger Armstrong knew that Guyger had tried to open Jean’s door

because her keys were dangling from the lock. (RR9.290). There was no

forced entry. (RR9.309). During the investigation, Armstrong had

unintentionally parked on the wrong floor of the garage. (RR10.31).

Armstrong returned on September 8 with Rangers Daniel and

Matlock and DA Investigator LeNoir. (RR9.303; RR17.SX51). The

investigation revealed that the light sources inside Jean’s apartment

when the incident occurred were from a 50-inch television and a laptop

that was on the ottoman in front of the couch. (RR9.306-307).

In investigating the door and lock to Jean’s apartment, Armstrong

discovered that the strikeplate—where the throw for the deadbolt enters

to catch and secure the door—was bowed out, indicating that when the

strikeplate was installed, its screws had been overtorqued, causing the

strikeplate to bow (RR10.43-44; RR17.DX39-DX43):

56
57
The overtorqued strikeplate caused a crack inside the doorframe.

(RR10.45-46; RR17.SX26, DX40-DX41). Because the bottom of the

strikeplate was driven in too far, the gap between the wood and

strikeplate was exposed and the screws were torqued into the wood to the

point that the strikeplate was bowed into the area where the door throw

would sweep. (RR10.46).

On September 6, 2018, it had rained so there was humidity.

(RR10.47-49). In an experiment conducted in October 2018 when the

weather conditions were similar to September 6, 2018, Armstrong and

his team opened the door to Jean’s apartment numerous times, and each

time it did not completely close depending on the distance that the door

had been open before they let it go. (RR10.47, 50; RR17.SX26). The door

would “close” but not fully latch. (RR10.48; RR17.SX26).

On September 20, 2018, while assisting Armstrong, DPS Special

Agent Wallace interviewed resident George Lucas of apartment 1123,

who showed Wallace how the door to his apartment would not close

unless he pushed it for the latch to catch. (RR12.166-168).

On September 20, 2018, while assisting Armstrong, DPS Special

Agent Estes interviewed the resident of apartment 1226, who was

58
holding the door open with her foot but walked away to check on her

child. (RR12.169-171). The door did not close because it was not “square”

with frame and the latch did not catch, which would have enabled Estes

to open it from the hallway. (RR12.170).

Residents regularly parked on the wrong floor, walked

to the wrong apartment, attempted to enter the wrong
apartment, or entered the wrong apartment, or a
combination of these
Ranger Armstrong and his team interviewed 297 of the 349

residents of Southside Flats. (RR10.41). Armstrong discovered that:

• 71 tenants—44% of them—on floors three and four had

walked to the wrong apartment on the wrong floor (RR10.43);

• 23% of the tenants on floors three and four had gone to the

wrong door and inserted their fobs into the locks. (RR9.292-293;

RR10.42);

• 76 tenants—47% of them—on floors three and four had

unintentionally parked on the wrong floor (RR10.43);

• 93 tenants—32% of them—on all floors had unintentionally

parked on the wrong floor (RR10.43); and

59
 • 15% of all residents had gone to the wrong door and inserted

their fobs into the locks. (RR9.293; RR10.42).

Marc Lipscomb—an attorney who worked for Kirkland & Ellis—

lived with a roommate on the third floor in apartment 1300, a two-bed,

two-bath unit. (RR12.172-173, 181; RR17.DX80). Lipscomb had never

met Guyger or Jean. (RR12.173). Lipscomb had unintentionally parked

on the fourth floor 10-12 times. (RR12.173-174). Lipscomb described how

the entryway into the apartment building from the parking garage when

he was on the third floor was virtually identical to the same position

when he was on the fourth floor. (RR12.174-176; RR17.SX251, DX79).

Lipscomb never noticed the roofline of the apartment building from the

fourth-floor garage. (RR12.176). Nor did he recall anything that

distinguishes the third floor from the fourth floor. (RR12.177)

One time after walking his dog, Lipscomb used the stairwell, and

in error ascended one flight of stairs to the second floor rather than two

flights to the third floor. (RR12.180). He had not consumed any alcohol.

(RR12.185). Lipscomb walked to what he thought was his apartment

1300—but instead walked to apartment 1200, one floor directly beneath

his. (RR12.181-182, 188). He had not locked his door when he took his

60
dog for a walk. When he attempted to open the door to apartment 1200,

it was unlocked, so he gained entry. (RR12.182). Believing that he

entered his apartment, he proceeded past the kitchen countertop and saw

a purse, so he thought his roommate had a guest. (RR12.183). A woman

was sitting on the couch and looked surprised to see him. (RR12.183-184).

It was then that he realized he had walked into the wrong apartment.

(RR12.184).

Jessica Martinez—a teacher at Dallas ISD—had lived on the third

floor in apartment 1352 for about two years. (RR12.190-191). Once or

twice she unintentionally parked on the fourth floor. (RR12.196). She

could not differentiate between the third and fourth floors unless she

recognized vehicles as “markers” next to which she normally parked.

(RR12.196). She had unintentionally entered the wrong hall. (RR12.198).

Several times, Martinez’s fob would not work, and she had to complain

to management. (RR12.191-192). One time when she was home, a smelly,

toothless man who had a fob entered her apartment. (RR12.193).

Amy Rose had lived on the third floor in apartment 1380 for about

one year. (RR12.201). Once she unintentionally parked on the fourth

61
floor. (RR12.201). She walked all the way to what she thought was her

apartment before she realized she was on the wrong floor. (RR12.202).

On a burglary call, officers take a position of cover and

concealment, but if they entered their own homes and
saw an intruder, they would use deadly force. When
faced with a deadly threat, officers use their firearms
The DPD operating procedures for responding to a burglary call

instructs to maintain a perimeter, contain, cover—in case the suspect has

a weapon, and concealment—which is to hide behind something and

watch for an attempted escape. (RR8.170-175; RR17.SX312-SX313).

Officer Lee confirmed that if he received a dispatch-call that a burglary

may be in progress and he arrives alone, he is to take a position of cover

and concealment and give the burglar a chance to surrender. (RR9.62-65,

76). However, Lee explained that if he entered his own home and

believed that there was an intruder inside, he would not treat it like a

burglary call but would use deadly force if he perceived a deadly threat.

(RR9.76). Lee confirmed that in his experience living in an apartment,

maintenance men have never rummaged through his apartment late at

night with the lights turned off. (RR9.76-77).

62
 Ranger Adcock confirmed that when faced with a deadly threat,

officers are trained to use their firearms. (RR11.109-110). Officers would

not use a taser when faced with a deadly situation because tasers are a

less-lethal option. (RR11.109). Further, OC spray is not used in a deadly-

force situation or in an enclosed area because the spray does not have

enough room to disperse. (RR11.110).

When DPD Officer Blair arrived and saw Guyger—who identified

herself—he made sure that he could see her hands because “hands are

what’s gonna hurt you.” (RR12.206-210). Guyger was very emotional,

hysterical, and crying, and kept repeating that she thought she had

entered her apartment. (RR12.211). Blair entered Jean’s apartment and

began performing CPR. (RR12.211). Blair did not get blood on his hands

while performing CPR. (RR12.213). Blood got on Blair’s hands only when

he looked for the wound and touched its area. (RR12.213).

Blair described that his mind-set is different while off-duty versus

on-duty. (RR12.214). If Blair is dispatched to a possible burglary, he will

follow operating procedures, has time to formulate a plan with other

officers, and would seek cover and concealment unless confronted the

suspect. (RR12.216-217, 222). But if he arrived home, enters, and

63
discovers an intruder, he would immediately confront the intruder.

(RR12.217). Only if he had not entered his residence would he wait for

cover. (RR12.222-223).

Other witnesses heard the gunshots or saw Guyger, or

both
Ronald Jones entered the garage at 9:53 p.m.—9:50 p.m. time-

stamped. (RR10.69-74). The gate was open. (RR9.249-251; RR17.SX258-

SX260). Jones drove to the fourth floor and parked. (RR9.252). Jones saw

Guyger drive her white truck fast around the corner and park on the

fourth floor. (RR9.253, 260). Jones had never seen a uniformed officer on

the fourth floor. (RR9.253-255). A few minutes after Jones entered his

apartment, he heard two gunshots in quick succession. (RR9.257, 265).

Ronald Jones heard Guyger repeatedly saying “there was someone in my

apartment.” (RR9.258).

Madamanchi—a software engineer—had lived for about five

months in apartment 1474—two doors from Jean’s apartment. (RR9.269-

272, 279-280). On September 6, while he was on a Skype call, he heard

two gunshots in quick succession. (RR9.273). Madamanchi’s wife parked

on the wrong floor once. (RR9.280).

64
 Taydra Jones had lived in apartment 1482 for about four months,

two doors down from Jean. (RR10.95-96; RR17.SX34B). While watching

television and speaking on the phone, she heard two gunshots in quick

succession. (RR10.97). She peered through the peephole of her door and

saw Guyger walking in a panicked mode. (RR10.99-100). She had never

seen Guyger before. (RR10.100-101).

Whitney Hughes had lived in apartment 1439 for about two

months, across the hall and one door down from Jean. (RR10.105-106,

112-113; RR17.SX34B). While watching television, she heard two

gunshots in quick succession. (RR10.107). Hughes peered through her

peephole and saw Guyger speaking on a cellphone upset and crying.

(RR10.108-109). Hughes had never seen Guyger before. (RR10.110).

Hughes had a problem with her door because when it was humid

due to rain, the deadbolt would not enter the socket because the

strikeplate was installed unevenly with the deadbolt. (RR10.110-111,

124-127). This forced her to pull the door to lock it. (RR10.124, 127).

Hughes had parked on the wrong floor two times. (RR10.113). Once

she parked on the third floor by mistake and walked to apartment 1339—

directly below her apartment 1439—and did not notice a distinctive

65
“river rocks” colored doormat near her apartment and believed that the

vase in front of apartment 1384 was added recently. (RR9.244-245;

RR10.120-121, 145; RR17.SX76). Hughes put her fob into the lock of

apartment 1339, and only when it flashed “red” did she realize that she

was on the wrong floor. (RR10.123, 128). Hughes did not look at the

apartment number on the glass to the left of the door before she inserted

her fob. (RR10.124).

Alyssa Kinsey had lived in apartment 1480 next door to Jean for

about four months. (RR10.129, 132; RR17.SX34B). While chatting via

Facetime, she heard “a very loud sort of metallic sound...like two parts to

one noise...,” which she realized were two gunshots in quick succession.

(RR10.133-134). Kinsey looked through her peephole and could not see

anything but heard a female call 9-1-1. (RR10.133). Once when Kinsey

was on the phone, she parked in error on the third floor, believing she

was on the fourth floor. (RR10.137-138).

