Day 4: Brandon Daniel sentencing phase

AUSTIN (KXAN) — The defense rested their case Thursday but not before the jury heard tearful testimony from Brandon Daniel’s aunt on Day 4 of his capital murder sentencing phase.

Sherri Schuck told the jury she said she feels guilty for sending Daniel back home to his mother after he lived with her for some time.

“I know that you have to make a decision based on this event, and I’ve known Brandon for longer than that event,” said an emotional Schuck, speaking directly to the jury. “There’s nothing ever … that would make me think he would do something like that. I sit here, and I can’t believe we are here.”

Schuck is a county attorney of Pottawatomie County in Kansas — the equivalent to District Attorney in Texas –and helps prosecute cases such as Daniel’s for a living. O’Dell reportedly asked her sister to represent Daniel, but Schuck she declined, citing an ethical issue.

Before being a county attorney, Schuck was a law enforcement officer. The jury earlier in the sentencing phase heard Daniel’s mother, Mary O’Dell, disparage Schuck during a jailhouse phone call with Daniel, saying, “All cops are crooked, even my sister.”

Schuck said O’Dell views her as a “sellout” because she is a former officer and current county attorney, adding that she has had a strained relationship with her sister.

“My sister is a very closed person,” said Schuck. “She has moved several times, and we don’t have addresses.”

Schuck told the jury O’Dell wouldn’t speak to her about Daniel’s arrest until about six months later. Schuck got involved in the case, “for Brandon’s sake,” saying things got better between her and her sister but then again recently deteriorated.

Schuck told jurors she has not had any “positive contact” with her sister in six or seven months, saying she didn’t even know where O’Dell is currently.

While Daniel’s father attended the first few days of his son’s trial, he’s been absent ever since, and Schuck said she didn’t know if her sister was in Austin for the trial.

In fact, Schuck didn’t even want her sister to know that she was testifying on Thursday, confirming O’Dell was “emphatic” she not testify at this trial. The defense managed to convince Schuck into testifying.

Schuck elaborated on the divide between her and her sister, saying she doesn’t feel O’Dell is very friendly person.

She went on to describe O’Dell’s liberal attitude about marijuana use, saying she thought that’s what led her to move Daniel’s family to Colorado. Schuck said Daniel’s parents expected him to be an adult and make decisions about his life, even though he was just a kid.

She said at first, she thought her sister was an indulgent mother who spoiled the kids because they did what they wanted. However, Schuck later found out the kids did what they wanted because the parent wasn’t present a lot of the time.

At around age 15 or 16, Daniel went to live with Schuch for a couple of months, picking up a job at McDonald’s. Schuck testified that when Daniel lived with her, she did feel he was depressed and thought it was because he was homesick.

“Brandon was always polite, always happy,” she said. “But the longer he was there, he seemed really sad. He seemed homesick.”

Schuck sat down with Daniel at one point to lay down some house rules, making clear that she couldn’t allow pot or drugs in her home. Schuck said it was particularly important because of the line of work she and her husband were in; her husband’s a retired officer.

Daniel told his aunt that his mother let him drink at home, to which she responded that things would be different in her household. She did mention that Daniel later admitted to taking some of the alcohol in her refrigerator after she approached him when it went missing.

“If I could have gotten him help when he needed it, if I’d given him rules to follow,” said Schuck, telling the jury that was the role she could’ve played in preventing Daniel from killing Padron. She felt guilty for letting him go back home.

Schuck started to cry as she testified about the day she got the call concerning Padron’s death, initially believing the detective was calling because Daniel may have been a witness. She thought perhaps he was in hiding, but then the detective said he had been arrested.

While on the stand, Schuck spoke about Daniel’s ex-girlfriend. The jury’s heard about the breakup with Jenna Feland that sent him into the “downward spiral” ultimately leading to Padron’s death.

Schuck said Daniel’s mother didn’t approve of Feland, saying she wasn’t up to Daniel’s standard. When Schuck pointed out to O’Dell that he seemed happy with Feland, O’Dell reportedly responded, “That’s not everything. It is about having an equal.”

