Day 3: Brandon Daniel sentencing phase

AUSTIN (KXAN) — Dr. Lee Carter told the courtroom on Wednesday that he believes Brandon Daniel has a severe depressive disorder that is also recurrent.

“People can change,” said Carter. “They are not forever destined to stay in that dark world that Brandon Daniel has been in.”

He told jurors at length about his evaluation of Daniel, which included 600 pages of Austin Police Department records.

“What he did is closely tied to his psychological disturbance,” said Carter, adding that it can be taken into account as a mitigating factor.

Carter is a psychologist from the Waco area and interviewed Daniel on two different occasions at the Del Valle jail.

During his evaluation, Carter also pored over Daniel’s high school disciplinary records, previous police involvement, high school and college transcripts, Walmart surveillance video from the day Padron died, and other material.

Carter began on the stand with Daniel’s personal and family history, telling jurors Daniel was the oldest of two children. His sister, often seen sitting behind Daniel in court, is six years younger.

Born in Wichita, Kansas, Daniel was raised primarily in Colorado. After his parents divorced, he lived with both parents off and on. Daniel described his mother as intimidating and domineering, while his father was passive.

Daniel said he did not have a strong connection to family members and “withdrew into his own world starting as an early adolescent,”  without any belonging to a family unit. Additionally, Carter said he had hardly any contact with his extended family.

Daniel told Carter that between ages 11 and 13, he realized he was headed toward a dark place. Carter told the courtroom that Daniel was never a socially involved or active person, was introverted, and likely had dissatisfaction with life as a child.

“If he fell into a depression, he would not know how to get out and would not know how to ask for help,” said Carter.

He was a quiet boy who kept his thoughts to himself. Daniel told Carter that he didn’t have many friends and felt like he didn’t fit in as a kid.

Even though Daniel did not finish high school, he got a GED and then went on to attend Colorado State University. Daniel was a good college student and even got a job right out of school. Carter told the jury toward the beginning of his testimony that he assessed Daniel was intelligent, estimating his IQ level to stand somewhere around 120 or 130 on the scale.

During his evaluation, Daniel told Carter he liked the feeling he got from drugs. Carter told the jury it was a form of self-medication against the depression.

“He felt punishment was inevitable, and if it is inevitable, ‘Why not see what I can get away with?'” said Carter about Daniel’s attitude in life.

Daniel told Carter he regularly felt suicidal and that he hated life, falling into the “worst depression I’ve ever felt” following the break-up with his years-long girlfriend.

Carter explained the relationship was Daniel’s one great hope for a relationship and sense of belonging and that when it fell through, Daniel “saw himself falling back into the dark world.”

Carter said that’s when Daniel ramped up drug use, adding that he felt much of the drug use was related to his depression — not just for fun.

The psychologist said Daniel wants to fit in. If in prison, he’ll likely do what is asked of him and will have an opportunity to develop artwork and education, according to Carter.

Another psychologist, Dr. Thomas Harrell, testified Daniel’s family life was not healthy and likely contributed to his drug use.

In an interview with Harrell, Daniel said his first experience with drugs came as early as the 3rd grade. He would also consume alcohol and drugs he found around the house, once even doing cocaine with his father.

A head injury Daniel suffered as a toddler may have long-term effects according to Harrell.

Daniel’s former advisor at the USDA

Dr. James Ascough joined the courtroom via Skype from Fort Collins, Colo. He works for the U.S. Department of Agriculture as a research engineer and told the jury he received a promotion thanks, in part, to a tool Daniel helped him develop.

“He was a quiet, respectful kid who worked very hard,” said Ascough. “He wanted to do well.”

Ascough and Daniel co-authored a chapter in an agriculture industry book.

“He was an extremely good programmer — well above average,” said Ascough. “I thought he was a sharp kid. He did well, very easy to work with, and we were pleased we hired him — thought I made the right decision.”

Daniel worked with Ascough in a program between the USDA and Colorado State University, where Daniel attended college. Students worked on objectives the USDA set forth, and Ascough said Daniel’s work was much better than the other students in the program.

Ascough told jurors that students were asked to bring forth examples of Java programming, and Daniel took in a bookkeeping/accounting program he helped create.