Shanel Bly had lived in apartment 1384 for about two years, three

doors down from Guyger. (RR10.141-143; RR17.SX34B). That night, she

heard what she thought was a gunshot. (RR10.143).

66
IX. Summary of the Arguments
In Issue 1, Guyger argues that the evidence was legally insufficient

to prove beyond reasonable doubt that she committed Murder. In the

alternative, Guyger argues in Issue 2 that the evidence was legally

insufficient to prove that she committed Murder but was sufficient to

prove that she committed Criminally Negligent Homicide. Guyger asks

this Court to reverse the Judgment and sentence and: (1) per Issue 1,

acquit her of Murder; or (2) in the alternative per Issue 2, acquit her of

Murder, convict her of Criminally Negligent Homicide, and remand for a

new trial on punishment.

67
X. Argument
Issue 1: 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.
Introduction
Mark Twain wrote that “[T]ruth is stranger than fiction, but it is

because Fiction is obliged to stick to possibilities; Truth isn’t.” Mark

Twain, Following the Equator: A Journey Around the World, ch. 15, p.

156, AMS Press (1897). What happened to Mr. Jean was awful and could

not have been written in a fictional setting because what occurred

leading up to and at about 9:59 p.m. on September 6, 2018 is implausible.

But it happened because of a malfunction in the lock to Jean’s door,

the absurd design of the building and its attached garage, and the

incompetent management of Southside Flats. Amber Guyger—a well-

regarded police officer returning home after working nearly 14 hours that

day—entered Jean’s apartment 1478 believing it was her apartment and

opened fire on Jean, believing that he was an intruder. Had Guyger

68
entered her apartment 1378, she would have been justified in shooting

the intruder. She would not have even had to yell at the intruder to show

his hands as she did here.

But Guyger did not enter her apartment. She entered Jean’s

apartment and shot who she thought was an intruder based on a

reasonable mistake of fact that it was her apartment and an intruder was

inside. What happened to Jean was awful. But it was not Murder under

any theory of Tex. Penal Code § 19.02(b). Guyger asks this Court to

render reverse the Judgment and sentence and render a judgment of

acquittal.

Standard of review for legal sufficiency

Due process requires that a conviction be supported by proof beyond

a reasonable doubt regarding each essential element of the alleged

offense as determined by a rational trier of fact. Laster v. State, 275

S.W.3d 512, 517 (Tex.Crim.App. 2009); Jackson v. Virginia, 443 U.S. 307,

316-319 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012)

(same); U.S. Const. Amend. V; U.S. Const. Amend. XIV. When measuring

legal sufficiency, rather than use the charge given to the jury, “[t]he

elements of the offense defined by a hypothetically correct jury charge

69
are used...” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997);

Musacchio v. United States, 136 S.Ct. 709, 715 (2016) (When a jury

instruction sets forth the elements of the charged crime but incorrectly

adds an element, a sufficiency challenge should be assessed against the

elements of the charged-crime).

After giving “proper deference”—and not total deference—to the

trier of fact, an appellate court must “uphold the verdict unless a rational

factfinder had reasonable doubt as to any essential element.” Laster, 275

S.W.3d at 518. A reviewing court “must presume...that the trier of fact

resolved...conflicts in favor of the prosecution and must defer to that

resolution.” Jackson, 443 U.S. at 326. However, a “mere modicum” of

incriminating evidence cannot “by itself rationally support a conviction

beyond a reasonable doubt.” Jackson, 443 U.S. at 319; Padilla v. State,

326 S.W.3d 195, 200 (Tex.Crim.App. 2010) (same). Should an appellate

court find that the evidence is insufficient, the court should reverse the

conviction and enter a judgment of acquittal. Tex. Code Crim. Proc. Art.

44.25 (2020); Tex. Rule App. Proc. 43.2(c) (2020).

The reviewing court considers all evidence in the record whether

admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767

70
(Tex.Crim.App. 2013) (regardless of whether dog-scent lineup evidence

was properly admitted, it is properly considered in a review of the

sufficiency of the evidence); Dewberry v. State, 4 S.W.3d 735, 740

(Tex.Crim.App. 1999) (inadmissible hearsay evidence that may have

been improperly admitted is considered in a legal sufficiency review).

The standard of proof when considering legal sufficiency of

circumstantial evidence is the same as with “direct evidence,” and a

reviewing court may consider the existence of all alternative reasonable

hypotheses. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). A

reviewing court considers whether the inferences necessary to establish

guilt are reasonable based on the cumulative force of all the evidence in

the light most favorable to the jury’s verdict. Hooper, 214 S.W.3d at 13.

A factfinder may draw reasonable inferences supported by the evidence,

but “[t]heorizing or guessing as to the meaning of the evidence is never

adequate to uphold a conviction because it is insufficiently based on the

evidence to support a belief beyond a reasonable doubt.” Cary v. State,

507 S.W.3d 761, 766 (Tex.Crim.App. 2016). (emphasis supplied).

71
 Standard of review for legal insufficiency when a
defensive claim is asserted
When a defensive claim like self-defense is asserted, the standard

of review for legal sufficiency is the same except that the defendant bears

the burden to produce evidence supporting the claimed defense, while the

State bears the burden of persuasion to disprove it and prove beyond a

reasonable doubt that the defendant committed each essential element

of the offense. Saxton v. State, 804 S.W.2d 910, 913-914 (Tex.Crim.App.

1991), Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003), and

Krajcovic v. State, 393 S.W.3d 282, 286 (Tex.Crim.App. 2013). As

explained in Saxton, 804 S.W.2d at 913-914,

“In resolving the sufficiency-of-the-evidence issue, we look not

to whether the State presented evidence (that) refuted (a
defendant’s) self-defense testimony, but rather...whether
after viewing all the evidence in the light most favorable to
the prosecution, any rational trier of fact would have found
the essential elements of (the charged offense) beyond a
reasonable doubt and also would have found against (the
defendant) on the self-defense issue beyond a reasonable
doubt.”).

To decide under Saxton whether the jury would have found: (1) the

essential elements of the charged offense beyond a reasonable doubt, and

(2) against the defendant on the self-defense issue beyond a reasonable

72
doubt, a court examines the totality of the evidence. Vodochodsky v.

State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005).

The hypothetically correct jury instructions

There are a few material differences between the instructions

submitted to the jury (CR.2557-2571) and the hypothetically correct jury

instructions. First, the contained the definitions for the mens rea of

intent and knowledge (CR.2557-2558) per Tex. Penal Code § 6.03(a) & (b)

(2018) but were missing the definition for the mens rea of Criminal

Negligence per Tex. Penal Code § 6.03(d). The instructions should also

define the lesser-included offense of Criminally Negligent Homicide per

Tex. Penal Code § 19.05 (2018).

Third, the instructions contained the definition for the mens rea of

recklessness per Tex. Penal Code § 6.03(c) in error. (CR.2560). This will

be explained in Issue 2, but only the mens rea for criminal negligence

should have been submitted.

Fourth, the mistake-of-fact instruction (CR2565-2566) should not

have included “Manslaughter” and should have contained “Criminally

Negligent Homicide” per Tex. Penal Code § 19.05 (2018).

73
 When deadly force in self-defense is justified
A person is justified in using nondeadly force “when and to the

degree” the person “reasonably believes the force is immediately

necessary” for protection against the complainant’s use or attempted use

of unlawful force. Tex. Penal Code § 9.31(a) (2018). “Reasonable belief”

is the belief held by an ordinary and prudent person in the same

circumstances as the defendant. Tex. Penal Code § 1.07(a)(42) (2018);

Werner v. State, 711 S.W.2d 639, 645 (Tex.Crim.App. 1986) (discussion of

the “reasonable person”). A jury must view the reasonableness of the

person’s actions from her standpoint. Ex parte Drinkert, 821 S.W.2d 953,

955 (Tex.Crim.App. 1991). “Unlawful” means criminal or tortious. Tex.

Penal Code § 1.07(a)(48) (2018).

If a person’s belief is reasonable, actual danger is not

required, and the person may use force to protect against an apparent

danger. Jones v. State, 544 S.W.2d 139, 142 (Tex.Crim.App. 1976)

(emphasis supplied) (the TCCA consistently held that if the evidence

raises the issue of apparent danger, in instructing the jury on the law of

self-defense a court must tell it that a person has a right to defend from

apparent danger to the same extent as he would had the danger been

74
real—provided he acted upon a reasonable apprehension of danger as it

appeared to him from his standpoint at the time); see also Torres v. State,

7 S.W.3d 712, 715 (Tex.App.-Houston [14th Dist.] 1999) (same); Hamel v.

State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996) (same); Broussard v.

State, 809 S.W.2d 556, 559 (Tex.App.-Dallas 1991) (A person has the

right to defend herself if acting on the reasonable apprehension of danger

as it appeared at the time).

If the person reasonably believed that the complainant’s use of force

was unlawful, it is irrelevant whether the complainant’s use of force was

unlawful or even real. Dyson v. State, 672 S.W.2d 460, 462-463

(Tex.Crim.App. 1984). In Dyson, the TCCA held that since the defendant

used deadly force, there must be some evidence to satisfy Tex. Penal Code

§§ 9.31 and 9.32, so the evidence must show that the defendant

reasonably believed that deadly force was immediately necessary to

protect himself against another’s use or attempted use of unlawful force.

Id. at 463. That the defendant was not in fact attacked by his brother is

immaterial. Id. (emphasis supplied): “A person has a right to defend

from apparent danger to the same extent as he would (have) had the

75
danger been real; provided he acted upon a reasonable apprehension of

danger as it appeared to him at the time.” Id.

A person who claims a defense must admit to committing an

intentional act against the complainant and assert that the act was

justified under the circumstances—or at least not challenge that the act

occurred. Sanders v. State, 707 S.W.2d 78, 81 (Tex.Crim.App. 1986);

(Evidence that is a defense requires the accused to admit the commission

of the offense—but to justify or excuse his actions so as to absolve him of

criminal responsibility for engaging in conduct which otherwise

constitutes a crime.); Ford v. State, 112 S.W.3d 788, 794 (Tex.App.-

Houston [14th Dist.] 2003, no pet.) (To raise self-defense, the defendant

must admit the offense and offer self-defense as a justification).

Under Tex. Penal Code § 9.01(3) (2018), deadly force is force

intended or known by the person to cause—or in the manner of its use or

intended use—is capable of causing death or serious bodily injury. Under

Tex. Penal Code § 9.32(a) (2018), a person is justified in using deadly

force:

(1) if she would be justified in using force against the complainant

under Tex. Penal Code § 9.31(a); and

76
 (2) when and to the degree the person reasonably believes the

deadly force is immediately necessary: (A) to protect the person against

the complainant’s use or attempted use of unlawful deadly force, or (B)

to prevent the complainant’s imminent commission of aggravated

kidnapping, murder, sexual assault, aggravated sexual assault, robbery,

or aggravated robbery.

