July-August 2010

Consenting adults

John Gillespie

Assistant Criminal ­District Attorney in Wichita County

The day before Thanksgiving is supposed to be a quiet day at the courthouse—I had been looking forward to getting caught up on paperwork. Instead, I got an urgent phone call from Sergeant Bill Henning with the Wichita Falls Police Department’s Crimes Against Persons Unit.

    Sergeant Henning and Detective John Laughlin had been investigating a shooting that happened on August 20, 2009. The victim, Amanda Rivera, had initially claimed the shooting was an accident, but when confronted by detectives, Amanda admitted that her husband, Jose Rolando Rivera, had shot her. She also told officers that she was afraid that Jose would go on a shooting spree at Sheppard Air Force Base (AFB), where he was stationed. She told them he might turn Sheppard into Fort Hood—words that jolted me from my holiday mindset because the Fort Hood shooting spree that killed 13 and wounded 30 had happened just three weeks before.

    While Sergeant Henning and I were heading to Sheppard AFB to coordinate with base security, we learned that Amanda was on her way to the JP to sign an affidavit of non-prosecution and ask for a PR bond for her husband, who had just been arrested.

    I called Kyle Lessor, one of our felony prosecutors, and had him intercept Amanda at the JP’s Office, letting the JP know of the risk that Jose Rivera posed and that the DA’s office opposed any bond reduction.

The golden retriever, in the living room, with a .22

The day Rivera shot his wife, he brought her to the emergency room. Amanda had a gunshot wound in the back of her right calf. X-rays revealed that the bullet had fractured her tibia bone.

    While at the hospital, Amanda told both her doctor and detectives that she had been cleaning their .22 long rifle and left it on the coffee table while she walked to the kitchen. Amanda then claimed that her 5-month-old golden retriever jumped up on the coffee table, causing the gun to accidentally discharge. Amanda claimed that her husband came home, found her shot, and took her to the hospital. She stuck to this story even when interviewed privately by detectives. Rivera told detectives the same thing, that he arrived home to find his wife with a gunshot wound.

    In my nine years as a prosecutor, I’ve encountered claims of self-defense, defense of a third person, and even the SODDI (“some-other-dude-did-it”) defense. But this was the first time I’d heard of a trigger-happy golden retriever!

    Because neither Amanda nor Jose would admit how the shooting actually happened, the detectives set out to investigate her story.

    Detective Laughlin took the rifle to a local gunsmith to determine its trigger pull-pressure and to rule out Amanda’s claims that the dog did it. The gunsmith’s experiments showed that the trigger-pull required 4.7 pounds-per-square-inch of pressure. Because the weight of the rifle was approximately equal to the trigger-pull pressure, the gunsmith concluded that any pressure on the trigger-pull while the gun rested on a smooth surface, such as a coffee table, would not cause the weapon to fire but would merely slide the weapon on the table. Thus, the gunsmith exonerated the good name of the golden retriever.

Second verse, a whole lot worse

The next step was for detectives to confront Amanda with the evidence that disproved her preposterous story. So Detective Laughlin asked Amanda to come to the station under the guise of returning the gun and closing his investigation. When faced with the gunsmith’s evidence, Amanda admitted that the golden retriever was innocent and that her husband had shot her.

    However, her second story was as bizarre as the first. Amanda claimed that she had “always wanted to know what it felt like to be shot.” She said that she wanted a Derringer for her birthday, but Rivera told her their 9mm was sufficient. She said they were arguing over how much damage a .22 could do. While her husband offered to take her to the gun range and “string up some meat” to show her a .22 wouldn’t do much damage, Amanda instead told him she wanted him to shoot her. Amanda also told detectives that Rivera had been suffering from post-traumatic stress disorder (PTSD) since returning from Iraq and that she was afraid he was “going to turn Sheppard into Fort Hood.” So she told him to shoot her to “relieve some stress.”

    Amanda then claimed they went to their bedroom, where he put some pillows over her leg because “he didn’t want me to get a muzzle burn.” She said he then counted to three and shot her. When detectives confronted Jose, he told them the same story, at which time detectives arrested him for aggravated assault with a deadly weapon.

An alarming backdrop

On April 20, a month before the trial, Wichita Falls was rocked when Ross Muehlberger, a 22-year-old loner, walked into the coffee shop at Hastings and shot four people with a shotgun. Muehlberger then went to a local bar and killed the bouncer before ultimately killing himself. Muehlberger was out on bond on aggravated assault charges at the time of his shooting spree. There was a public outcry over the fact that he had received a substantial bond reduction by the court, even though the DA’s office had opposed it.

    This shooting spree served as the backdrop for the Rivera trial and heightened the reality that Rivera was, in our opinion, a dangerous defendant capable of similar violence. In fact, his mental health records revealed persistent, severe homicidal ideations focused on both his commanding sergeant and random men and women in uniform on the base.