During a brief recess, Schuck got off the stand and joined her niece, Samantha Daniel. She sat down next to Daniel’s sister, gave her a hug, and spoke with her.

Schuck returned to the stand, answering about whether Daniel ever did anything to indicate that he had brain injuries. Schuck said, “No,” though she said she knew he had a concussion as a child.

She went on to tell the jury that she knew Daniel before and after the skateboarding accident, saying he was more outgoing before the accident was still introverted.

Asked if Daniel has ever expressed remorse about killing Padron, Schuck said: “Not to me.”

That’s the last thing the jury heard from her before she was dismissed from the stand.

O’Dell was criticized even more by Dr. Harold Scott, a physician with a specialty in psychiatry.

From an interview with Daniel in jail, Daniel described his mother as “nuts.” While trying to conduct an evaluation on Daniel, Scott said he reached out to his mother and sister, only to be denied.

From monitoring jail phone calls, Scott said O’Dell would threaten to sue Travis County Sheriff’s Office for how they treated Daniel in jail and even blamed Officer Jaime Padron for her son’s situation.

Scott described O’Dell’s scathing criticism of a jail psychiatrist.

“She was a piece of garbage, she was paid off by APD. Crazy to talk like that. I understand being supportive and loving your son, but that doesn’t serve any purpose,” said Scott.

Daniel’s father did speak with Scott in an interview, but had to end it prematurely due to illness. In the interview, Scott testified Daniel’s father felt “100 percent responsible” for the shooting and wished he was the one who would be executed.

But when Scott asked him why they did not seek to get their son psychiatric help as a kid, the father asked, “Do you trust the government?”

Once the defense rested, the state played another jail call Daniel made to Samantha, his sister, as a part of their rebuttal case. In the call, Daniel asks his sister to help him and gets frustrated when she declines his request to send a message to ex-girlfriend Jenna Feland.

Daniel says his parents are not helpful and berates his sister for not assisting.

“If you do not want to help me, I definitely have no reason to talk to you,” he says as his sister begins to cry.

“Bran, I don’t want you to not call me,” says Samantha shortly before the call ends.

Daniel’s HP co-worker visits him in jail

Billy Little, a software engineer for Hewlett-Packard, took the stand first on Wednesday.

He told the jury he met Daniel on a company trip intended to get acquainted with co-workers; Little worked in Houston while Daniel was stationed in Austin. Little told the jury that he worked with Daniel via teleconferencing and other forms of communications, often getting explanations on how certain things worked.

“Brandon was one of two or three people who was most adept at the new technology,” said Little, speaking about Daniel’s intelligence.

Little said he received an email from higher-ups at HP notifying him of Daniel’s arrest; the email had guidelines on how employees should handle it, particularly regarding contact with the media.

“It stunned me,” said Little. “I had to sit and stare at the email to make sure this wasn’t a hoax from someone within the company making a joke.”

Little said even after the arrest, he wanted to reach out to Daniel. His faith led him to go visit Daniel in jail at least four times.

“We did share with him our faith and some items we felt would be helpful to him,” said Little, wanting to help Daniel manage through jail time.

Little said he did not feel Daniel was totally receptive, but also did not reject it. Daniel took time to listen to what Little said.

In a letter from Daniel to Little, Brandon had doubt about religion. He wrote that people tend to find religion in desperate times but that it’s a false hope.

“For a man who has few choices here, his choices for eternity are the same as you and I,” said Little, talking about how he hoped to help Daniel

Under cross-examination, Little said he never talked to Daniel about what happened at Walmart and never asked.

Day 3 brought testimony from a handful of corrections officers who dealt directly with Brandon Daniel in jail who said he was compliant and respectful, and psychologist Dr. Lee Carter told the courtroom that he believes 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. 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.

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. Daniel worked with Ascough in a program between the USDA and Colorado State University, where Daniel attended college.

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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