Under Tex. Penal Code § 9.32(b) and Braughton v. State, 569

S.W.3d 592, 606-607 (Tex.Crim.App. 2018), the person’s belief under Tex.

Penal Code § 9.32(a)(2) that deadly force was immediately necessary is

presumed reasonable if the person:

(1) knew or had reason to believe that the complainant: (A)

unlawfully and with force entered—or was attempting to enter

unlawfully and with force—the person’s occupied habitation, vehicle, or

place of business or employment; (B) unlawfully and with force

removed—or was attempting to remove unlawfully and with force—the

complainant from her habitation, vehicle, or place of business or

employment; or (C) was committing or attempting to commit aggravated

kidnapping, murder, sexual assault, aggravated sexual assault, robbery,

or aggravated robbery;

77
 (2) did not provoke the complainant; and

(3) was not engaged in criminal activity other than a Class C

misdemeanor or ordinance regulating traffic when the force was used.

The use of force is not justified: (1) in response to verbal

provocation alone; (2) to resist an arrest or search that the person knows

is being made by a peace officer; (3) if the person consented to the exact

force used or attempted by the complainant; (4) if the person provoked

the complainant’s use or attempted use of unlawful force unless the

person abandons the encounter or clearly communicates to the

complainant her intent to do so, reasonably believing she cannot safely

abandon the encounter, and the complainant continues or attempts to

use unlawful force against the person; or (5) if the person sought an

explanation from or discussion with the complainant their differences

with the complainant while the person was unlawfully carrying a weapon

or transporting a prohibited weapon. Tex. Penal Code § 9.31(b); Miranda

v. State, 350 S.W.3d 141, 148-149 (Tex.App.-San Antonio 2011) (use of

force in self-defense); Contreras v. State, 73 S.W.3d 314, 319 (Tex.App.-

Amarillo 2001) (the threat must be immediate).

78
 Through mistake, Guyger formed a reasonable
belief about a matter of fact—that she entered her
apartment and there was an intruder inside—and
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
If Guyger had entered her apartment 1378 on the third floor, she

would have been justified shooting who she reasonably believed was an

intruder. Guyger’s belief that her use of deadly force was immediately

necessary would have been presumed reasonable under Tex. Penal

Code § 9.32(b), Braughton, 569 S.W.3d at 606-607, and Tex. Penal Code

§ 9.32(a)(2) because Guyger:

(1) knew or had reason to believe that the intruder: (A) unlawfully

and with force entered—or was attempting to enter unlawfully and with

force—Guyger’s habitation...(C) was committing or attempting to commit

aggravated kidnapping, murder, sexual assault, aggravated sexual

assault, robbery, or aggravated robbery;

(2) did not provoke the intruder; and

(3) was not otherwise engaged in criminal activity.

79
Guyger’s use of force had she entered her apartment would have not

been: (1) in response to verbal provocation alone; (2) to resist an

arrest/search; (3) by consent; (4) due to her provocation; or (5) due to

Guyger seeking an explanation concerning differences. Tex. Penal Code

§ 9.31(b); Miranda, 350 S.W.3d at 148-149. And threat to Guyger would

have been immediate. Contreras, 73 S.W.3d at 319.

However, Guyger did not enter her apartment. By a clear mistake

of fact, she entered Jean’s apartment 1478 on the fourth floor—

reasonably believing that she was entering her apartment. This fits

squarely within the defense of mistake of fact under Tex. Penal Code §

8.02 (2018) since:

(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 under Tex. Penal Code §

9.32(b) and Braughton , 569 S.W.3d at 606-607, and deadly force was

immediately necessary and reasonable under the circumstances.

80
 A rational jury would have concluded that Guyger
was reasonable in her belief that she entered her
apartment, saw an intruder who did not show his
hands, and was justified in using deadly force in
self-defense
The mistake-of-fact defense must be based on a reasonable belief

about a matter of fact. The hypothetically correct mistake-of-fact

instructions would have caused a rational jury to conclude that Guyger

was reasonable in her belief that she entered her apartment and was

justified in using deadly force in self-defense. Guyger’s belief that she

entered her apartment and saw what she believed was an intruder—was

reasonable. Thompson v. State, 236 S.W.3d 787, 800 (Tex.Crim.App.

2007) (The mistake of fact must be reasonable for it to exculpate the

defendant of the offense charged, and the defendant would still be guilty

of any lesser-included offense that is applicable if the facts were as the

defendant believed).

Despite the tragic consequences, considering all the evidence—

whether admissible or inadmissible, see Winfrey, 393 S.W.3d at 767—

Guyger acted reasonably. Because her belief was reasonable, actual

danger was not required, and Guyger was entitled to use deadly force

to protect against the apparent danger. Jones, 544 S.W.2d at 142.

81
Guyger was entitled to the mistake-of-fact instruction since it was raised

by the evidence—and although she would have been entitled to it even if

the evidence were weak or controverted—here the evidence was strong

and uncontroverted. Allen v. State, 253 S.W.3d 260, 267 (Tex.Crim.App.

2008).

The evidence shows 48 distinct factual points proving that what

occurred was a clear mistake of fact and Guyger acted reasonably under

the circumstances:

1. Guyger was a highly capable, competent, and qualified police

officer. (RR8.161, 198). Between September 3-5, 2018, she worked 30.25

hours. (RR9.166-168; RR17.SX.19). On September 6, 2018, Guyger

worked 13.8 hours (RR9.289; RR17.SX40, p. 1), assisting SWAT in

locating robbery suspects. (RR8.163; RR12.54-55). From September 3-6,

she had worked 44 hours, which reasonably caused fatigue;

2. Shortly after she left work at 9:38 p.m., Guyger received a call

from Rivera, which lasted until 9:55 p.m. (RR10.89). They spoke about

work and Rivera’s Boy Scout activities with his children. (RR12.63-64).

Guyger was on the phone with Rivera when she pulled into the parking

82
garage (RR12.65). Speaking on the phone while driving is an everyday

distraction for tens of millions of Americans;

3. In the parking garage, the only indicator of what floor one is

on are signs in front of the reserved parking signs and small black

placards with floor numbers on the inside frames of the elevators.

(RR10.30-31, 224-225, 229; RR11.60, 66; RR17.SX68, SX83, SX261). The

third and fourth floor of the garage approaching the entry into the

building are indistinguishable (RR12.174-175; RR17.SX251, DX79). This

caused confusion for many residents;

4. In error, Guyger drove to the fourth floor and parked her truck

by backing into a spot that was in the direct line of sight of the entryway

into the building. (RR9.253, 260; RR10.33; RR12.65-66; RR17.SX170,

SX175-SX176);

5. These problems were glaring and obvious. After the incident,

Southside Flats labeled the entryways with floor numbers (RR10.31-32),

showing that they recognized this problem;

6. Guyger exited her truck and began walking towards what she

thought was the third floor (RR12.70-71), which was the result of her not

realizing the floor because of the lack of indicators;

83
 7. Guyger was in full police uniform (RR9.257-258), carrying in

her left hand and arm her heavy vest, lunchbox, and backpack because

she was trained to keep her right hand—on the side where her firearm is

holstered—free. (RR12.70-71). Attached to her utility belt was a police

radio, two handcuffs, her pistol, a taser, two additional magazines for her

pistol, a knife, OC spray, and a flashlight. (RR9.257-258; RR10.219-224;

RR11.99-102; RR12.67-68; RR17.SX53-SX57, SX253, SX74-SX76, DX74-

DX76). Guyger was carrying a lot of equipment for a woman with a small

frame. Carrying things that obscure vision is an everyday occurrence for

many people;

8. As Guyger walked down the hallway of the fourth floor, the

only clues distinguishing it from the third floor were the vase by

apartment 1384 (RR9.244-245; RR10.145; RR17.SX76) and in front of

Jean’s apartment, a half-circle red doormat. (RR11.135-137; RR17.SX95,

SX97, SX267). Guyger simply missed these clues. Otherwise, the

hallways look alike, and the apartment numbers are on mirrored glass to

the left of each door frame, out of one’s direct line of sight while looking

at the doors. (RR10.38; RR17.DX47-DX49, DX51);

84
 9. Except for the doormat, the outsides of apartments 1378 and

1478 are identical. (RR10.40). Like all the apartments, the numbers are

not on the doors or immediately next to the doors but are on an elevated

gold panel about a foot to the left of the doors. (RR9.215; RR10.216, 228,

232; RR17.SX80-SX81, SX95, SX97). A person who is 5’6” must look up

and to the left to see the number, and Guyger is 5’3”. (RR9.284; RR12.76,

178). Guyger simply missed this like many other residents;

10. Guyger had no drugs or alcohol in her system so she was not

inattentive due to intoxicants. (RR9.150-151; RR17.SX16);

11. Guyger walked to what she thought was her apartment based

on the door’s location in the hallway, which was reasonable since Jean

lived immediately above Guyger. (RR9.90-91, 189-194; RR17.SX31,

SX34-SX35; SX70-SX86). This happened to many other residents;

12. When Guyger arrived to what she thought was her apartment

1378, she inserted her fob into the lock and turned it left. (RR9.107-108,

156, 290; RR10.68; RR12.73-74, 79-80; RR17.SX98). The light blinked

“red” because the lock did not recognize the fob. (RR9.158, 210-211).

However, the door was cracked open and her turning the fob caused the

door to open more. (RR12.80, 82). This is critical because had Jean’s lock

85
been installed properly or the door had been locked, Guyger would not

have gained entrance;

13. Guyger’s description of how the door opened and was not

locked was corroborated by:

 (1) no signs of forced entry (RR9.108; RR10.214);

 (2) Ranger Armstrong discovered that the strikeplate was

bowed out, so when it was installed, its screws were overtorqued,

causing the strikeplate to bow (RR10.43-44; RR17.DX39-DX43);

 (3) the overtorqued strikeplate caused a crack inside the

doorframe (RR10.45-46; RR17.SX26, DX40-DX41);

 (4) Because the bottom of the strikeplate was driven too far

into the doorframe, the gap between the wood and strikeplate was

exposed and the screws were torqued into the wood to the point

where the strikeplate was bowed into the area where the door throw

would sweep (RR10.46); and

 (5) on September 6, 2018, it had rained so there was humidity

(RR10.47-49). In October 2018 when the weather conditions were

similar to September 6, 2018, Armstrong and his team opened the

door to Jean’s apartment numerous times. Each time it did not

86
 completely close depending on the distance that the door had been

open before they let it go (RR10.47, 50; RR17.SX26), causing it to

be “closed” but not latched. (RR10.48; RR17.SX26);

14. Guyger heard loud shuffling and someone walking inside the

apartment. (RR12.81). Guyger believed that there was an intruder in

what she reasonably believed was her apartment;

15. While holding her equipment in her left arm, she used it to

fully open the door. (RR12.85-86). This occurred in two seconds or less.

