(TX) Man Who Shot Musician May Not Be Charged

[Bartholomew Roberts]

Here we’re talking of an intentional shot, clearly justifiable deadly force, where the victim was reluctant to kill if he could frighten instead.

Thumper summed it up nicely. In looking for cases for you, I found dozens of cases where the defendant said that they fired a warning shot that ended up killing the person they were trying to scare off. As you can tell by the term "defendant" and the fact that these are appellate cases, none of those ended well for the shooter.

The major difference in many of those cases is that the shooter was basically lying in an attempt to cover up murder; but there were some cases that look more similar to our case here. One example is State v. Winebarger, 617 S.E.2d 467 (W. Va. 2005):

Mr Winebarger ran several small businesses and carried a .22 derringer for protection. He loaned his car to his daughter and her husband with specific instructions not to park it in front of "Joe's Bar." Driving home with his wife, he sees the car parked at Joe's Bar and decides to take the car home with him, leaving his son-in-law to walk home.

Angry son-in-law shows up at his house drunk and becomes violent and aggressive. Mr. Winebarger fires a "warning shot" that strikes his son-in-law in the neck and kills him. His initial statement to officers was that he was trying to shoot up in the air to scare him off. At pre-trial hearing, his lawyer claimed both accident and self-defense. He was convicted of voluntary manslaughter and sentenced to ten years in prison. That conviction was upheld on appeal.

Now unlike our shooter here (hopefully); the prosecution was able to show that on several instances in the past, Mr. Winebarger had brandished a firearm and made threats. That was enough to sink him - and his claim that the shooting was accidental opened the door for the prosecution to introduce that evidence.

Finally, in many of the cases I looked at, there weren't many examples of single warning shots. In fact, most often, people fired several warning shots because quite frequently, the assailant interpreted the warning shots as an unwillingness to use deadly force and kept on coming. As a practical matter, I don't think warning shots serve their purpose if reading these cases is any indication.

 

[JohnKSa]

The situation as described would allow the shooter to claim that his use of deadly force was justified under at least two sections of TX Penal Code.

HOWEVER, the defender's reasonable belief that deadly force is immediately necessary is ALWAYS a requirement for the legal use of deadly force under the TX Penal Code. "...when and to the degree he reasonably believes the deadly force is immediately necessary" is the exact quote. If his statements can be construed as proof that he did not believe that deadly force was immediately necessary that can eliminate his legal justification.

Practically speaking it's not going to be an issue, IMO. He's not going to be charged.

 

[Double Naught Spy]

I do believe the homeowner did feel that lethal force was immediately necessary. He believed the Bohemian was trying to gain entry into his home. He knew that the man had NOT responded to repeated verbal commands and warnings. So to preclude entry, he opted to attempt to use lethal force as a demonstration of power (warning shot...which is a concept I think is flawed, so I am not defending the notion of warning shots at all) of what the guy could expect if he did gain entry.

As noted, the police are not asking for charges to be pressed because they obviously feel the homeowner met the criteria for the use of lethal force.

Bartholomew Roberts, I understand your case example, but in that case, was the defendant in a situation where lethal force use criteria were met? The example you cite and the 911 call are both good examples of the fact that folks should not speak to the police without a lawyer present. In the Dallas case, the wife was simply a witness and should have stayed on the phone. The husband should never have gotten on the line.

Finally, in many of the cases I looked at, there weren't many examples of single warning shots. In fact, most often, people fired several warning shots because quite frequently, the assailant interpreted the warning shots as an unwillingness to use deadly force and kept on coming. As a practical matter, I don't think warning shots serve their purpose if reading these cases is any indication.

This is a very neat point that I am glad you brought up. My personal opinion is that warning shots do just that, demonstrate an unwillingness to use such force against another person. Then the result is that your ears may hurt, there may be smoke, and you are not down one round and you still have a person who is a threat to you.

 

[joab]

I’ve seen Ayoob’s account of the trial of the man who fired by accident, but that’s not the same thing. Here we’re talking of an intentional shot, clearly justifiable deadly force, where the victim was reluctant to kill if he could frighten instead. The distinction here is ‘willing to kill immediately’ vs. ‘hesitant, even though justified.’

