AUSTIN (KXAN) – Watch Live: KXAN Live Stream The Wal-Mart employees credited with subduing Brandon Daniel gave detailed testimony of what happened in the moments leading up to and after Senior Officer Jaime Padron was shot and killed in April of 2012.
Lincoln LeMere, a retail manager at the store on I-35 and Parmer, called 311 and told a dispatcher about a customer that was “drunker than Cooter Brown.” He requested assistance as to keep the customer from getting on the road and putting others in danger.
Officer Padron arrived within five minutes according to LeMere who pointed the officer in the direction of Daniel who was still looking through the store.
According to LeMere’s testimony, Padron approached Daniel and said he wanted to ask him some questions. At that point, Daniel rushed past the officer in an attempt to get away.
“He grabbed his arm and said ‘Stop. APD. I need to talk to you,’” testified LeMere.
LeMere said Padron ran after Daniel, tackled him and a gunshot went off as the two men hit the ground. After a short pause, two more gunshots were fired and
LeMere believes the third was aimed for him.
“I realized it was a gun, the pop that we heard. I immediately jumped on the suspect and the third shot went right by my right ear,” said LeMere.
After the shooting, LeMere jumped on top of Daniel while another employee stomped on the suspect’s hand and kicked his run away.
As Daniel lay pinned, LeMere said he looked at Padron bleeding, chuckled a little bit and said “I killed a cop.” That testimony brought a collective gasp from the courtroom and a few sobs and tears from members of Padron’s family who sit in the front row.
The surveillance video from inside Wal-Mart was shown at the trial. The video shows Daniel arrive on a motorcycle and park outside the front door at 1:57 a.m. and walk inside towards the produce section with his hoodie up over his head. Daniel started to put items in a produce bag and kept walking to different aisles. He appeared to drop the produce bag spilling some of the items.
Another Wal-Mart employee, Sean McCarthy, said Daniel asked him to hold some items for him while he went out to his car. McCarthy said Daniel did not appear aggressive, but had bloodshot eyes and appeared intoxicated or under the influence. The video shows Daniel leaving his items with McCarthy and leaving the store walking off-balance.
When Daniel returned to the store, the surveillance video shows his picking up his items and walking from aisle to aisle with his hands full and consistently dropping things. Archie Jordy, another Wal-Mart employee, can be seen following Daniel to keep an eye on him. Daniel then takes off his back pack and starts putting items in it, when Jamie Padron enters and confronts Daniel in the produce section.
According to Jordy, at no point while monitoring Daniel through the store was there any indication Daniel was armed. He testified Daniel was giggling and smiling but he never heard him say anything.
McCarthy was on break when he heard the gunshots, went inside and found Padron on the ground next to Daniel and LeMere.
“We were all in shock,” said McCarthy. “We did not know what to do. I heard Lincoln yell “go get something for (Padron’s) neck.”
Other employees were emotional on the stand as the recalled witnessing Padron’s death.
“The gun was put to the neck or the officer and shot again,” said Alma Gutierrez through tears. A 911 call recording was played for the jury featuring Guiterrez’s voice telling a dispatcher that a police officer had been shot and blood was everywhere.
Monica Lawson did not realize right away the gunshots were real.
“It thought it was a fake gun,” she said. “But then a second shot came out and I saw blood and knew it was real.
The surveillance video shows Daniel running to the doorway, and Padron tackles him but when they hit the ground Padron rolls over Daniel and doesn’t move when he hits the ground. At this point, Wal-Mart employees immediately jump on Daniel, and another officer arrives and handcuffs him. The video ends with people trying to help Padron.
During very brief opening statements, Daniel’s defense team did not appear to make any attempt to convince the jury of Daniel’s guilt. Rather, they set the stage for a possible punishment phase by saying Daniel had a bright future, a good job, and a recent break-up with his girlfriend has led to the use of Xanax.
Defense attorney Russ Hunt told jurors they are not asking them to allow Daniel to walk away, but the crime does not fit the criteria of Capital Murder.
The capital murder trial for Brandon Daniel in the 2012 death of Austin Police Officer Jaime Padron is under way.
On Tuesday morning, 10 women and two men began to weigh the fate of the 26-year-old Daniel.
For the first time in three years, a Travis County jury will be given the authority to make the ultimate and most powerful decision allowed within the justice system: life or death.
During the trial of Areli Escobar, the county’s last death penalty case in 2011, defense attorney Allan Williams said juries for death penalty cases are given almost “God-like power.”
In April of 2012, Daniel was arrested in the death of Senior Austin Police Officer Jaime Padron who was responding to a disturbance call at the Wal-Mart on Parmer Lane. Employees called police and said Daniel was drunk and trying to steal from the store. When Padron arrived, police say Daniel tried to run and it led to a struggle between the two men. Padron was shot in the neck during the incident.
Seven months later, the Travis County District Attorney’s office announced they would pursue the death penalty for Daniel — something Chief Art Acevedo had immediately pushed for when initially responding to the media in the early morning hours of the shooting inside a North Austin Walmart.
“I believe, for what he has taken from this community, this community should have that option,” said Austin Police Chief Art Acevedo when the decision was made. “The ultimate price for the ultimate act of committing Capitol Murder of a police officer.”
In a county where the death penalty is rarely sought, officials weighed several factors including community outrage over the officer’s killing, the grand funeral procession, the arrangements and the number of people in the community moved over the entire incident.