Guyger was terrified, believing that someone was inside her apartment.

(RR12.82-83). This shows how little time Guyger had to react while

entering what she reasonably thought was her apartment, believing

there was an intruder inside;

16. She did not see a light on inside and it was dark inside.

(RR12.84). The photos in SX295-SX303 were brightened and did not

depict the lighting conditions inside. (RR9.47-49). The only sources of

light were from the 50-inch television and a laptop on the ottoman in

front of the couch. (RR9.306-307);

17. Guyger dropped her equipment in front of the door to keep it

propped open. (RR12.86). She entered, believing it was her apartment.

87
Once inside, her belief that she was in her apartment was still reasonable

since 1378 and 1478 had the same floor plan, and the kitchen,

countertops, couches, and televisions were in the same places. (RR9.193;

RR10.24-26, 29; RR17.SX33, DX32-DX38). She immediately saw a

silhouette figure of a well-developed 6’1” and 247-pound man—far larger

than her 5’3” petite frame—standing in the back of the apartment.

(RR9.284; RR10.173; RR12.76, 84-85; RR17.SX53-SX56). Thus, the

person Guyger thought was an intruder was 10 inches taller than her

and nearly twice her size, which would terrify any reasonable person;

18. The distance between the front door and the back of the

apartment is about 30 feet. (RR12.87-88). Standing just inside, Guyger

pulled her pistol and yelled at the figure, “Let me see your hands. Let me

see your hands.” (RR12.85, 88). Guyger could not see the figure’s hands.

(RR12.85). The figure—who unbeknownst to Guyger was Jean—walked

towards Guyger at a fast pace, yelling “hey, hey, hey.” (RR12.86, 88). Jean

was clearly as surprised to see Guyger as she was to see Jean;

19. As Officer Blair confirmed, police training required them to

see a suspect’s hands since “hands are what’s gonna hurt you.”

88
(RR12.206-210). Guyger thus reacted based on her training and common

sense;

20. The interaction between Guyger and Jean was corroborated

by Brown, who heard “two people meeting each other” as though they

were surprised to see each other. (RR9.232-233, 240-241);

21. Guyger believed she was in mortal danger because: (1) of the

circumstances, and (2) she could not see his hands. (RR12.86). Her

complete attention was on him. (RR12.90). Guyger fired two rounds—a

“double tap” as she was trained—one struck the south wall, and the other

struck Jean about 0.5 inches above his left nipple. (RR10.174-179, 189,

196; RR12.89, 118; RR11.73; RR17.SX268-SX270);

22. Guyger fired because she thought an intruder was inside what

she thought was her apartment was going to kill her. (RR12.89). Guyger

intended to shoot to kill and was trained to shoot suspects in the torso

(RR8.202; RR12.124);

23. Jean fell near the entryway into the bedroom, his feet in front

of the television (RR10.27-28; RR17.DX36), so he had walked toward

Guyger as she asserted;

89
 24. GSR was detected on the “inside door face” of the “outside door

right side” of Jean’s door; on the stucco of the outside door, right side; and

on the inside of the door trim. (RR10.147-158; RR17.SX282). The shell-

casings fell in the kitchen-area, just inside the main walkway. (RR10.65,

237; RR17.SX.106, SX140). This confirms that Guyger fired from where

she said;

25. Guyger walked to the kitchen counter and realized that she

was not in her apartment because of the Ottoman in the middle of the

floor. (RR12.89-90). She noticed the light from the television. (RR12.90).

She realized that she did not know the person. (RR12.90). This prompted

her to immediately take emergency measures;

26. At 9:59 p.m., while holding her cellphone in her right hand,

Guyger called 9-1-1. (RR9.14-18; RR12.91; RR17.SX4, SX4A, SX5, p. 3,

SX20). Using her left hand, Guyger began performing chest-compressions

on Jean. (RR12.91). Guyger had never performed CPR in an emergency

situation. (RR12.90). During the call—while panicked—Guyger told the

operator that she is an off-duty DPD officer, repeatedly stated that she

thought she was in her apartment, she shot a guy thinking that he was

90
an intruder, she thought she had parked on the third floor, and she

thought she was on her floor. (RR17.SX4. SX4A);

27. Numerous residents heard the gunshots and saw or heard

Guyger in a panicked mode calling 9-1-1 or exclaiming that she entered

the wrong apartment. (RR9.236, 273; RR10.97-100, 108-109, 133-134,

142-143; RR17.SX34B). This confirms Guyger’s description of what

occurred and that she reasonably believed that she was entering her

apartment and that there was an intruder inside;

28. No residents had seen Guyger or a police officer before on the

fourth floor (RR9.238, 242, 253-255; RR10.100-101, 110). This supports

the conclusion that Guyger walked to the fourth floor in error;

29. There was no blood visible on Guyger’s hands, and Officer

Lee—who performed CPR—did not get blood on his hands. (RR9.71).

Officer Blair—who also performed CPR—got blood on his hands only

when he looked for the wound and touched it. (RR12.211-213). This

eliminates speculation that Guyger had not taken emergency measures;

30. When paramedic Fairleigh performed chest-compressions,

blood came out of the wound. (RR9.181);

91
 31. During the 9-1-1 call, the dispatcher asked Guyger where she

was, and Guyger did not know. (RR12.91). Guyger had to go outside to

look at the apartment’s number. (RR12.91). She turned on a light.

(RR12.92). She went back to Jean and began performing a sternum rub,

which she had seen performed by paramedics. (RR12.92-93). She wanted

Jean to keep breathing. (RR12.93). This shows that continued emergency

measures, did not know where she was, and entered Jean’s apartment

by mistake;

32. At 10:02, Guyger texted Officer Rivera, “I need you. Hurry.”

(RR10.90). At 10:03, Guyger texted Rivera, “I fucked up.” (RR10.90).

These texts show her panicked state of mind and confirm that she

mistakenly believed that she had entered her apartment;

33. Responding officers saw Guyger upset and emotional.

(RR9.69-70; RR12.211; RR17.SX6 at 3:12). Guyger was removed from the

scene per protocol and taken downstairs to Valentine’s squad car.

(RR9.70; 108-111);

34. Guyger’s use of force was reasonable because when faced with

a deadly threat, officers are trained to use their firearms. (RR11.109-

110). Although Guyger had a taser, officers are trained to not use them

92
when faced with a deadly situation. (RR11.109). Although Guyger had

OC spray, officers are trained to not use it in a deadly-force situation or

in an enclosed area because the spray does not have enough room to

disperse. (RR11.110);

35. Guyger’s entering the apartment—rather than cover-and-

concealment and calling for backup—was reasonable. She was not

responding to a burglary call but was entering what she thought was her

apartment. DPD procedures for responding to a burglary requires

officers to cover-and-conceal and call for backup. (RR8.170-175; RR9.62-

65, 76; RR12.214-217, 222; RR17.SX312-SX313). But as Officer Lee

explained, if he entered his home and believed that there was an

intruder inside, he would not treat it like a burglary call but would use

deadly force if he perceived a deadly threat. (RR9.76). Officer Blair

confirmed the same, explaining that if he arrived home, entered, and

discovered an intruder, he would immediately confront him. (RR12.217);

36. Officer Lee confirmed that in his experience living in an

apartment, maintenance men never rummaged through his apartment

late at night with the lights turned off. (RR9.76-77). This eliminates

speculation that the person Guyger thought was an intruder may have

93
been an employee. Further, employees do not appear unannounced late

at night and work with the lights turned off;

37. Guyger’s reaction in the few seconds between hearing and

seeing what she reasonably believed was an intruder in her apartment

and her firing was explained by Ranger Armstrong’s descriptions of the

sensations that a person may experience when confronted with a quickly

evolving, tense, dynamic confrontation with a suspect: (1) auditory

exclusion—where one may not hear at the normal volume because of

stress; (2) tunnel vision, when means that one is focused only on what is

directly in front of her and not on her periphery; (3) short-term memory

loss, which may be regained over time because one’s mind is prioritizing

tasks at that instant; and (4) a rapid heartrate due to stress (RR13.48-

49);

38. It is not clear whether Jean knew there was a problem with

his lock and door. But he had not reported this security issue to

management since regional manager Gibralter was not aware of them.

(RR9.214). Nor was it reported to Gibralter that when humidity was

high, the door would not completely shut because of the way the strike

plate was installed. (RR9.214-215);

94
 39. Other tenants had problems with their doors not closing, like

Lucas of apartment 1123 (RR12.166-168), the door to apartment 1226,

which did not close because it was not “square” with frame and the latch

did not catch, which would have enabled one to open it from the hallway

(RR12.169-171), and Hughes’s door, whose deadbolt would not enter the

socket because the strikeplate was installed unevenly with the deadbolt,

which forced her pull the door to lock it. (RR10.110-111; 124-127);

40. Due to the garages, entryways, and hallways being

indistinguishable between floors, numerous residents had parked on the

wrong floor or went to the wrong apartment at least once. Some had done

so multiple times. (RR9.244-245, 280);

41. Of the 297 out of 349 residents interviewed by Armstrong and

his team (RR10.41):

 71 tenants—44% of them—on floors three and four had

walked to the wrong apartment on the wrong floor (RR10.41-43);

 23% of the tenants on floors three and four had gone to the

wrong door and inserted their fobs into the locks. (RR9.292-293;

RR10.42);

95
  76 tenants—47% of them—on floors three and four had

unintentionally parked on the wrong floor (RR10.43);

 93 tenants—32% of them—on all floors had unintentionally

parked on the wrong floor (RR10.43); and

 15% of the residents in the entire building had gone to the

wrong door and inserted their fobs into the locks. (RR9.293;

RR10.42).

42. Kinsey parked on the wrong floor once while speaking on her

phone. (RR10.137-138);

43. Brown had entered the wrong floor “on a few occasions” and

one time while on the wrong floor—the third floor—walked to the wrong

door—apartment 1337—and inserted his fob into the lock of apartment

1337. (RR9.244-245);

44. Hughes had parked on the wrong floor of the garage two

times. (RR10.113). Once she parked on the third floor by mistake and

walked to apartment 1339—directly below her apartment 1439—and did

not notice a distinctive “river rocks” colored doormat near her apartment

and believed that the vase was added recently. (RR10.120-121). Hughes

put her fob into the lock to apartment 1339, and only when it flashed

96
“red” did she realize that she was on the wrong floor. (RR10.123, 128).

