Day 1 of Brandon Daniel trial wraps up

AUSTIN (KXAN) – Watch the trial (http://kxan.com/live-stream/) – Opening statements in Brandon Daniel’s murder trial were brief from both sides Tuesday.  Daniel’s attorney, Russ Hunt, was very blunt with the jury saying they’re not asking for Daniel’s release but arguing against the capital murder charge.  Hunt also focused on Daniel’s altered state explaining he was on the drug Xanax due to depression.

“When he broke up with his girlfriend, that led to terrible depression. This terrible depression led to the use — self-medication, some might say -– of Xanax, which is an anti-anxiety medication. Xanax, as it turns out, is highly addictive and really can lead to personality changes,” said Hunt during opening statements.

Testimony from the Walmart workers on overnight shift

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 Interstate 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.

“All of the sudden, a gun came out,” said Monica Lawson, a former Walmart employee who described Daniel pulling the gun from his waist area. “They [Daniel and Padron] were wrestling, and he [Padron] kept trying to get the gun. Then a shot came out, and I thought it was a fake gun. I thought it was confetti.”

‘Then a second shot came out, and I saw the blood,” said Lawson, crying on stand.

“I realized it was a gun, the pop that we heard, said LeMere. “I immediately jumped on the suspect and the third shot went right by my right ear.”

After the shooting, LeMere jumped on top of Daniel while another employee stomped on the suspect’s hand and kicked his gun away.

As Daniel lay pinned, LeMere said he looked at Padron bleeding, as Daniel 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.

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.

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.”

Surveillance video shows Daniel arriving at Wal-Mart at 1:57am. He can be seen walking slowly through the aisles and putting items into produce bags. Several times he dropped the bags and would sway and weave as he walked the store.

Nearly 30 minutes after Daniel entered, the video shows Padron showing up and meeting with the manager before going into the store. Daniel runs from Padron as soon as they meet and Padron tackles him in an area near the entrance way. Initially, Padron falls on top of Daniel, but then rolls over the top of him before falling still to the ground. The video does not have sound making it difficult to tell when the gunshots are fired.

Employee William Garlow testified he tried to talk to Padron to keep him awake. The officer’s eyes would go in and out of focus and he was trying to mouth something without any sound coming out. Garlow attempted to use his own shirt to make a tourniquet to stop the significant amount of blood.

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.

Gutierrez, speaking softly with a cracked voice, told jurors she was about 5 feet away from Daniel and Padron when the shots were fired.

The next APD officer to respond was Chris Kroger. He testified he was about a half-mile away from the Wal-Mart when he heard the word “shot” come over the radio and knew it was potentially trouble.

When he arrived, he tried to give Padron CPR but said he had already lost a great amount of blood.

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 Backstory

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.”

On Tuesday morning, 10 women and 2 men began to weigh the fate of 26-year-old Brandon Daniel.

Brandon Daniel faces capital murder charges for the killing of Austin Police Officer Jaime Padron.

APD Sr. Officer JaimePadron
APD Sr. Officer JaimePadron

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 Walmart 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.

KXAN.com is live streaming the trial

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.

GOING IN-DEPTH: Padron’s Service

  • Padron spent 14 years as a police officer in San Angelo.
  • He joined the Austin Police Department just more than three years before he was killed and also served as a police officer at Austin-Bergstrom International Airport as part of the Emergency Management Department that consolidated with APD in 2009
  • Padron, 40, was shot in the neck responding to an early-morning call. Police say store employees subdued Daniel and tried desperately to save Padron’s life.
  • Padron was the first Austin police officer killed on duty since 2004.
  • He is one of 18 APD officers killed in the line of duty. The first dates back to 1875, with the most recent happening in October of last year.

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.”

THE JURORS

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.

Remembered

“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

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