Day 2: Brandon Daniel sentencing phase

AUSTIN (KXAN) — The state rested after their second day in the sentencing phase for Brandon Daniel.  On Friday, Daniel was convicted of capital murder for the 2012 slaying of Austin Senior Police Officer Jaime Padron.

The jury heard another phone call Daniel made to his mother, this one from on April 25, 2012. That is just 19 days after he killed Padron.

Throughout this April 2012 phone call, Mary O’Dell rails on police and jailers of their treatment of her son in jail. Daniel’s mom tells him the entire system is crooked and compares it to the Catholic Church.

“Cops all stick together; they are all crooked — even my sister and husband. They are all crooked,” said O’Dell.

Another phone call from March 10, 2013, outlines cryptic messages from Daniel to his mother where he walks her through decoding a letter. Three weeks later, there’s another phone call from Daniel to his mother, explaining to her another coded letter. He makes sure she’s keeping the envelopes from those letters.

“It became very apparent early on, I would need to check his phone calls,” said APD Homicide Detective David Fugitt who felt concern for the safety of corrections officers dealing directly with Daniel because of reports from inside the jail that he was planning an escape.

Fugitt reviewed about 16 hours of Daniel’s phone calls from jail, as well as video visitation he had with his family.

Fugitt explained there’s a system to monitor incoming and outgoing mail and that the coded letter was shaded in a way so that it would bypass that system. Authorities scan jailhouse letters, though the scans did not pick up the cryptic message within the shading of an alien face Daniel had drawn in a letter to his mother.

The subject of “murderabilia” arose and Fugitt explained there is a market for people who want to buy things from murders or murderers. Fugitt told the jury that Daniel indicated another inmate offered to pay him $30 for his artwork inside of jail. In another phone call to his mother in December 2013, Daniel tells his mother about the websites where murderabilia is sold.

“The are trying to make it illegal here in Texas because people are making a lot of money off of it,” he says to his mother, but points out that no such legislation exists in Colorado.

Sen. John Cornyn introduced legislation to outlaw murderabilia last year. In a December 2013 phone call, Daniel told his mom that even though there is legislation in Texas, murderabilia is still legal in Colorado. O’Dell said she would look into it.

When asked whether Daniel ever expressed any sort of remorse, Fugitt said the only semblance of remorse in the entire investigation was after authorities prodded Daniel during the initial interrogation.

In a letter to his mother, Daniel thanks her for sending books and for setting up his account on Meet-an-Inmate.com, a pen-pal website which allows users to find and write letters to inmates. Daniel asks his mom to alter his profile to “make him sound more bad.”

He also writes in another letter “Not much going on. Just living the dream. I am retired at 25 :) Don’t forget about me. Love Brandon.”

Fugitt presented photos of a spider tattoo on Daniel’s arm, leading the jury to believe Daniel was the person holding and pointing a gun in the photos stored on Daniel’s laptop that were shared with the courtroom on Monday.

Inmate’s interaction with Daniel

Inmate Louis Escalante took the stand Tuesday, telling the jury all about his jailhouse conversations with Daniel — including elaborate plans to hatch an escape.

Escalante earned the title of “trustee,” which allows him to work a job within the jail. As a trustee, Escalante is supposed to keep inmates in order, and he was tasked with keeping pencils, spoons and plastic cups away from Daniel.

Escalante told the jury he overheard Daniel talking to another inmate about a planned escape during one of his pretrial hearings in January 2013. The other inmate told Escalante that Daniel was planning the escape with another inmate, which reportedly included a plan where someone would enter the courtroom with guns.

Escalante tried to tell the other inmate it was crazy for them to try escaping because there were too many guards and police to go through. Meanwhile, Daniel told other inmates that Escalante was an untrustworthy snitch.

Daniel reportedly asked Escalante if he had been keeping up with the news of the officer who was killed at Walmart; Daniel kept a picture of himself that looked like it had been cut out of a newspaper.

“He wasn’t mad or sad about it,” said Escalante. “He was chuckling … He was smirking and laughing. I told him his life is on the line for capital murder. And he was like, ‘It is what it is.’”

Escalante continued about the conversation in jail with Daniel.

“I asked him if he had any remorse for the guy, and he nodded his head, ‘No,’” said Escalante.

Escalante served time in Williamson County for theft and also for another in Travis County, and he was housed at Del Valle in 2012.

Escalante met with Daniel’s defense attorney this past Sunday and confirmed he’d been following the case in the newspapers and on television.

Under cross-examination, the defense went to work on attacking the jailhouse informant’s credibility, talking to Escalante about his children and his desire to get out of jail as soon as possible.

Escalante expressed worry over one of his daughters because his girlfriend had gone back to stealing, selling drugs and partying. In addition, he was concerned because his daughter and her grandmother had been kicked out of government housing and his daughter had been missing school.