Hughes did not look at the apartment number on the glass next to the

door before she inserted her fob. (RR10.124);

45. Once or twice, Jessica Martinez unintentionally parked on the

fourth floor. (RR12.196). She could not differentiate between the third

and fourth floors unless she recognized vehicles as “markers” next to

which she normally parked. (RR12.196). She unintentionally entered the

wrong hall on the wrong floor. (RR12.198). Several times, her fob would

not work. (RR12.191-192). One time when she was home, a smelly,

toothless man with a fob entered her apartment. (RR12.193);

46. Amy Rose once unintentionally parked on the fourth floor.

(RR12.201). She walked to what she thought was her apartment door

before she realized she was on the wrong floor. (RR12.202).

47. Lipscomb lived with a roommate in apartment 1300.

(RR12.172-173, 181; RR17.DX80), and:

 had never met Guyger or Jean. (RR12.173);

 unintentionally parked on the fourth floor 10-12 times.

(RR12.173-174);

97
  described how the entryway into the building on the third

floor was virtually identical to the fourth floor. (RR12.174-177;

RR17.SX251, DX79);

 never noticed the roofline of the building from the fourth-

floor garage. (RR12.176);

 Once in error ascended one flight of stairs to the second floor

rather than two flights to the third floor. (RR12.180). He had not

consumed alcohol. (RR12.185). He walked to what he thought was

his apartment—1300—but instead walked to 1200, one floor

directly beneath his. (RR12.181-182, 188). He had not locked his

door when he had left, and when he attempted to open the door to

1200, it was unlocked so he entered. (RR12.182). Believing that he

entered his apartment, he walked past the kitchen countertop and

saw a purse, so he thought his roommate had a guest. (RR12.183).

A woman sitting on the couch looked surprised to see him.

(RR12.183-184). It was only then that Lipscomb realized he had

walked into the wrong apartment. (RR12.184); and

48. Even Ranger Armstrong unintentionally parked on the wrong

floor of the garage. (RR10.31). Armstrong—a highly competent and

98
experienced law enforcement officer—was investigating, knew what had

happened to Guyger, and yet the layout of Southside Flats was so

confusing that even Armstrong made the same mistake as Guyger and

many other tenants.

The facts of this case appear to be unprecedented,

but Jaggard v. Dickinson—a case based on the
mistake-of-fact defense with remarkable
similarities to Guyger’s case—provides
persuasive authority
The evidence showing a mistake-of-fact is overwhelming. Guyger

missed a few signals—the vase on the third floor that was not on the

fourth floor, the red doormat in front of Jean’s apartment, and the one-

digit-off apartment number—but this does not make Guyger’s mistaken

beliefs fact unreasonable. When Hughes entered the third floor by

mistake, she believed that the vase in was added recently. (RR10.120-

121). On her petite 5’3” frame, Guyger was carrying lots of equipment.

Guyger simply missed the vase, doormat, and the one-digit-off apartment

number. A rational jury cannot base its decision on these minor clues—

which any reasonable person could have missed—and disregard the 48

distinct factual points that prove that what occurred was a clear

mistake of fact and that Guyger acted reasonably.

99
 Apparently, the precise factual situation here has never occurred.

Jaggard v. Dickinson, 3 All ER 716 (1980), 1981 (QB) 527 is presented as

persuasive authority to show that a person—through a mistake of fact—

can enter the wrong home, commit a crime believing that that her actions

are not a crime, and use mistake-of-fact as a defense to prosecution. See

Appendix. Jaggard was decided by the Queen’s Bench Division, one of

the three divisions of the United Kingdom’s High Court of Justice. See

Queen’s Bench Division of the High Court, https://www.gov.uk/courts-

tribunals/queens-bench-division-of-the-high-court, last accessed August

2, 2020.

In Jaggard, the defendant was charged with damaging property in

Raven’s home, located at 35 Carnach Green in South Ockendon,

England. Id. at 717. Jaggard’s friend Heyfron lived at 67 Carnach

Green. Id. The homes were “externally identical properties.” Id. Nearly

40 years later, the homes remain “externally identical properties”:

100
Google images of 35 Carnach Green—regular and zoomed:

101
Google images of 67 Carnach Green—regular and zoomed:

102
Guyger asks this Court to take judicial notice of these Google maps. Tex.

Rule Evid. 201(b) & (d) (2020); Bradley v. State, 564 S.W.2d 727, 732

(Tex.Crim.App. 1978) (Appellate courts have the same power as trial

courts to take judicial notice of matters that are not disputed and are

subject of ready verification, including for the first time on appeal). A

court may take judicial notice of maps. International-Great N. R. Co. v.

Reagan, 49 S.W.2d 414, 416 (Tex. 1932). A court may also take judicial

notice of maps on Google. City of Austin v. Leggett, 257 S.W.3d 456, 466,

fn.5 (Tex.App.-Austin 2008, pet. denied) (the court of appeals consulted

maps available on Google).

Jaggard did not know Raven and had no prior contact with her.

Jaggard, Id. at 717. Heyfron told Jaggard that she had his “consent at

any time to treat his property as if it was her own.” Id. By entering what

she believed to be Heyfron’s home, Jaggard was effectively entering her

own home. One evening at 10.45 p.m., Jaggard was intoxicated, so she

ordered a taxi to take her to 67 Carnach Green—Heyfron’s property—

but was delivered to 35 Carnach Green—Raven’s property. Id. Jaggard

entered the garden and was ordered by Raven to remove herself. Id.

103
Jaggard broke the window in the hallway and the window in the back

door, damaged a curtain, and gained entry to 35 Carnach Green. Id.

Jaggard argued that she had a genuine belief she was breaking into

67 Carnach Green and that her relationship with Heyfron was such

that she had his consent to do so. Id. The trial court concluded that

although believed she was breaking into 67 Carnach Green, this belief

was “not a genuine and honest mistake because it was induced by a state

of intoxication.” Id. Jaggard was convicted. Id.

The High Court determined that Jaggard was entitled to rely on the

mistake-of-fact defense, which in this context provides a defense for

believing that the owner of the property Jaggard thought she broke into

would have consented to the entry—and consequently, her mistake was

reasonable. Id. This mistake-of-fact defense applies regardless of

voluntary intoxication. Id. at 719.

As the High Court explained, “[a] belief could be just as much

honestly held if it is induced by intoxication as if it stemmed from

stupidity, forgetfulness or inattention.” Id. Parliament “...specifically

isolated one subjective element, in the shape of honest belief, and has

given it separate treatment” (in the statute). Id. Thus, it is the honesty

104
of the mistaken belief that matters—rather than its reasonableness—

since the Court must consider the defendant’s “...actual state of belief,

not the state of belief (that) ought to have existed.” Id. Thus, the issue

is whether the belief was honest and not its “intellectual soundness.” Id.

Even one who is voluntarily intoxicated can have an “honest belief” of a

mistake of fact.

Jaggard is not a murder case. However, the issue is the mistake-

of-fact defense. In Jaggard, the High Court found that although Jaggard

was intoxicated, she had an honest—albeit unreasonable—belief about

the identity of the home she broke into since they were “externally

identical properties.” And Jaggard—like Guyger with Jean—had never

met Raven.

Here, Guyger entered an apartment that was not hers—but she

reasonably believed it was because she mistakenly entered the wrong

floor and apartment as other residents of the building had done, and

reasonably believe an intruder was inside her home. Unlike Jaggard,

Guyger was not intoxicated, so the standard here is higher than in

Jaggard, and Guyger met the standard.

105
 The evidence was legally insufficient to prove
Murder under Tex. Penal Code § 19.02(b)(1)
Murder under Tex. Penal Code § 19.02(b)(1) requires evidence

beyond a reasonable doubt that the defendant intentionally or knowingly

caused the death of the complainant. A defendant acts intentionally if it

was her “conscious objective or desire to engage in the conduct or cause

the result.” Tex. Penal Code § 6.03(a) (2018). A defendant acts knowingly

if she was “aware that her conduct was reasonably certain to cause the

result.” Tex. Penal Code § 6.03(b) (2018).

The issue is Guyger’s mental state. Proof of a mental state will

almost always depend on circumstantial evidence. Dillon v. State, 574

S.W.2d 92, 94-95 (Tex.Crim.App. 1978); Lincoln v. State, 307 S.W.3d 921,

924 (Tex.App.-Dallas 2010, no pet.) (same). Mental culpability generally

must be inferred from the circumstances under which an act or omission

occurs, so it is inferred from a defendant’s words, acts, and

conduct. Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1996).

In a legal sufficiency review, this Court looks at “events occurring

before, during and after the commission of the offense and may rely on

actions of the defendant, which show an understanding and common

106
design to do the prohibited act.” Guevara v. State, 152 S.W.3d 45, 49

(Tex.Crim.App. 2004). Each fact need not point directly and

independently to guilt as long as the cumulative effect of all the

incriminating facts are sufficient to support the conviction. Id.; see

Russell v. State, 665 S.W.2d 771, 776 (Tex.Crim.App. 1983) (The evidence

is sufficient “if the conclusion [of guilt] is warranted by the combined and

cumulative force of all the incriminating circumstances.”). Motive is a

significant circumstance indicating guilt. Guevara, 152 S.W.3d at 50.

Intent may be inferred from circumstantial evidence like acts, words, and

the conduct of the defendant. Id.; see also Patrick v. State, 906 S.W.2d

481, 487 (Tex.Crim.App. 1995) (Intent may be inferred from the acts,

words, and conduct of the defendant, or the extent of the injuries and the

relative size and strength of the parties. It may also be inferred by the

evidence.); see also Manrique v. State, 994 S.W.2d 640, 649

(Tex.Crim.App. 1999) (same).

When this Court considers all the events occurring before, during

and after the shooting, the evidence is overwhelming that Guyger

reasonably but mistakenly believed she entered her apartment and an

intruder was inside. She intended to shoot to kill, but that was how she

107
was trained, and shooting to kill is reasonable if an intruder is in one’s

home. Guyger’s motive—a significant circumstance—clearly was that she

thought she was shooting an intruder in her apartment. Guevara, 152

S.W.3d at 50. She was frightened and reasonably believed that her life

was in danger. No other conclusion is rational. Considering all the

evidence in the record—whether admissible or inadmissible, see Winfrey,

393 S.W.3d at 767—Guyger acted reasonably.

Although Guyger was not in actual danger, there was apparent

danger from her standpoint, and she was entitled to use deadly force to

protect against this apparent danger. Jones, 544 S.W.2d at 142; Hamel,

916 S.W.2d at 493. Guyger acted on the reasonable apprehension of

danger as it appeared to her at that instant. Broussard, 809 S.W.2d at

559. Any other conclusion is mere theorizing or guessing about the

meaning of the evidence and is not adequate. Cary, 507 S.W.3d at 766.

