A bizarre case has unfolded in Texas where Judge Alexandra Smoots-Thomas has been charged with shooting at the girlfriend of her husband. Smoots-Thomas was previously suspended after allegations that she spent campaign funds on jewelry, luxury items, her mortgage payments, and other personal expenses. The case could raise some novel defenses.
Smoots-Thomas is facing 10 counts of wire fraud involving $25,000 in campaign funds but still ran for reelection. What is astonishing is that, despite the allegations, she still made a runoff in the recent election. (She was ultimately defeated).
Smoots-Thomas reportedly pulled into the woman’s driveway and began honking. The girlfriend came outside with what is described as a “board” and tried to smack the gun away from Smoots-Thomas. Police told the Houston Chronicle that Smoots-Thomas then fired three shots and fled the scene.
Assuming the gun was legal, Smoots-Thomas could argue that she had a right to bring the gun in the car and that she was defending herself if the shots were fired after the girlfriend used the board. A jury would be understandably skeptical at such a defense but Texas has robust Castle Doctrine and Stand Your Ground protections. Texas Penal Code §9.32(c) codified the common law rule that you do not have a duty to retreat if attacked so long as you have a legal right to be at the location; you did not provoke the person against whom deadly force was used, and you were not engaged in criminal activity at the time deadly force was used.
The prosecutors can argued that Smoot-Thomas was arguably trespassing but also provoked the encounter. She can argue that she came to the house to confront her husband and his girlfriend and only used force in self-defense.
As I stated, it is a tough criminal defense case to make for a jury.
Smoot-Thomas received her undergraduate degree from the University of St. Thomas and her J.D. from South Texas College of Law.
Here is the relevant provision under Texas Penal Code §9.32(c) :
(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31 ; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or
(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’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 actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.