Outside of several lunches outside of the workplace, Ascough said he never spent any personal time with Daniel. During one of those lunch outings, Ascough said he noticed what appeared to be marijuana paraphernalia while riding in Daniel’s car.

Daniel also told Ascough about his motorcycle and his liking to ride it fast, very “matter-of-factly” telling Ascough about his run-in with police and eluding them.

When questioned by the prosecution about being surprised to hear about Daniel’s daily drug use in college – including cocaine, Ecstasy and pot – Ascough said he was surprised to find this out and had no inclination that Daniel was ever intoxicated while at work.

“I was absolutely stunned,” Ascough explained what went through his mind on hearing of Daniel killing an officer. “I read through the [newspaper] article, and I was shocked, horrified.”

Ascough got a phone call from a scientist colleague telling him about the news a couple days after the shooting, only after seeing it in the Fort Collins “Coloradoan” newspaper.

Ascough said he was also surprised to hear about the news because he had kept in contact with Daniel via email throughout the years, and he seemed to be excelling.

“He seemed proud of the work he was doing,” said Ascough, referring to Daniel’s job at Hewlett-Packard in Austin. “He said he was enjoying his job.”

Corrections officers’ interactions with Daniel

A couple of corrections officers who have dealt directly with Daniel in jail testified at the start of the day that the same person who killed Senior Austin Police Officer Jaime Padron in April 2012 is the same person who has been nothing but compliant and respectful.

“Based on what I’ve seen, he has just been real quiet,” said Travis County Corrections Officer Richard Low, the defense’s first witness. “He never comes out of his cell.”

The defense began its case Wednesday as the sentencing phase enters Day 3 for Daniel’s capital murder conviction, the first day uniformed APD officers were in the courtroom. They had been in plain clothes up until today, so as to not distract the jurors, but a handful of uniformed officers sat inside the courtroom throughout the morning.

Meanwhile, the defense looked to use Low to attack Tuesday’s testimony from jailhouse informant Louis Escalante about Daniel’s alleged escape plan.

However, Low told the jury that Daniel never gave him any trouble and that the escape plan was never documented by jailers. Low testified that if he had heard about such a plan, it would have been written up.

Under cross-examination, Travis County Assistant District Attorney Gary Cobb asked Low if someone who is hoarding pills and fermenting “hooch” would be considered compliant, to which Low responded, “No.” Hooch is slang for moonshine or bootleg alcohol.

During Monday’s testimony, 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, and was found two months later with six prescription pills.

Cobb asked  Low if an inmate sending out coded letters would be considered compliant. Low responds, “I suppose not.”

The defense called Corrections Officer Brad Payton to the stand, who testified that Daniel has never given him any issues and has always been compliant while on his watch.

“He goes along with what we tell him to do,” said Payton, who also acknowledged that Daniel broke jail rules by hoarding pills and making hooch.

The defense tried to show that making hooch is a common practice in prison, Payton telling the jury he has probably discovered hooch around 25 times himself.

Cobb questioned Payton about a jail escape, asking about it involving braided sheets. Payton responds, saying braided sheets would be a concern.

While the state tries to portray it as an escape mechanism, the defense will try to say it was a noose.

Corrections Officer Trey Long was the third to take the stand Wednesday, telling about Daniel’s preparation of a noose. In an effort to show that Daniel intentionally mentioned suicide attempts just to get to the Health Services Building — away from the general population — Cobb asked Long about an incident in November 2013, when Daniel went there because of a tattoo he tried to give himself.

Long said any mention of suicide or hurting oneself can land you in the “HSB.”

The state rested Tuesday after calling on Daniel’s former Colorado classmate, who told the jury he threatened to rape her. A jailhouse informant also took the stand to tell the jury about Daniel’s elaborate plans to escape from jail.

Prosecutors presented a number of phone calls from jail between Daniel and his mother, who railed on police and corrections officers during several points in the call. One of the phone calls was from April 25, 2012 — just 19 days after Daniel killed Padron.

Another phone call from March 10, 2013, outlined cryptic messages from Daniel to his mother where he walked 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.

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 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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