Under Saxton, 804 S.W.2d at 913-914, Guyger met her burden of

producing evidence supporting self-defense, and the State failed in its

burden of persuasion to disprove it and prove beyond a reasonable doubt

that Guyger committed Murder under Tex. Penal Code § 19.02(b)(1). The

totality of the evidence supports this conclusion. Vodochodsky, 158

108
S.W.3d at 509; Jackson, 443 U.S. at 316-319; Laster, 275 S.W.3d at 517.

Guyger asks this Court to reverse the Judgment and sentence and enter

a judgment of acquittal. Tex. Code Crim. Proc. Art. 44.25; Tex. Rule App.

Proc. 43.2(c).

The evidence was legally insufficient to prove

Murder under Tex. Penal Code § 19.02(b)(2)
Murder under Tex. Penal Code § 19.02(b)(2) requires evidence

beyond a reasonable doubt that the defendant intended to cause serious

bodily injury and committed an act “clearly dangerous to human life” that

cause the death of the complainant. So long as the act alleged is within

the range of acts that a jury could reasonably conclude were clearly

dangerous to human life, the State will prove the element of “clearly

dangerous to human life.” Bowen v. State, 640 S.W.2d 929, 931

(Tex.Crim.App. 1982); see also Nevarez v. State, 847 S.W.2d 637, 642

(Tex.App.-El Paso 1993) (same).

The following acts have been deemed to be “clearly dangerous to

human life”:

109
 • The operation of a motor vehicle at a high rate of speed with

knowledge that a person was clinging to the door. Nevarez, 847 S.W.2d

at 642;

• A 200-pound man who uses his fists to beat a two-year-old

child in the head and stomach. Bowen, 640 S.W.2d at 931-932;

• Beating and burning a nine-month-old child with cigarettes.

Smith v. State, 268 S.W.2d 144, 146-147 (Tex.Crim.App. 1954);

• Striking another in the head with a blunt instrument.

Depauw v. State, 658 S.W.2d 628, 633 (Tex.App.-Amarillo 1983, pet. ref.);

• Striking another in the head with a sharp eight-pound

instrument. Teague v. State, No. 03-10-00434-CR, 2012 Tex.App.LEXIS

1304 (Tex.App.-Houston [1st Dist.] Feb. 16, 2012) (unpublished);

• Shooting numerous times at another vehicle with passengers

and killing one because the shooter wanted to show “who was boss.”

Edwards v. State, No. 05-10-00559-CR, 2011 Tex.App.LEXIS 9512

(Tex.App.-Dallas, December 6, 2011) (mem. opinion);

• Holding the victim down while another person hits him with

a stick, then kicks and stomps him. Smith v. State, No. 05-10-01555-CR,

110
2012 Tex.App.LEXIS 2323 (Tex.App.-Dallas, March 23, 2012) (mem.

opinion); and

• While wearing large, heavy boots, kicking the victim

numerous times in the head and abdomen. Amis v. State, 87 S.W.3d 582,

587-588 (Tex.App.-San Antonio 2002, no pet.);

An act “clearly dangerous to human life” means there is no

explanation other than that the defendant intended to kill or

intentionally inflict severe bodily injury or death without legal cause,

defense, or justification. Hignett v. State, 341 S.W.2d 166, 169

(Tex.Crim.App. 1960). (an act “clearly dangerous to human life” is one

where no adequate cause can explain the action other than a malicious

act that is intended to inflict such severe injuries on the target person

that death would most likely result). This is not what occurred here.

Guyger cites above only a few cases she found, but in none of them

was the defendant found guilty of Murder under Tex. Penal Code §

19.02(b)(2) and also acted in a defensive manner as Guyer did. Guyger

had more than adequate cause that justified her actions. Shooting at an

intruder who is in your home is not murder because one has legal

111
justification to do so. The fact that she was reasonably mistaken about

the apartment and the intruder does not change this legal conclusion.

When this Court considers all events occurring before, during and

after the shooting, the evidence is overwhelming that Guyger reasonably

believed she entered her apartment and an intruder was inside. Guyger’s

motive—a significant circumstance—clearly was that she thought she

was shooting an intruder in her home. Guevara, 152 S.W.3d at 50. She

was frightened and reasonably believed that her life was in danger. No

other conclusion is rational. Considering all the evidence in the record—

whether admissible or inadmissible, see Winfrey, 393 S.W.3d at 767—

Guyger acted reasonably.

Although Guyger was not in actual danger, there was apparent

danger from her standpoint, and Guyger was entitled to use deadly force

to protect against this apparent danger. Jones, 544 S.W.2d at 142;

Hamel, 916 S.W.2d at 493. Guyger acted on the reasonable

apprehension of danger as it appeared to her. Broussard, 809 S.W.2d

at 559. Any other conclusion is mere theorizing or guessing about the

meaning of the evidence and is not adequate. Cary, 507 S.W.3d at 766.

112
 Under Saxton, 804 S.W.2d at 913-914, Guyger met her burden of

producing evidence supporting self-defense, and the State failed in its

burden of persuasion to disprove it and prove beyond a reasonable doubt

that Guyger committed Murder under Tex. Penal Code § 19.02(b)(2). The

totality of the evidence supports this conclusion. Vodochodsky, 158

S.W.3d at 509; Jackson, 443 U.S. at 316-319; Laster, 275 S.W.3d at 517.

Guyger asks this Court to reverse the Judgment and sentence and enter

a judgment of acquittal. Tex. Code Crim. Proc. Art. 44.25; Tex. Rule App.

Proc. 43.2(c).

113
 Issue 2: In the alternative, Guyger requests that this
Court acquit her of Murder, convict her of Criminally
Negligent Homicide, and remand for a new hearing on
punishment.
Introduction
Guyger incorporates here the arguments in Issue 1. The State never

disputed that Guyger approached and entered Jean’s apartment in error.

The State’s arguments—repeated numerous times with little variation—

were that Guyger’s error was not reasonable. Because Guyger was not

paying attention, the State asserted that she did not act reasonably.

(RR14.65-66, 72, 117-120, 126, 129, 131-134). Even if correct—and

Guyger argues this only in the alternative—at most Guyger was

criminally negligent and thus guilty of Criminally Negligent Homicide.

Criminally Negligent Homicide is a lesser-

included offense of Murder
Manslaughter and Criminally Negligent Homicide are lesser-

included offenses of Murder because they meet the two-part test for an

instruction on a lesser-included offense. Feldman v. State, 71 S.W.3d

738, 750 (Tex.Crim.App. 2002) (two-part test); Tex. Code Crim. Proc. Art.

37.09 (2018) (statutory test for lesser-included offenses); Girdy v. State,

213 S.W.3d 315, 318-319 (Tex.Crim.App. 2006) (Manslaughter is a lesser-

114
included offense of Murder); Burnett v. State, 865 S.W.2d 223, 228

(Tex.Crim.App. 1993) (Criminally Negligent Homicide is a lesser-

included offense of Murder).

Guyger did not commit Manslaughter because she

did not consciously create the risk
A person commits Manslaughter if she recklessly causes the death

of an individual. Tex. Penal Code § 19.04 (2018). Manslaughter is a

result-oriented offense, so a defendant’s culpable mental state must

relate to the result of her conduct. Schroeder v. State, 123 S.W.3d 398,

399-401 (Tex.Crim.App. 2003) (It is “difficult to understand how a person

may ‘consciously disregard’ a risk of which he is unaware.”).

Reckless conduct requires a person to consciously disregard a

substantial and unjustifiable risk that certain circumstances exist,

or the result will occur. Tex. Penal Code § 6.03(c) (2018) (emphasis

added). This conscious disregard must be of such a nature and degree

that it constitutes a gross deviation from the standard of care that an

ordinary person would exercise under all the circumstances as viewed

from the person’s standpoint. Id.; see Bowden v. State, 166 S.W.3d 466,

473-478 (Tex.App.-Fort Worth 2005) [The defendant acted recklessly

115
because leaving young children alone at night in a room with a blocked

window with a burning candle inside a home with only one door and no

means of extinguishing a fire was a gross deviation from the standard of

care per Tex. Penal Code § 6.03(c)]. As explained in Lewis v. State, 529

S.W.2d 550, 553 (Tex.Crim.App. 1975) (emphasis added), reckless and

criminally negligent differ because:

(reckless conduct involves) conscious risk creation, that

is, the actor is aware of the risk surrounding his conduct or
the results thereof, but consciously disregards that
risk...criminally negligent conduct...involves inattentive
risk creation, that is, the actor ought to be aware of the risk
surrounding his conduct or the results thereof. At the heart of
reckless conduct is conscious disregard of the risk created by
the actor’s conduct; the key to criminal negligence is found in
the failure of the actor to perceive the risk.

See also Aliff v. State, 627 S.W.2d 166, 171 (Tex.Crim.App. 1982) (same)

and Stadt v. State, 182 S.W.3d 360, 364 (Tex.Crim.App. 2005) (same).

For instance, if a person holds a pistol with a round chambered and

without a legitimate reason shoots and kills another, the person acted

recklessly because she consciously created the risk and was aware of

the risk surrounding the conduct—that a person may be shot and killed.

Salinas v. State, 644 S.W.2d 744, 746 (Tex.Crim.App. 1983);

116
 See also Robertson v. State, 109 S.W.3d 13, 14, 21 (Tex.App.-El Paso

2003, no pet.) (defendant had a grand mal seizure and crashed his vehicle

into a house, crushing a nine-year-old child. The defendant knew he

should not have been driving because of his history of past automobile

accidents caused by seizures and he misrepresented his medical

condition on his driver’s license application. He acted recklessly and

consciously created the risk of danger); and

Payne v. State, 710 S.W.2d 193, 194 (Tex.App.-Beaumont 1986, no

pet.) (defendant was weaving from lane-to-lane while intoxicated and

struck and killed a bicyclist on the grassy section. The defendant acted

recklessly and consciously created the risk of danger.).

Guyger did not consciously create the risk that Jean would be

shot and killed. To conclude that she did is implausible. Guyger did not

design the absurd layout of Southside Flats with no indicators of what

floor one is on—causing many to park on the wrong floor, including even

Ranger Armstrong—walk to the wrong apartments, and sometimes enter

the wrong apartments. Nor did Guyger run the clown-show management

that was too incompetent to install strikeplates properly (RR10.43-44,

110-111, 124-127; RR17.DX39-DX43, RR10.110-111, 124-127) and

117
allowed smelly, toothless men to obtain fobs and enter the apartments of

women. (RR12.193).

