The Potential Charge and Punishment in El Paso

August 3rd began like most Saturdays do for me. I slept in a little, planned the day with my wife over coffee, and readied myself for some soon-to-be-played pickup basketball with a prayer not to get injured and a preemptive Advil. First, though, I had to get the groceries for the week. I made it to my local Wal-Mart at about 10:30. Saturday errands like that are woven into the fabric of our lives. I don’t know the exact number of folks who did the same as me, but I bet it was just about everyone we know.

Sadly, however, I do know the exact number of folks who went to their local Wal Mart in El Paso and didn’t make it out alive: Twenty.  Twenty-Six more were injured. Those are the numbers as of the time of this writing – less than 24 hours after the shootings. The investigation has only just begun, but the man police say is responsible is in custody in El Paso, charged with Capital Murder.

Video Stills from the El Paso Wal Mart, August 3, 2019.
Video still of the alleged shooter from the Wal Mart in El Paso

There has already been some confusion about the future of this case. People have asked me whether this will be a federal case or a state case. Is it a hate crime?  What is the potential punishment? Is the federal punishment more severe?

I don’t know any of the facts and circumstances of this case, and am not expressing an opinion one way or another about what should happen. I am writing to outline the legal landscape of capital murder prosecutions in Texas in hopes of clarifying the process for you, the reader.

First, the charge. Our law defines capital murder in a number of different ways. One of which is the murder of more than one person during the same criminal transaction. If a person is convicted of this type of capital murder, there are two possible punishments: life without parole or the death penalty.

The decision to seek the death penalty rests exclusively with the elected District Attorney in the county in which the killing occurred. If they decide to seek death, they will file a motion to seek the death penalty with the Court and serve it upon the defense. If the District Attorney does not file the motion to seek death, the default punishment assessed upon conviction is life without parole.

There are three phases for all trials in Texas, whether for Capital Murder or DWI. The first is jury selection. For death penalty cases, jury selection is done on an individual basis and can last for weeks. Once selected, the jurors will hear the evidence in the guilty/not guilty phase. If the State proves that the defendant is guilty beyond a reasonable doubt, the verdict is guilty. If not, the verdict is not guilty. A guilty verdict leads to the final phase of the trial: Punishment.

In the punishment phase, jurors hear evidence that is much broader in scope than the guilty or not guilty phase. The law asks jurors to hear all of the evidence and then answer two questions called “special issues.” Their answers to these special issues dictate whether the death penalty will be imposed.

The first special issue asks jurors whether “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Courts and commentators refer to this as the “future danger” special issue. If the State fails to convince jurors beyond a reasonable doubt, then the deliberations stop, and the defendant will be sentenced to life without parole. If, however, the State proves to jurors beyond a reasonable doubt the answer should be “yes,” then jurors will go on to consider the second special issue, often referred to as the “mitigation” special issue.

For this, jurors are asked, “whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.” If the jurors are convinced that the answer is “no”, that there is nothing sufficiently mitigating in the evidence, then the defendant will receive the death penalty. If, however, jurors answer the question “yes,” that there is a sufficiently mitigating circumstance, then the defendant will be sentenced to life without parole.

This is a very cursory outline of the capital murder scheme in Texas, but I felt it important to share with you the reader to clarify the process of the charge in El Paso as it currently stands. Federal charges are certainly possible, and if they come, the person could be prosecuted by the State and the Feds. Only time will tell, however.

In the meantime, investigators in El Paso are piecing together their case, collecting evidence and speaking with witnesses in the 250th mass shooting in America in 2019.

While the ink that reads “El Paso” on America’s morbid scorecard was still wet, I woke up Sunday to the news that investigators in Dayton, Ohio are piecing together their own mass shooting case.

That’s number 251.

Not even a day goes by.