Yesterday we saw how creative sentencing can look pretty splashy on the front page of the newspaper. Today we examine how what seems popular gives the public a false sense of security and can lead the Court to faulty reasoning and making an unsound decision.
It’s reported that a homeless man who is infected with HIV spits in the face and mouth of a police officer and draws a 35-year sentence. Before sentencing and while still in jail he bit two other inmates and attacked prison guards. Concerning the charges for which he’s being sentenced his crime is spitting in an officer’s face. The charges for which he was convicted are harassing a public servant with a deadly weapon. Seeing that he’s been charged as a habitual offender the minimum sentence is 25 years. So all in all we get to pay the freight to incarcerate a bum for spitting and we get to pay for him for the next 35 years.
This sentence is based on a false premise. The premise for this sentence is that spit from an HIV infected person projected into a person’s face and mouth is a deadly weapon. I’m sure the gay community that regularly puts up with employers discriminating against them because of fears about HIV will not find this sentence and the misconceptions it reinforces very satisfying.
How does the CDC report that HIV can be transmitted? The CDC reports that HIV is transmitted through sexual contact, needles or syringes or other instances where blood is transmitted to an uninfected person.
HIV is spread by sexual contact with an infected person, by sharing needles and/or syringes (primarily for drug injection) with someone who is infected, or, less commonly (and now very rarely in countries where blood is screened for HIV antibodies), through transfusions of infected blood or blood clotting factors. Babies born to HIV-infected women may become infected before or during birth or through breast-feeding after birth.
And what does the CDC say about saliva transmitting HIV? They say HIV transmission isn’t likely.
HIV has been found in saliva and tears in very low quantities from some AIDS patients. It is important to understand that finding a small amount of HIV in a body fluid does not necessarily mean that HIV can be transmitted by that body fluid. HIV has not been recovered from the sweat of HIV-infected persons. Contact with saliva, tears, or sweat has never been shown to result in transmission of HIV.
How does Texas law define a “deadly weapon”? The use of deadly force was discussed in a 2002 appellate case in which the defendant in apparently robbing a convenience store displayed to the store clerk an unloaded BB gun. Justice Meyers from the Court of Criminal Appeals of Texas discussed the disconnection of logic and science within the lower Court opinion. Judge Meyers summarizes his position as follows.
“I disagree with the majority for the simple reason that an unloaded gun can't be fired. Appellant's BB pistol was a deadly weapon because it was "capable of causing serious bodily injury when fired." Majority Op. at 3. Yet if appellant's gun was unloaded, it could not be fired and would be incapable of causing serious bodily injury if "fired" at someone. Whether a BB gun is loaded or unloaded is crucial to any deadly weapon analysis under section 1.07(a)(17)(B) because that determination places the weapon either within or beyond the reach of the statutory definition of "deadly weapon."”
Under Texas law you have two categories of deadly weapons. In the one category we have guns, and in the other category, instrumentalities that can be used to create deadly force.
The universe of deadly weapons is carved into two discrete hemispheres by Texas Penal Code section 1.07(a)(17). The first hemisphere is composed of those weapons that are firearms "or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." Tex. Penal Code § 1.07(a)(17)(A) (Vernon 1994). If the State alleges and proves that a weapon falls within this category, "it is not necessary to verify that the object was really capable of causing death." Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991); see also Wright v. State, 582 S.W.2d 845, 847 (Tex. Crim. App. 1979) and Grant v. State, 33 S.W.3d 875, 881 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (no requirement that firearm be loaded to support deadly weapon finding).
The second category of deadly weapons is comprised of "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code § 1.07(a)(17)(B) (Vernon 1994). As the majority notes, appellant was charged with using a deadly weapon as defined in this subsection. Majority Op. at 2. What the majority's analysis then fails to acknowledge, however, is that our case law has consistently analyzed a weapon's capability to inflict deadly harm in reference to the particular weapon on the particular occasion it was used. See Thomas, 821 S.W.2d at 619.