Just shoot me

Kyle Lessor was the lead prosecutor on the case, and I sat second chair. Both Kyle and I believed consent would be the biggest hurdle at the trial’s guilt/innocence phase. While we both thought that a person couldn’t consent to being shot, we discovered the consent statute is quite vague on this point.

    At trial, Amanda testified repeatedly that she consented to being shot and that Rivera would not have shot her without her permission. In his police interview, Rivera also told detectives that he shot Amanda only because she asked him to. So if Amanda could consent to being shot, a jury would likely find that she did consent.

    Section 22.06 of the Penal Code provides that consent is a defense to assault, aggravated assault, or deadly conduct, so by its express wording, §22.06 applies to aggravated assault. But the same statute provides that consent is not a defense if the conduct threatens or inflicts serious bodily injury. While Amanda suffered a broken tibia and was on crutches for eight weeks, she had fully recovered by the trial. Also, we had charged the aggravated assault as causing bodily injury with a deadly weapon. Thus, we doubted we could win under the “inflict serious bodily injury” prong.

    Our argument at the charging conference was that by using a deadly weapon in committing the assault, Rivera’s conduct threatened serious bodily injury. While there were few appellate cases on the consent statute (and none that applied to whether a person can consent to being shot with a firearm), we did find a Court of Criminal Appeals case stating that the “danger of serious bodily injury is necessarily established when a deadly weapon is used in the commission of an offense.”1 Based on that language, the trial judge declined to charge the jury on consent as a defense. Then, after 40 minutes of deliberations, the jury found Rivera guilty of second-degree aggravated assault.

“Guys like me have three options.”

At punishment, we admitted Rivera’s mental health records, which showed persistent, severe homicidal thoughts directed at people on base for over a year and a half. Rivera had fixated on his commanding sergeant, leading Amanda to fear her husband would take his 9mm to work and kill him. The records also revealed that Rivera contemplated “running down airmen” with his car and that he viewed “everybody in uniform as the enemy.”

    Amanda also testified that she didn’t call for mental help because Rivera had threatened “to kill his way out of the mental hospital if he was ever sent again,” and she believed his threats. Despite her fears, after Rivera’s November arrest, the court placed him in a local mental hospital from January through April. Those records revealed that he was diagnosed with a lack of empathy and had been attending “empathy classes.” (I still don’t know how you can teach a 33-year-old man empathy for others, but I digress.)

    The defendant also stated in March 2010 that, while he knows everybody thinks he did something wrong in shooting his wife, he still doesn’t see it that way. On April 7, he told his counselor, “Guys like me have three options: drugs and alcohol, suicide, or homicide then suicide.” Rivera also noted he never had thoughts about harming himself: “It’s always other people. It’s like, why would I hurt myself? That’s silly.”

    The defense called Rivera’s psychiatrist, who testified he had been diagnosed with PTSD and bipolar disorder with schizophrenia. The psychiatrist also testified that she didn’t believe Rivera was a threat to the community and that his prognosis was good if he stayed on his medication.

    Interestingly, Kyle’s cross of the psychiatrist revealed that she didn’t know about the defendant’s mental health records showing his severe homicidal thoughts. She was also unfamiliar with notations she had made in his records. We were shocked that a mental health professional would testify that someone was not a danger to the community without thoroughly reviewing his mental health history.

    The defense also called Rivera’s elderly mother who testified about what a good boy he was and how he had helped her after his father’s death. They also called various family members who testified something “just wasn’t right” with Rivera after he returned from Iraq.

Protecting the community vs. punishing mental illness

During closing, the defense asked the jury not to punish Rivera because he has a mental illness that developed while defending our country. Kyle countered that the defendant’s mental health records showed him to be a real and serious threat to our community, especially to Sheppard AFB and all the men and women stationed there. Kyle also argued that Rivera had already demonstrated his dangerousness by shooting his wife. He told the jurors it was their duty to protect our community.

    After two hours of deliberations, the jury gave Jose a 10-year probated sentence with a $10,000 suspended fine. In talking to jurors afterward, we discovered that the initial vote on guilt/innocence was 10-2, with two jurors not wanting to “convict an Iraq war vet,” even though he had admitted shooting Amanda and there was no legal defense for the crime. During punishment deliberations, those two jurors stated that they would never send an Iraq war vet to prison. The jurors also placed a lot of responsibility for the shooting on Amanda because of their crazy-attracts-crazy relationship.

    While we hope that Rivera will take his meds, continue his treatment, and be successful on probation, we cannot help but worry for the safety of the community. As a result of the verdict, a man who shot his wife and has expressed repeated, persistent homicidal thoughts against members of our armed forces is now required to live in our community for the next 10 years, where he cannot go to Wal-Mart, a restaurant, or the mall without running into men and women in uniform.

    Ultimately, though, the jury is the voice of the community. And the jury said it was willing to accept that risk after being presented with all the evidence.

1 Bell v. State, 693 S.W.2d 434, 437 (Tex. Crim. App. 1985).