TopGunI said:
Scottsins - okay - I could have been more legally precise, but so could have you.
I have not idea how I could be more legally precise. I was using the only legal definition of "intent" that exists under the Texas Penal Code. You were using it interchangeably with the concept of "mens rea", which is not merely imprecise, but not possibly correct. More on that next.
TopGunI said:
When I said that AP's intent matters, I am saying that the crime has a mens rea element to it, which means it requires "a guilty state of mind." Do you disagree? It is not enough that you prove that he was hitting him and caused an injury, because Tx allows both corporal punishment and the use of a switch (prosecutor conceded the latter).
You have equated my use of the word "intent," instead of the Latin phrase "mens rea," as meaning that I am saying the injury must be intentional. I never made that statement - go back and check.
Of course I equated "intent" with a required mens rea OTHER THAN recklessness or negligence. There is no other way to use that term within a discussion of Texas criminal law, since ONLY an "intentional" mens rea includes a conscious desire to cause the result of the act.
Texas mens rea's are either "intentional", "knowingly", "recklessly" or "negligently".
This is the most important thing everyone need to understand here..."Criminal negligence" is a totally objective standard. What AP was trying to do, why he did it, whether HE ACTUALLY KNEW BETTER, etc...are all SUBJECTIVE questions. That question is not asked when determining criminal negligence. So, since there is no requirement that the State prove that he meant to cause those injuries or knew they could happen, or knew of any other alternative other than what he did...is completely irrelevant to the legal question answered by a jury at trial.
So THAT obviously means that AP's intent has nothing to do with whether he is found guilty of criminally negligent injury to a child.
TopGunI said:
The prosecutor must prove that AP was criminally negligent, which requires an evaluation of what he was doing and why. So he will explain to the jury what he was doing and why, and then the jury will decide if he is a criminal.
Nope. The jury will decide whether a hypothetical "reasonable person" would have realized/perceived a substantial risk of the harm caused. NOTE: This does NOT allow consideration of how AP was brought up, what the kid was doing, whether HE ACTUALLY REALIZED THE RISK AT ALL.
TopGunI said:
No evidence of malice, no permanent injury, a father saying that he was trying to teach his son not to do ___X__. And this is all done in front of a Texas jury.
Wow. I'll take these comments individually:
1. "Malice" - this term has nothing to do with proving negligence, according to the entire concept and legal definition of criminal negligence. If I allow you to be REALLY "imprecise", I can agree that "malice" is kinda required, in a way, to proving a "reckless" mens rea. More simply..."malice" deals with the subjective ACTUAL thoughts/awareness of a person. Since negligence is 100% OBJECTIVE and ZERO % SUBJECTIVE, malice doesn't have anything to do with this.
2. "Permanent injury" - I have no idea why you bring this up. We are still just talking about why a jury would/would not find him guilty, right? How in the world does the existence of "permanent injury" have anything to do with the guilt/innocence question here? *hint, it does not.
3. "Father saying he was trying to..." See #1. If they went to trial strictly on the negligence theory, this testimony would likely not even being allowed in the guilt/innocence phase as it is not relevant to any fact question asked of the jury. If it was allowed there is no place in the jury instructions for any of that to be considered. Again, subjective vs objective.
4. "Texas jury" - I have no idea what that is supposed to mean. From county to county, juries' propensity to convict for certain crimes, with certain types of defendants, etc. varies GREATLY. We are a pretty big state. Since you brought it up though, Montgomery County is known as being a VERY tough on crime. Also, and I bring this up ONLY because there has been talk of AP's excuse being that this type of discipline is very common in the rural black South, the county is 83.5% White, 4.3% Black. Ideally, race should play no role in these proceedings though, of course.
TopGunI said:
And we have a bet for $100.
Deal. If there is no trial, the bet is a push. If trial, the action is "guilty verdict" vs. "not guilty". A mistrial would be a push, and if you are ok with it, we can carry over to the re-trial, if there is one. Appeals after conviction/not guilty verdict are not included.