I am sure Ayoob has many stories such as that, however as you point out they have nothing to do with this conversation
The accounts I spoke of were of people who intentionally shot and then poorly articulated their reasons for shooting
The problem with your hesitant though justified defense is that he would not have to convince any of us
What may sound perfectly reasonable to any on this board may sound like self serving back pedaling to someone who has never experienced crime other than CSI

Now they're saying that some medication that he was taking to try and quit smoking sent him over the edge and made him psychotic. Who knows, maybe it's true. I've heard about some of that medication having some weird side effects. Mixed with alcohol maybe it makes the medication stronger.

Most likely the medication was Welbutrin and it does have a strange effect on people
It lowers anxiety for one, and I couldn't stop giggling and saying extremely inappropriate things to customers and corporate execs
I could have substituted it for something a lot cheaper, but then I was trying to quit smoking

I don't think you could find a person on this board that would fault the home oner for shooting
Some may find fault in the exact way that he did it, but I don't think anyone will say that he should not have

The conversation now has moved to the principle of ****

 

[Double Naught Spy]

Most likely the medication was Welbutrin and it does have a strange effect on people
It lowers anxiety for one, and I couldn't stop giggling and saying extremely inappropriate things to customers and corporate execs
I could have substituted it for something a lot cheaper, but then I was trying to quit smoking

It was Chantix, not Welbutrin.

 

[Bartholomew Roberts]

Well I have been disgusted with the local news reporting on this. Last night I watched TV and there was a long montage of this guy and what a great person he was followed with a "he was shot by his neighbor who mistook him for a burglar."

The whole thing making it sound like the neighbor was a gun-toting idiot who ended a promising life prematurely. No mention of the girlfriend beating, no mention that the reason the neighbor thought he was a burglar was because he was beating in the neighbor's door at 4am, had ignored multiple verbal warnings, etc.

This guy may be facing more trouble than it looks like with some of the slanted news coverage around this case.

 

[Pepper46]

"Personally, I would have waited until the door got broken down and if the guy entered further after realizing he was in the wrong house then I would have shot, I do not believe in scaring people or warning shots."

While we all would like to say that we know exactly what we would do in specific situations, I have to disagree with you on this one.
I think I would do the same, but don't know until the situation presents it's self.

 

[gunsmith]

Thank you for all the great replies to this thread.

Very interesting, after master blaster and cosmolines post, I may shoot through the door if I have too, the Chesire CT massacre could have been on the shooters mind.

The dead guys friends are well known and very connected to the media, as Bartholomew Roberts pointed out, this could get ugly for the guy.
The battered GF will probably look at her abuser with rose colored glasses.
I hope they do a quick toxicology on the guy for coke/meth.

I have always thought that it would be impossible to miss a guy coming through your door but after reading this great thread, I may have to accept I was wrong.
maybe

 

[joab]

It was Chantix, not Welbutrin.

The side effects to Chandrix are the same ones sung about in the Pepto Bismol commercials

varenicline , the active ingredient in Chandix is basically a pleasure receptor blocker and is also effective in countering the effects of alcohol
There may be more to this end of the story

When I wanted to quit smoking the insurance companies would not pay for Zyban to stop smoking but they would pay for Welbutrin for depression
So I told my doctor I was depressed because I couldn't stop smoking

 

[TexasRifleman]

This guy may be facing more trouble than it looks like with some of the slanted news coverage around this case.

Dallas DA isnt"t named Nifong is he? This is exactly the kind of case that can go the wrong way even when all the evidence and laws are on the side of the homeowner, the real victim of this.

 

[Bartholomew Roberts]

Dallas DA isnt"t named Nifong is he?

No, the Dallas DA is a local attorney named Craig Watkins who ran as a Democrat in 2002 and was defeated. He ran again in 2006 and was elected as Republican voters overwhelmingly declined to show up. He has been in office just over nine months so far, so no real idea of what angle he will take.

 

[Don Gwinn]

The owner of the local Army surplus place/gunshop was involved in a gunfight with a nutcase inside his shop a few years ago. He made his way to his office, where his pistol was, with this nut trying to kill him. A slug went past his ear. The office door closed. Then someone ran up to the office door and tried to open it, so he fired through it.

He shot his son.

In the moment it took him to get to his pistol and get turned back to the door, his son had actually driven the nutcase out and then turned to the office to check on his father. He got a 230 gr. bullet in the shoulder for his trouble. He lived and even went back to active duty with the Army eventually, but can you imagine what his dad thinks about every day?