“It is definitely not frequent,” said attorney Mindy Montford who is not associated with the case. “Across the state, we are known for not seeking the death penalty as often as some other counties.”
“He wasn’t just taken from his family,” said Acevedo the day officials announced they’d seek the death penalty. “He wasn’t just taken from us, the Austin Police Department and his law enforcement colleagues. He was taken from this community.”
“And it was not just an attack on an officer,” he continued. “It was an attack on the fabric that holds our community together. So I believe, what he has taken from this community, this community should have that option, the ultimate price for the ultimate act of committing a capital murder of a police officer.”
Although it was ultimately Lehmberg’s decision, it was one the district attorney had to first run through a committee of trusted advisors within her office — people with differing views and some who even oppose the death penalty itself.
Because Daniel was reportedly drinking and on Xanax when the murder happened, many have wondered about a plea of temporary insanity.
It’s one that Montford said is not a valid defense, adding that voluntary intoxication is not a defense to your conduct. The defense, however, may be able to get into that slightly once a verdict is returned, as a mitigation of conduct, though still not as a defense to the conduct itself.
The defense may be able to use it to explain, putting into perspective for the jury, and in an effort to try to get some sympathy from the jury. Defense attorneys would argue that because of the voluntary intoxication, this is not the way that the suspect normally acts.
In addition, Montford noted that while Daniel does have a criminal history, it does not include any violent offenses. It’s likely, then, that the defense will pose to the jury that something went terribly wrong that night — making sure the jury knows that the person Daniel was on the morning he allegedly shot Padron dead was not the person Daniel typically was.
Background, history and all sorts of other varying information will all play into the trial. Montford added the process would be a long one.
“Even if they do get a conviction, you’re going to see this go through the system for many, many years before that family feels that justice has actually been done,” said Montford.
Along those same lines, prosecutors will bring up for the jury the legacy Padron left behind, in addition to his two young daughters and family members.
Should Daniel be found guilty, the appropriate sentence for killing a police officer is one that will belong to the people of Travis County. Twelve people who can evoke the “God-like power” Williams spoke of by answering just two questions.
PAST AND FUTURE
The first several days of the trial will reveal evidence only to assist the jury with the question of Daniel’s guilt and innocence.
But more than likely, the real debate and uncertainty will come during the sentencing phase which would follow a guilty verdict.
For death penalty cases in Texas, a jury must answer the first question:
“Is the defendant a future danger while in prison?”
If the jury answers “yes,” they must then answer a second question:
“Are there mitigating circumstances to warrant a life sentence as opposed to death?”
If the jury answers “no,” then the defendant will be sentenced to death. Any other combination of answers will mean a sentence of life in prison without parole.
Both prosecution and defense will try to convince the jury to answer the questions in their favor. Doing so will likely require look into Daniel’s past and future.
“Mitigating factors could be his background,” said Montford. “Maybe he was abused as a child, maybe he was on drugs or alcohol. All of that is taken into consideration by the jury at punishment.”
Intoxication is not allowed as a defense for committing a crime in guilt/innocence, but Daniel’s alleged use of alcohol and Xanax the night of the shooting could come into play when it is time for the jury to answer the two key questions about the former software engineer.
“(The defense) will show this is an individual that would not act this way if he was not intoxicated and did not have a violent criminal history,” said Montford. “That would be indicative of whether he would be a ‘future danger.’”
But Montford knows the prosecution will have their own interpretation of the law for the jury to consider.
“The state is going to show who Officer Padron was and put a face to him. He is a father of two going in on this call when this individual shot him point blank.”
Human nature is a difficult element to gauge. There is no way to know how the 12 strangers in the jury box will react to hearing certain pieces of evidence or how it could affect their decision.
Five days after Padron was killed, thousands of people lined the procession route to honor him.
“The people were very supportive of Officer Padron and his family,” remembered Montford. “It will be interesting to see if they can set that emotion aside or if that will play a part in giving the death penalty.”
Montford also said the overwhelming majority of women on the jury could become a factor, although it is hard to tell which side may benefit.
“There are studies that show women jurors, for better or worse, are sometimes more indecisive than men.”
Women are also inclined to use emotion according to Montford. Mothers on the jury may show compassion for Daniel and his mother.
Of course, they could also sympathize with Padron’s parents.
One personal belief or opinion which should not become a factor is each juror’s opinion on the death penalty as punishment.
Both sides spent weeks vetting possible jurors for the case.
“When you seat the jury, these people all said they can follow the law,” said Montford. “They may not like the law, may want to change the law, but if a judge asks them to consider the death penalty, they would do it. They are going to take an oath.”
TRAVIS COUNTY AND THE DEATH PENALTY
According to the Texas Department of Criminal Justice, Travis County has just five inmates on death row.
Hays County has one while Williamson County has none.
By comparison, Bexar County (San Antonio) has 18, Dallas County has 32, Tarrant County (Fort Worth) has 38, and Harris County (Houston) has 95.
“Above all else, he was a hero … He is in heaven right now.” — Police Chief Art Acevedo
“Jaime, you will always be with me. Always. You are my brother.” — Fellow officer and partner Rahim Kidd
“He was destined to be a leader in our organization, just like he was a leader wherever he went.” — APA President Wayne Vincent