Life Sentence Upheld for Wal-Mart Shoving Death

     FORT WORTH, Texas (CN) – A fleeing thief who pushed a Wal-Mart employee to the ground, inflicting fatal injuries, deserves a life sentence, a Texas appeals court ruled.
     William Alan Kennedy was never charged in the death of 56-year-old Bruce Florence, whom he knocked down while trying to run out of a Fort Worth Wal-Mart in 2010 without paying for the TV in his arms.
     Since Kennedy dropped the boxed television in his collision with Florence, the repeat offender then went to a nearby Target and successfully stole another television.
     Florence, who reportedly suffered from hepatitis and had been on the waiting list for a liver transplant, died nine days later in a hospital. His cause of death was reportedly listed as end-stage liver cirrhosis.
     At trial, a forensic video analyst testified as to surveillance video that showed Kennedy pushing Florence with his hand and running through him during his escape.
     A medical examiner also testified that Florence’s injuries – a skull fracture, brain bruise and bleeding – did not significantly contribute to his death, but the push or strike from Kennedy that led to his injuries was capable of causing death or serious bodily injury in light of Florence’s pre-existing liver disease.
     Jurors convicted Kennedy of aggravated theft in 2011, and the Tarrant County District Court sentenced him to serve life in prison. He meanwhile pleaded also guilty to the Target theft.
     A divided three-judge panel for the Court of Appeals for the Second District of Texas affirmed on Feb. 28.
     “Viewed in the light most favorable to the verdict, a rational jury could have combined the evidence from the video and the testimony of the witnesses, including that of the medical examiner, to conclude that appellant used a deadly weapon,” Justice Lee Gabriel wrote for the majority. “We hold, therefore, that the evidence in this case is sufficient to sustain the jury’s deadly-weapon finding.”
     Prosecutors were not required to show that Florence actually suffered serious bodily injury, only that Kennedy used his hands or the television in a manner that was capable of causing serious bodily injury, according to the ruling.
     The jury also had the benefit of watching surveillance video showing Kennedy using his hands or the box during the collision, resulting in the deadly weapon finding.
     “Regarding size of the object and its potential to inflict death or serious bodily injury, appellant is not a small man; he stood between five feet eleven inches and six feet tall, and weighed approximately 200 pounds,” Gabriel wrote. “The television had a twenty-six inch screen, and there was no testimony regarding its weight. Still, the jury could reasonably conclude that a man of appellant’s size, carrying a television set while running into another man of compromised health could mete out serious injury with his hands or the set.”
     Kennedy failed furthermore to show ineffective assistance of counsel at trial with the majority saying his attorney’s strategy had been “obvious.”
     The lawyer attempted to argue Kennedy was guilty only of theft because he did not intentionally push Florence down, according to court records.
     “A strategy is not outrageous simply because it fails to produce an acquittal,” Gabriel wrote. “Here, counsel reasonably could have calculated that the risk of not making the objections appellate counsel now faults him for not making was outweighed by the payoff of playing the video for the jury, slowly, frame-by-frame, and arguing that the state’s expert opinion was based on junk science.”
     In a dissenting opinion, Justice Lee Ann Dauphinot feared that, in the court’s “zeal” to go after crime, it was “in danger of going seriously astray” from fundamental constitutional protections for the defendants. She questioned the Texas Court of Criminal Appeals’ ruling in Tyra v. State, which held “everything that causes death is a deadly weapon, no matter what its intended use.”
     The defendant must know or should know that the object is a deadly weapon or is being used as one, Dauphinot argued.
     “Suppose a high school tennis player gets angry because he believes his opponent has been intentionally making bad calls, so the angry player throws a small athletic bag at his opponent, and unknown to our angry tennis player, the bag contains explosives that explode when they hit the other boy, killing him,” the dissent states. “Clearly our angry player has committed assault, but has he really used a deadly weapon? The question, then, is does the actor have to know or should he know that he is using a deadly weapon?”
     In this case, nothing explains how Kennedy was supposed to know that using his hand to push himself away from Florence was turning his hand into a deadly weapon, Dauphinot argued.
     “Nothing in the record reflects any intent to cause death or serious bodily injury,” she wrote. “Indeed, the complainant’s fall resulted in death only because of his seriously compromised liver.”
     She added: “I believe that if an actor mistakenly thought that he was using a stage prop instead of a real revolver loaded with live rounds when firing at his antagonist in a play, he would be able to rely on the defense of mistake of fact. To me, that suggests that the actor must know or should have known that he was using a deadly weapon, not just something that could possibly be used in some manner to cause death or serious bodily injury.”

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