Because capability has been defined in reference to a weapon's actual ability to cause the requisite harm on the occasion in question, weapons that are considered dangerous and generally capable of causing serious bodily injury may fall outside the definition of deadly weapon if they are not functioning. Mosley v. State, 545 S.W.2d 144, 145-46 (Tex. Crim. App. 1976). Contrariwise, objects that are generally not considered dangerous as such may become so by virtue of the manner in which they are used in the offense. Thomas, 821 S.W.2d at 620 (automobiles, telephone cords, bathwater, feather pillows, golf clubs, shanks); Crutcher v. State, 969 S.W.2d 543, 546 (Tex. App.-Texarkana 1998, pet. ref'd) (flashlight); Sellers v. State, 961 S.W.2d 351, (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (fire); Davis v. State, 955 S.W.2d 340, 352 (Tex. App.-Fort Worth 1997, pet. ref'd) (mixture of sedatives); Najera v. State, 955 S.W.2d 698, 701 (sexual organ and bodily fluids of man who was HIV positive); Powell v. State, 939 S.W.2d 713, 717 (Tex. App.--El Paso 1997, no pet.) (feet); Morales v. State, 792 S.W.2d 789, 790 (Tex. App.-Houston [1st Dist.] 1990, no pet.) (hands and underpants); Cooper v. State, 773 S.W.2d 749, 750 (Tex. App.--Corpus Christi 1989, no pet.) (hands); Compton v. State, 759 S.W.2d 503, 504 (Tex. App.-Dallas 1988, no pet.) (broken bottle).
These cases simply echo the plain language of Penal Code § 1.07: if an actor uses or intends to use an object in a manner in which it is capable of causing death or serious bodily injury, it is a deadly weapon. Nevertheless, no use or intended use on the part of a defendant can trump the laws of physics. If an actor shoots blanks or threatens a victim with a wet towel, he has not used a deadly weapon because neither implement is capable of causing death or serious bodily injury in the manner used.
So where in the evidence was the State’s proof that this man’s spit could cause the transmission of HIV? In a court of law is a sense of dread and fear in general by society enough? Or is actual proof required. Let’s go back to the woman paying for two years of college for the dead man’s sons. We might all feel better knowing retribution has been assigned. But how do the son’s feel about receiving money from the person whose drunk driving killed their father? Do they want continued contact with her? If unable to make these tuition payments will the continued contact along with the disappointed expectations on the part of the victims create more damage?
And what about the sentence imposing the victim’s image on a website controlled by the convicted person? I wouldn’t want the guy who was responsible for my father’s death in charge of creating website imagery that included my father.
It seems to me that the Courts use to deal in reality, science along with causes and effects that could be proven. But now we seem to be pandering to societal fears and what makes a person feel good when they read about it but implies something that doesn’t exist. While creative sentencing may make society feel good, one has to wonder why the Courts are going down this road. It’s a slippery slope for sure and one in which there will be a day when we find ourselves trying to explain the unexplainable. A day when we find ourselves part of a growing problem with the political arena – a place where fear mongering is used to persuade people to think a certain way – even though it makes no sense from a scientific perspective. Now I agree that the legislature has broad powers to define the world as it sees fit but a reality check by the Judiciary was always a part of why this American system of justice seemed to work so well. If the Courts act as politician's do pandering to public opinion, and apply laws without regard to scientific proof, then in the end we look more and more like a third-world country (A communist society) that dictates what we can think by redefining the language we use; no matter that it makes no sense in the real world. Telling us we are better off even though reality tells us differently may change the words we are allowed to speak but it will never change the reality we see and hear or the thoughts we think.
You may think this is just one HIV infected homeless man that has been put away for a long-long time. But what is at stake here is more than just one person that most consider unworthy of redemption. Reasoned decisions have to be based on reality not just words. When words themselves are what we fear, when words become a means to an end, we degrade ourselves to rule as a mob does. A mob rules not by a reasoned decision-making process but out of what makes it feel good. So while creative sentencing and result oriented reasoning by tort reformists may today make us feel safer, tomorrow it may turn against us when society has some unproven but feel-good reason to seek redemption.
Both of the above sentences are legislative and judicial mistakes in logic and public policy whose ramifications have yet to be fully realized. You might feel good knowing this person is carrying around a picture of the victim, or sleeping in the woods thinking about cats, but is it good solid judicial reasoning? In my experience good judicial reasoning never makes a splashy headline.
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