When questioned by the defense, Escalante said he was under the impression that cooperating with the prosecution would lead to earlier release. However, the prosecution made it clear when they initially brought Escalante to the stand that they cut no deals — which Escalante confirmed.

Defense attorneys presented a jailhouse phone call from Escalante to his mother, who talked about struggling with money. Throughout the course of the phone call, Escalante got emotional and teary-eyed.

In afternoon testimony, two Travis County corrections officers testified Daniel “took a bow” in front of fellow inmates who applauded him when coverage of a August 2013 pre-trial hearing came on the television. Another inmate yelled “(expletive) the police,” prompting Daniel to pump his fist into the air.

Jail video without sound shows inmates huddled around the TV from a distance. Jurors could faintly make out Daniel’s bow and fist pump.

Padron family testifies again

During the guilty/innocence phase of the trial, Johnny Padron testified about his brother’s life and death. On Tuesday during sentencing, Padron’s sister Linda Diaz was the final witness for the state before they rested.

“He gave over 21 years, more than half his life, to serving the public,” said Diaz as tears rolled down her face. “He was an honorable man of integrity and commitment.”

Diaz told the jury of how as a rookie officer, Padron pulled his partner from a burning house. The partner credited Padron with saving his life.

But for her family, this trial has been almost too much to take.

“It is horrifying. It is almost unbearable. It’s not fair,” said Diaz who also told the jury about the children Padron adored.

“His daughters are missing out on the tremendous daddy they could have had. He was very caring and very loving.”

Former classmate allegedly threatened

Daniel’s former classmate Caresa Marino, currently a police officer in Cheyenne, Wy., told jurors he threatened to rape her in the sixth grade. She said years later when she saw his face on the news regarding Padron’s death, she thought to herself: “I am not surprised.”

Marino said she was out during recess in Parker, Colo., playing soccer with her friends when Daniel came running up to her and told her to lock her doors and windows because he was going to rape her. She was 14 years old at the time and told jurors she hardly knew Daniel.

Marino wrote in a statement to the local sheriff that Daniel later came and apologized to her, telling her it was a joke. The defense let Marino read her statement from years ago to jog her memory about those details, though she told the jury she couldn’t remember.

Prosecutors were quick to ask her if she thought that the threat was funny, to which she responded, “No.” Marino then stepped down from the stand.

On Monday, the first day of the sentencing phase, the focus was on Daniel’s drug use and previous arrests.

We’ll likely be hearing much more about Daniel’s background and what type of person he is — with the defense likely calling on his friends and family to convince the jury that he is not a future threat and to spare him of the death penalty.

Defense attorneys argued throughout last week that Daniel did not intend to kill the officer, but it wasn’t enough to convince the jury — which took just more than an hour to reach its verdict after nearly a week of testimony.

The verdict means Daniel is eligible for the death penalty or life in prison without parole.

Dealings with police in Colorado

Colorado State Patrol Officer Sean Wycoff was the first to take the stand on Tuesday, speaking about incidents from Jan. 25, 2007.

Wycoff said Daniel was on his motorcycle going 80 mph in a 55 mph zone when Wycoff radioed to another trooper to watch out for a speeding motorcycle. Eventually, Daniel voluntarily stopped speeding away.

Daniel did not have a motorcycle license and was cited for that, as well as eluding a law officer.

Wycoff testified Daniel’s motorcycle was a “highlighter green” color, suggesting it was the same one he rode to Walmart the night of Padron’s shooting.

In an interview, Daniel admitted he was racing with a buddy and that he raced away from police because he didn’t want to get caught. Wycoff found .02 ounces of marijuana on Daniel; in 2007, pot possession was illegal in Colorado.

This is the third previous arrest that the jury has heard about in this phase: a DWI charge, a pot possession charge, and one for possession/eluding police.

Daniel’s time in jail

On Monday, Travis County Sheriff’s Deputy Corrections Officer Dustin Rade told the jury about Daniel’s time in jail, where he was housed by himself in June 2012 in a psychiatric observation cell.

Rade said he found a Gatorade bottle inside Daniel’s cell with materials to ferment “hooch,” slang for moonshine or bootleg alcohol. Two months later, Rade said he found six prescription pills in Daniel’s cell, where Daniel was reportedly hoarding them. That was Daniel’s second violation while in jail.

Defense attorney Brad Urrutia asked Rade if he was on duty when a noose was recovered from Daniel’s cell, to which he responded that he remembers hearing about it. Urrutia continued to ask if Rade was on duty when a second noose was found in the cell or when Daniel was involved in a dispute over property that was taken.

Jurors heard about a list Daniel kept with names and details of the jailers who watched over him, one of which read “Rade = Devil.”