 

[MechAg94]

I think this shoot was justified, but I agree that his statements about a warning shot could give him problems. Hopefully, he will be okay.

 

[Frog48]

Anybody in the DFW area listen to 1310 AM "The Ticket"? Normally I like The Ticket, but this story has really bothered me...

Apparently Albrecht was good friends with a few of the on-air guys, and its pathetic and sickening how everyone at the station keeps sticking up for him, basically saying that the situation wasnt Albrecht's fault... that he was such a great guy and blah blah blah.

Nevermind the fact that he was drunk, beat his girlfriend, and tried to B&E someone's house. Sorry, I dont buy it that some stop-smoking medication can push someone to actions of such an extreme.

As far as I'm concerned, it was a good shoot, and he got what he had coming.

 

[Carl N. Brown]

by Don Gwinn
""The owner of the local Army surplus place/gunshop was involved in a gunfight with a nutcase inside his shop a few years ago. He made his way to his office, where his pistol was, with this nut trying to kill him. . . . The office door closed. Then someone ran up to the office door and tried to open it, so he fired through it. He shot his son.""

Tactics: if the stuff has hit the fan and people are in defensive mode,
always announce yourself (and get acknowledgement) before trying
to enter.

 

[Technosavant]

He lived and even went back to active duty with the Army eventually, but can you imagine what his dad thinks about every day?

No more Father's Day cards?

 

[Browning]

It Looks Like The Home Owner Had A Reason To Be Concerned.
http://www.dallasnews.com/sharedcontent/dws/news/city/dallas/stories/091007dnmetburglaries.35956e2.html

Deceased Musicians Parents Speak To The News.
http://cbs11tv.com/seenon/local_story_250165935.html

According to the report I saw last night (it's a local story) "charges against the home owner are unlikely".
http://cbs11tv.com/topstories/local_story_249222638.html

 

[Bartholomew Roberts]

Good news for the man who had to defend his home. It sounds like the parents of the deceased were remarkably understanding and won't be out for revenge.

Looking at warning shot cases, I found a 1975 Texas Supreme Court case where a Dr. Gilliam had fired a warning shot at an 18yr old boy stealing his car battery at night. The warning shot struck him in the head. No criminal charges were filed; but Dr. Gilliam was sued in civil court and held responsible for negligent/wrongful death. Based on the court ruling, if Dr. Gilliam had said outright that he shot him (he stated he fired from 10yds away with a .22LR at the boy's feet and instead struck his head), he might have got off entirely.

Since 83.001 has passed, I don't know that the 1975 holding would still be good law in Texas. Also, it doesn't look like the parents are interested in bringing the suit and there are some important fact differences (large man kicking in your door at 4am v. teenager trying to steal some stuff out of your car).

 

[Carl N. Brown]

Parents Of Killed Musician Talk To CBS 11

Jay Gormley
Reporting

(CBS 11 News) DALLAS The funeral for Carter Albrecht will be held Friday at Parkway Hills Baptist Church in Plano. On the night before they bury their son, the musician's parents are talking exclusively to CBS 11's Jay Gormley.

"The sadness is amazing," said Ken Albrecht, Carter's father. "In a lot of ways, it will be with us until our very last breath, and it will probably never lessen."

It's the type of answer you would expect from grieving parents, but Judy and Ken Albrecht of Plano say their son is not the type of person portrayed by his actions early Monday morning.

"That is not Carter Albrecht. That is not his life of 34 years of gentleness and compassion," Ken Albrecht said. "Carter dated a lot of women. They all cherished him and loved him. He never, ever touched anyone."

Police say the 34-year-old musician hit his girlfriend, chased after her and then wandered over to a neighbor's house where he tried to kick in the door.

Fearing it was an intruder, the neighbor fired a warning shot. It turned out to be a deadly shot.

"I know that he and his wife were very frightened. It was obviously dark, and they could not tell who it was," his mother said. "I wish he hadn't had a gun. I wish he hadn't fired. But I don't know what I would have done."

"They didn't invite someone, at that time in the morning, to be kicking at their door. Whatever action he took, that was a decision he had to make at that time," Ken Albrecht said. "He had a house to protect, a wife to protect, and my heart just goes out to them."

No one really knows what set Carter off. His parents confirm that he was taking the prescription drug Chantix to quit smoking. The Albrecht's believe the drug mixed with alcohol altered their son's mood.