At most, Guyger was inattentive and missed three clues: the vase,

Jean’s doormat, and a one-off-digit apartment number far above and to

the left of the door. As the TCCA observed in Schroeder, 123 S.W.3d at

401, it is “difficult to understand how a person may ‘consciously

disregard’ a risk of which he is unaware.” Guyger could not have been

aware of the risk any more than other tenants. Even the State did not

claim that she was aware of this risk. The State merely claimed that her

actions leading to Jean’s door and after she entered his apartment were

“unreasonable” since she was not paying attention to her surroundings

and should have noticed the clues. Thus, Guyger cannot be guilty of

Manslaughter.

Guyger at most is guilty of Criminally Negligent

Homicide for inattentive risk creation or the
failure to perceive the risk
Criminally Negligent Homicide requires inattentive risk

creation or the failure to perceive the risk. Tex. Penal Code § 19.05

(2018); Tex. Penal Code § 6.03(d) (2018) (emphasis added); Montgomery

v. State, 369 S.W.3d 188, 192-193 (Tex.Crim.App. 2012) (elements of

118
criminal negligence). The risk must be of a nature and degree that the

failure to perceive it is a gross deviation from the standard of care that

an ordinary person would exercise under all the circumstances as viewed

from the person’s viewpoint. Tex. Penal Code § 6.03(d); Montgomery, 369

S.W.3d at 192-193; Ybarra v. State, 890 S.W.2d 98, 110 (Tex.App.-San

Antonio 1994, pet. ref.) (same).

At most, Guyger committed Criminally Negligent Homicide

because the evidence showed beyond a reasonable doubt that: (1)

Guyger’s shooting Jean caused his death; (2) Guyger should have been

aware that there was a substantial and unjustifiable risk of death from

her conduct since she did not paying close enough attention to her

surroundings and missed the clues of the vase, red doormat, and one-

digit-off apartment number; and (3) Guyger’s failure to perceive the risk

was a gross deviation from the standard of care an ordinary person would

have exercised under like circumstances. Montgomery, 369 S.W.3d at

192-193. Per Nash v. State, 664 S.W.2d 343, 344 (Tex.Crim.App. 1984),

whether one ought to perceive the risk is based on its character, so

Guyger should have been more attentive to her surroundings.

119
 The Court should reverse the Judgment and
sentence, acquit Guyger of Murder, convict her of
Criminally Negligent, and remand for a new trial
on punishment
Criminally Negligent Homicide is a state jail felony [Tex. Penal

Code § 19.05(b) ] normally punishable by confinement in state jail for not

more than two years or less than 180 days. Tex. Penal Code § 12.35(a)

(2018). If it is shown that “a deadly weapon was used or exhibited during

the offense...,” the defendant “shall be punished for a third-degree

felony.” Tex. Penal Code § 12.35(c) (2018). A third-degree felony is

punishable by 2-10 years in TDCJ. Tex. Penal Code § 12.34 (2018).

Because Guyger received 10 years in TDCJ, her sentence is at the

top of the range for a third-degree felony. However, Guyger is eligible for

probation from the jury for Criminally Negligent Homicide per Tex. Code

Crim. Proc. Art. 42A.055 (2018) (jury recommended community

supervision), and Tex. Code Crim. Proc. Art. 42A.056 (2018), the

limitation on jury-recommended community supervision, does not apply

to Guyger. Thus, this Court should reverse the Judgment and sentence,

acquit Guyger of Murder, convict her of Criminally Negligent Homicide,

and remand for a new trial on punishment.

120
XI. Conclusion
Guyger prays that this Court reverse the Judgment and sentence

and: (1) per Issue 1, acquit her of Murder; or (2) in the alternative, per

Issue 2, acquit her of Murder, convict her of Criminally Negligent

Homicide, and remand for a new trial on punishment.

Respectfully submitted,

Michael Mowla
P.O. Box 868
Cedar Hill, TX 75106
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Guyger

/s/ Michael Mowla

Michael Mowla

XII. Certificate of Service

I certify that on August 4, 2020, this document was served by efile
on the Dallas County DA’s Office.

/s/ Michael Mowla

Michael Mowla

121
XIII. Certificate of Compliance
I certify that this document complies with the: (1) type-volume
limitations because it is computer-generated and does not exceed 15,000
words. The word-count feature of Microsoft Word shows this document
contains 14,975 words except in the: caption; identity of parties, counsel,
and judges; table of contents; table of authorities; statement regarding
oral argument; statement of the case, procedural history, and
jurisdiction; issues presented; signature; certificate of service; certificate
of compliance, and appendix; and (2) typeface requirements because it
was prepared using Microsoft Word in 14-point font.

/s/ Michael Mowla

Michael Mowla

122
Appendix
 Jaggard v Dickinson

Overview | [1981] QB 527, | [1980] 3 All ER 716, | [1981] 2 WLR 118, 72 Cr App Rep 33, [1980] Crim LR
717, 124 Sol Jo 847

Jaggard v Dickinson [1980] 3 All ER 716

QUEEN'S BENCH DIVISION

DONALDSON LJ AND MUSTILL J
15, 25 JULY 1980

Criminal law — Damage to property — Property belonging to another — Belief of accused — Belief that
owner would have consented to damage to property — Belief honestly held but induced by drunkenness —
Whether belief induced by drunkenness a defence to charge of damage to property — Criminal Damage Act
1971, s 5(2)(3) .

The appellant, late at night and while drunk, broke two windows and damaged a curtain in another person's house
while attempting to break into the house believing it to be the house of a friend in the same street. The two houses
were identical and the appellant's relationship with the friend was such that she had his consent to treat his house
as if it was her own. The appellant was charged with damaging property belonging to another without lawful excuse,
contrary to s 1(1)a of the Criminal Damage Act 1971. At the hearing in the magistrates' court she relied on the
defence afforded by s 5(2) and (3)b of the 1971 Act, namely that she honestly believed that she had a lawful excuse
for damaging the property in question because, as a result of her drunkenness, she believed that she was breaking
into her friend's house and that he would have consented to her breaking in and causing the damage. The
magistrates held that she was not entitled to rely on the defence in s 5(2) because her belief that she had a lawful
excuse was induced by her drunkenness. Accordingly they convicted her. She appealed. On the appeal the
prosecutor contended that since drunkenness did not negative the mens rea required for an offence under s 1(1),
because it was an offence of basic intent, and absence of lawful excuse was an element of that offence,
drunkenness could not be relied on to support a defence under s 5(2).

a Section 1(1) is set out at p 718 c d, post

b Section 5, so far as material, is set out at p 718 e f, post

Held – Section 5(2) and (3) of the 1971 Act specifically required the court, when deciding whether there was an
honest belief that there was lawful excuse to damage property, to consider a defendant's actual state of belief, and
that belief could be honestly held within s 5(3) even though it was induced by intoxication. The magistrates were
therefore in error in deciding that the appellant could not rely on the defence under s 5(2) because she was drunk.
The appeal would therefore be allowed and the conviction quashed (see p 719 a b e j and p 720 a and d to f, post).
Director of Public Prosecutions v Majewski[1976] 2 All ER 142 distinguished.

NotesFor lawful excuse as a defence to a charge of damaging property, see 11 Halsbury's Laws (4th Edn) para
1310, and for cases on destroying or damaging property, see 15 Digest (Reissue) 1439–1440, 12,690–12,693.
For the effect of drink as a defence for crime, see 11 Halsbury's Laws (4th Edn) para 28, and for cases on the
subject, see 14(1) Digest (Reissue) 49–54, 232–259.
For the Criminal Damage Act 1971, ss 1, 5, see 41 Halsbury's Statutes (3rd Edn) 409, 412.
 Page 2 of 5
Jaggard v Dickinson [1980] 3 All ER 716

Cases referred to in judgmentsDirector of Public Prosecutions v Majewski[1976] 2 All ER 142, [1977] AC 443,
[1976] 2 WLR 623, 140 JP 315, 62 Cr App R 262, HL, 14(1) Digest (Reissue) 54, 258.
Director of Public Prosecutions v Morgan[1975] 2 All ER 922, [1976] AC 182, [1975] 2 WLR 913, 139 JP 476, 61 Cr
App R 136, HL, 15 Digest (Reissue) 1212, 10,398.

[*717]
R v O'Driscoll (1977) 65 Cr App R 50, CA, Digest (Cont Vol E) 126, 251a.
R v Smith (David Raymond)[1974] 1 All ER 632, [1974] QB 354, [1974] 2 WLR 20, 138 JP 236, 58 Crim App R 320,
CA, 15 Digest (Reissue) 1439, 12,690.
R v Stephenson[1979] 2 All ER 1198, [1979] QB 695, [1979] 3 WLR 193, 143 JP 592, CA, Digest (Cont Vol E) 161,
12,692a.

Case statedThis was a case stated by justices for the County of Essex acting in and for the petty sessional division
of Thurrock in respect of their adjudication as a magistrates' court sitting at Grays, Essex.
On 12 October 1978 an information was preferred by the respondent, Detective Chief Inspector James Alexander
Dickinson, against the appellant, Beverley Anne Jaggard, that on 11 October 1978 at South Ockendon, Essex, she,
without lawful excuse, damaged two window panes and a length of net curtain belonging to Patricia Ann Reven
intending to damage them or being reckless whether they would be damaged, contrary to s 1(1) of the Criminal
Damage Act 1971.
The magistrates found the following facts. 35 Carnach Green, South Ockendon, which was occupied by Mrs Raven,
and 67 Carnach Green, South Ockendon, which was occupied by Ronald Frederick Heyfron, were externally
identical properties. The appellant did not know Mrs Raven and had no contact with her prior to the events giving
rise to the charge against the appellant. The appellant did know Mr Heyfron and their relationship was such that she
had his consent at any time to treat his property as if it was her own. At 10.45 pm on the day of the offence the
appellant was in state of self-induced intoxication and ordered a taxi to take her to 67 Carnach Green, Mr Heyfron's
property, but the taxi delivered her to 35 Carnach Green, Mrs Raven's property. She entered the garden of 35
Carnach Green and was ordered by Mrs Raven to remove herself. The appellant then broke the window in the
hallway of 35 Carnach Green and then broke the window in the back door of the premises, damaging a net curtain,
and gained entry to 35 Carnach Green.
The appellant contended that at the time she broke into 35 Carnach Green she had a genuine belief she was
breaking into 67 Carnach Green and that her relationship with Mr Heyfron was such that she had his consent to
break into 67 Carnach Green, and she relied on s 5(2) of the 1971 Act as affording her a defence to the charge.
The prosecutor contended that she could not rely on the defence in s 5(2) because the damaged property belonged
to someone other than Mr Heyfron and because the appellant was in a state of self-induced intoxication.
The magistrates were of the opinion that the appellant believed she was breaking into 67 Carnach Green but that
this belief was not a genuine and honest mistake because it was induced by a state of intoxication. Accordingly,
they convicted the appellant, fined her £20 and ordered her to pay costs of £10·4355 to the prosecutor.
The question for the opinion of the High Court was whether the magistrates were right in deciding that a defendant
charged with an offence under s 1 of the 1971 Act could not rely on the defence afforded by s 5 of that Act if the
belief relied on was brought about by a state of self-induced intoxication.