The list appeared to keep track of jailers’ movements throughout the jail, and the defense asked why the list was never submitted as evidence in this trial. Rade said the list was submitted to his chain of command, but the jury never hears a clear answer as to why it wasn’t admitted as evidence.

Friends discuss drug use
During afternoon testimony, two friends of Daniel talked about his drug use.

Kristina Nance met Daniel through a Craigslist posting shortly after the break-up with his girlfriend that led to his “downward spiral.”

The two would spend a lot of time together doing “all kinds of drugs,” according to Nance. The drugs they tried included Xanax, cocaine, acid, mushrooms, and Ecstasy.

Nance testified the friendship ended because Daniel never repaid her $600 she gave him to purchase drugs.

Sometimes while hanging out, Daniel would show off his gun.

“It was more like a, ‘Hey, look. I have a gun.’ He told me it was a strictly protection thing,” said Nance who went on to testify Daniel seemed responsible with his weapon.

Daniel’s former roommate, Kelvin Davis, testified Daniel had what he believed was an extreme amount of Xanax the night of the shooting.

“I had never seen him take it but I saw him take it that day,” said Davis. “And it was more than I could imagine him being able to handle.”

While roommates, Davis said Daniel never complained about a bad childhood.

Prosecution paints the price of Padron’s life

Austin Police Detective Billy Parks worked in the Robbery Unit when Padron was killed. The prosecution called him up to the stand as the contents of Daniel’s backpack from the night of the shooting were examined: Reese’s Peanut Butter Cup ice cream bars, Little Debbie Creme Pies, peanuts, steaks, beef jerky, Hostess CupCakes and two bottles of champagne.

Parks’ time on the stand was brief and seemed as though his purpose Monday morning was for the prosecution to show Daniel was willing to kill someone for those basic items. Walmart Store Manager Alan Martindale took the stand next, dismissed even more quickly than Parks after telling the jury that the items in Daniel’s backpack totaled $56.90.

Austin police officer first to testify

The first on the stand was Austin Police Officer Cory Knop, who testified earlier in the trial as well. Knop told the jury that Daniel told him while at Austin Police Department Headquarters, “The next time you see me, I’ll be 70 years old.”

Knop also arrested Daniel on Feb. 1, 2012, on DWI charges, video from Knop’s dash camera that was shared with the jury Monday morning. The video showed Daniel answering in a “Yes, sir,” “No, sir” fashion during his Field Sobriety Test, at which point Daniel told Knop he had two shots of Jack Daniel’s and two beers before leaving pool hall Fast Eddies.

Knop tests and then arrests Daniel. While cuffing him, they have conversations about both graduating from Colorado State University. During the guilt-innocence phase of the trial, the jury saw video from Knop’s patrol car immediately following Padron’s death in April when Daniel asked Knop if he remembered him — likely from this February interaction.

Daniel told Knop he was willing to cooperate during the DWI arrest, but only if he could send an email. He told Knop he was a professional who worked hard for his job; Daniel later refused to take a breathalyzer.

While in back of Knop’s police car during the DWI arrest, Daniel asks Knop if there’s anything Knop can do to help with the charges because he is not a bad guy and is a good member of society. Knop told Daniel there is no discretion when it comes to DWI and that he would not be able to do anything to help him.

Daniel asked Knop if he thinks he was right in arresting him, to which Knop responded that he doesn’t arrest people who don’t commit crimes.

Opening statements

Opening statements began with Assistant District Attorney Gary Cobb reminding jurors that during jury selection they all said they could vote on the death penalty if it was appropriate. He told the 10-woman, two-man jury that there is a perception in society that women are weak and therefore are unable to administer the death penalty.

Cobb said they would hear evidence that Daniel had a hidden side that enjoyed defying officers and the law.

“Don’t make the mistake people made on April 6,” said Cobb, adding that people underestimated Daniel’s danger — ultimately leading to Padron’s death. “Think about what this person will do if you give them another chance.”

Cobb told the jury they’d hear evidence where Daniel said he would be “high on the pecking order” in prison for killing a cop.

“This is the time we can tell you about him, his whole life and everything that happened,” said Urrutia in opening statements.

Urrutia said drugs and alcohol cannot be used as a defense of guilt or innocence, but it can be considered as a “mitigating factor.” He continued to tell the jury that Daniel has battled depression since he was 9 years old, even attempting suicide at 11 — self-mutilation beginning during that tumultuous phase of his life.

Daniel’s parents allegedly neglected to help Daniel.

“There was a resistance in their attitude because they don’t believe in psychiatrists,” said Urrutia.

Urrutia said the prosecution will use statements Daniel made when he was 11- and 14 years old to paint him as a violent criminal, something Urrutia said is unfair. Defense attorneys said that in the controlled environment that jail is, Daniel has finally gotten the help he has always needed and is not a threat anymore.

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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