Nigel Lithman for the appellant.

Andrew Collins for the respondent.

Cur adv vult

25 July 1980. The following judgments were delivered.

MUSTILL J
(delivering the first judgment at the invitation of Donaldson LJ). On 21 March 1979 the appellant was convicted by
the justices for the County of Essex on a charge of damaging property contrary to s 1(1) of the Criminal Damage
Act 1971. She now appeals to this court by way of case stated.

[*718]
 Page 3 of 5
Jaggard v Dickinson [1980] 3 All ER 716

The facts set out in the case are short but striking. On the evening of 12 October 1978 the appellant had been
drinking. At 10.45 pm she engaged a taxi to take her to 67 Carnach Green, South Ockendon, a house occupied by
Mr R F Heyfron, a gentleman with whom she had a relationship such that, in the words of the magistrates, she had
his consent at any time to treat his property as if it was her own. Alighting from the taxi, she entered the garden but
was asked to leave by a Mrs Raven who was a stranger to her. Persisting, she broke the glass in the hallway of the
house. She then went to the back door where she broke another window and gained entry to the house, damaging
a net curtain in the process. At some time thereafter, in circumstances not described by the magistrates, it became
clear that the house was not 67 Carnach Green but 35 Carnach Green, a house of identical outward appearance,
occupied by Mrs Raven. The magistrates have found that the appellant did believe that she was breaking into the
property of Mr Heyfron but that this mistake was induced by a state of self-induced intoxication.
In these circumstances, the respondent prosecuted the appellant for an offence under s 1(1) of the 1971 Act which
reads as follows:

'A person who without lawful excuse destroys or damages any property belonging to another intending to destroy of
damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be
guilty of an offence.'

At the hearing before the magistrates the appellant relied on the following provisions of s 5 of the Act:

'(2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the
purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful
excuse—(a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom
he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would
have so consented to it if he or they had known of the destruction or damage and its circumstances …
'(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held … '

It is convenient to refer to the exculpatory provisions of s 5(2) as if they created a defence whilst recognising that
the burden of disproving the facts referred to by the subsection remains on the prosecution. The magistrates held
that the appellant was not entitled to rely on s 5(2) since the belief relied on was brought about by a state of self-
induced intoxication.
In support of the conviction counsel for the respondent advanced an argument which may be summarised as
follows. (i) Where an offence is one of 'basic intent', in contrast to one of 'specific intent', the fact that the accused
was in a state of self-induced intoxication at the time when he did the acts constituting the actus reus does not
prevent him from possessing the mens rea necessary to constitute the offence: see Director of Public Prosecutions
v Morgan[1975] 2 All ER 922, [1976] AC 182, Director of Public Prosecutions v Majewski[1976] 2 All ER 142, [1977]
AC 443. (ii) Section 1(1) of the 1971 Act creates an offence of basic intent: see R v Stephenson[1979] 2 All ER
1198, [1979] QB 695. (iii) Section 5(3) has no bearing on the present issue. It does not create a separate defence,
but is no more than a partial definition of the expression 'without lawful excuse' in s 1(1). The absence of lawful
excuse forms an element in the mens rea: see R v Smith[1974] 1 All ER 632 at 636, [1974] QB 354 at 360.
Accordingly, since drunkenness does not negative mens rea in crimes of basic intent, it cannot be relied on as part
of a defence based on s 5(2).
Whilst this is an attractive submission, we consider it to be unsound, for the following reasons. In the first place, the
argument transfers the distinction between offences of specific and of basic intent to a context in which it has no
place. The distinction is

[*719]
material where the defendant relies on his own drunkenness as a ground for denying that he had the degree of
intention or reclessness required in order to constitute the offence. Here, by contrast, the appellant does not rely on
her drunkenness to displace an inference of intent or recklessness; indeed she does not rely on it at all. Her
defence is founded on the state of belief called for by s 5(2). True, the fact of the appellant's intoxication was
relevant to the defence under s 5(2) for it helped to explain what would otherwise have been inexplicable, and
hence lent colour to her evidence about the state of her belief. This is not the same as using drunkenness to rebut
an inference of intention or recklessness. Belief, like intention or recklessness, is a state of mind; but they are not
the same states of mind.
Can it nevertheless be said that, even if the context is different, the principles established by Majewski ought to be
applied to this new situation? If the basis of the decision in Majewski had been that drunkenness does not prevent a
 Page 4 of 5
Jaggard v Dickinson [1980] 3 All ER 716

person from having an intent or being reckless, then there would be grounds for saying that it should equally be left
out of account when deciding on his state of belief. But this is not in our view what Majewski decided. The House of
Lords did not conclude that intoxication was irrelevant to the fact of the defendant's state of mind, but rather that,
whatever might have been his actual state of mind, he should for reasons of policy be precluded from relying on any
alteration in that state brought about by self-induced intoxication. The same considerations of policy apply to the
intent or recklessness which is the mens rea of the offence created by s 1(1) and that offence is accordingly
regarded as one of basic intent (see R v Stephenson). It is indeed essential that this should be so, for drink so often
plays a part in offences of criminal damage, and to admit drunkenness as a potential means of escaping liability
would provide much too ready a means of avoiding conviction. But these considerations do not apply to a case
where Parliament has specifically required the court to consider the defendant's actual state of belief, not the state
of belief which ought to have existed. This seems to us to show that the court is required by s 5(3) to focus on the
existence of the belief, not its intellectual soundness; and a belief can be just as much honestly held if it is induced
by intoxication as if it stems from stupidity, forgetfulness or inattention.
It was, however, urged that we could not properly read s 5(2) in isolation from s 1(1), which forms the context of the
words 'without lawful excuse' partially defined by s 5(2). Once the words are put in context, so it is maintained, it
can be seen that the law must treat drunkenness in the same way in relation to lawful excuse (and hence belief) as
it does to intention and recklessness, for they are all part of the mens rea of the offence. To fragment the mens rea,
so as to treat one part of it as affected by drunkenness in one way and the remainder as affected in a different way,
would make the law impossibly complicated to enforce.
If it had been necessary to decide whether, for all purposes, the mens rea of an offence under s 1(1) extends as far
as an intent (or recklessness) as to the existence of a lawful excuse, I should have wished to consider the
observations of James LJ, delivering thejudgment of the Court of Appeal in R v Smith[1974] 1 All ER 632 at 636,
[1974] QB 354 at 360. I do not however find it necessary to reach a conclusion on this matter and will only say that I
am not at present convinced that, when these observations are read in the context of the judgment as a whole, they
have the meaning which the respondent has sought to put on them. In my view, however, the answer to the
argument lies in the fact that any distinctions which have to be drawn as to the relevance of drunkenness to the two
subsections arises from the scheme of the 1971 Act itself. No doubt the mens rea is in general indivisible, with no
distinction being possible as regards the effect of drunkenness. But Parliament has specifically isolated one
subjective element, in the shape of honest belief, and has given it separate treatment and its own special gloss in s
5(3). This being so, there is nothing objectionable in giving it special treatment as regards drunkenness, in
accordance with the natural meaning of its words.
In these circumstances, I would hold that the magistrates were in error when they decided that the defence
furnished to the appellant by s 5(2) was lost because she was drunk at the time. I would therefore allow the appeal.

[*720]
DONALDSON LJ.
I agree, but in deference to the very careful arguments with which we have been assisted in this case, I would like
to express my own view, albeit briefly.
As I understand the law as expounded in R v Majewski[1976] 2 All ER 142, [1977] AC 443, where self-induced
intoxication in fact deprives an accused person of the mental ability to form a relevant intent but otherwise the
essential ingredients of the offence are proved, his liability to conviction will depend on whether the relevant intent
was a general, or basic, intent or a specific intent. If only a general or basic intent is required, the effects of the
intoxication cannot be relied on. Aliter, if a specific intent is required. The distinction between a general, or basic,
intent and a specific intent is that, whereas the former extends only to the actus reus, a specific intent extends
beyond it.
The actus reus in s 1(1) of the Criminal Damage Act 1971 consists of destroying or damaging the property of
another and the mens rea, consisting of an intent or recklessness and absence of lawful excuse, is co-extensive
(see R v Smith[1974] 1 All ER 632 at 636, [1974] QB 354 at 360 per James LJ). Accordingly this is a crime of basic
intent and was so held in R v O'Driscoll (1977) 65 Cr App R 50 at 55, where Waller LJ also pointed to the contrast
between s 1(1) and s 1(2), where a further and specific intent was required, namely an intent by the criminal
damage to endanger the life of another.
If, therefore, the 1971 Act had not contained s 5 there would be no problem. The appellant would have been rightly
convicted. The question for us, and so far as I know it is a completely novel question, is whether s 5 makes any
difference.
The law in relation to self-induced intoxication and crimes of basic intent is without doubt an exception to the
general rule that the prosecution must prove the actual existence of the relevant intent, be it basic or specific (see R
v Stephenson[1979] 2 All ER 1198 at 1204, [1979] QB 695 at 704 per Geoffrey Lane LJ). And in s 5 Parliament has
 Page 5 of 5
Jaggard v Dickinson [1980] 3 All ER 716

very secifically extended what would otherwise be regarded as 'lawful excuse' by providing that it is immaterial
whether the relevant belief is justified or not provided that it is honestly held. The justification for what I may call the
Majewski exception, although it is much older than that decision, is said to be that the course of conduct inducing
the intoxication supplies the evidence of mens rea (see [1976] 2 All ER 142 at 150–151, [1977] AC 443 at 474–475)
per Lord Elwyn-Jones LC. It seems to me that to hold that this substituted mens rea overrides so specific a statutory
provision involves reading s 5(2) as if it provided that 'for the purposes of this section it is immaterial whether a
belief is justified or not if it is honestly held provided that the honesty of the belief is not attributable only to self-
induced intoxication'. I cannot so construe the section and I too would therefore allow the appeal.
Appeal allowed. Conviction quashed.
The court refused leave to appeal to the House of Lords but certified under s 1(2) of the Administration of Justice
Act 1960 that the following point of law of general public importance was involved in the decision: whether it is a
defence to a charge under s 1(1) of the Criminal Damage Act 1971 that a defendant, as a result of self-induced
intoxication, has an honest belief that a state of affairs exists that in all other respects constitutes a lawful excuse
within s 5(2)(a) and (3) of that Act.

Solicitors: Roberts-Morgan, Shaen, Roscoe & Co, Stanford-le-Hope (for the appellant); T Hambrey Jones,
Chelmsford (for the respondent).

Denise Randall Barrister.

End of Document
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