"He was pretty excited about not smoking, and he did take it," Judy said. "That's the only connection we have with his out of character behavior."

Carter was considered one of the brightest talents in Dallas. He was a member of several bands, including Sorta and Edie Brickell and the New Bohemians.

His musical talent was encouraged by his mother, a life-long piano teacher.

"In every walk of his life, he was determined to learn and determined to excel," she said.

The Albrechts said Carter was scheduled to play with Edie Brickell and the New Bohemians at a Carnegie Hall tribute to Elton John on Oct. 10.

They said Carter never wanted to bask in the spotlight. Instead, he just wanted to make his fellow bandmates better musicians and better people.

"I hope you've gotten a good sense of Carter's gentle spirit and giant generosity," his mother said.

"He was just a tremendous person. He was my hero," his father added. "He was just a great guy."

I have known people who were Jekyll / Hyde when they were drinking.
Albrecht's father expressed understanding (bold above) for the other
victim in this tragedy. And the more I have heard on this, if I were in
the homeowner's shoes, I would probably have fired too.

 

[JohnBT]

I still think shooting through the door was the wrong thing to do. Suppose the screaming-door-kicker on the other side had been carrying a little kid or holding holding an adult in front of him? He was acting strangely after all.

What happened to identify your target?

John

 

[Cosmoline]

Reality happened. In real life you may not have the luxury of getting a 100% positive ID on your target. Maybe he's hiding a baby behind the door. Maybe he has two nobel prize winners behind him and is juggling six infants. You have to go with the situation you're faced with. It's impossible to judge this one from a simple newspaper account, but assuming the shooter was faced with an unknown, enraged man kicking in his door at night and ignoring clear verbal warnings, I'm not sure what more you can ask for. When the door comes down, presumably the invader will start to fire. You are under no obligation to give him a fair fight, and any innocent blood spilled because of his actions goes on HIS head as part of the felony murder concept.

 

[Browning]

JohnBT : I still think shooting through the door was the wrong thing to do. Suppose the screaming-door-kicker on the other side had been carrying a little kid or holding holding an adult in front of him? He was acting strangely after all.

Well I think that you're right about it being best to identifying your target before opening fire, but then again we weren't there with an enraged maniac banging and screaming away and trying to kick down the door in the middle of the night after being awoken from a sound sleep.

I can say right now logically that I would have identified my target if I was in that same situation, but I might give you a different answer at 4AM if I was woken up out of a sound sleep and within seconds I had to arm myself to prevent someone from coming in my house and possibly killing me or my family.

That's enough to rattle people. Most IDPA scenarios don't start with the shooter actually sleeping.

From the reports though it sounds as though the home owner looked out to see who it was at least one time before having his wife call the police. The wife of the home owner described the guy pounding at the door as "he", how would they know that it was a male unless the looked out at some point?

It could have been from his voice I guess which was probably sounded male, but I got the impression that one of them looked out the window at some point and saw the large guy trying to get inside and that they didn't know him.

According to police, Mr. Albrecht and his girlfriend had been partying at a Greenville Avenue bar. He had gotten drunk, and she had driven them to her home in the 9000 block of Santa Clara Drive, just east of White Rock Lake, police said.

The girlfriend told police that Mr. Albrecht slammed a drinking glass on a table, cutting his hand. He then struck the girlfriend in the face several times with his fist, knocking her to the floor at about 4 a.m. Monday, the report said. He hit her in the back while she was on the floor, the report said. She broke away from Mr. Albrecht and ran outside. He followed her, according to the report. She then went around to the back yard and through the back door, locking Mr. Albrecht out, the report said.

Mr. Albrecht "attempted a few times to gain access to the … residence by knocking and banging on the door," but could not get in, the report said. Police believe Mr. Albrecht then went to the back of nearby neighbor's home.

The neighbor told police "he was awakened when he heard his wife screaming that someone was breaking into the house." The man was kicking and banging at the door, and the homeowner yelled at him to stop.

When the man, identified as Mr. Albrecht, didn't stop, the homeowner who was armed with a handgun "shot one time at the top of the door," the report said.

"He was trying to shoot over his head to scare him away," but Mr. Albrecht "is rather tall," said Sgt. Larry Lewis, a homicide supervisor, estimating the musician's height to be 6-foot-5.

Mr. Albrecht was shot once time in the head and died at the scene.

The just released 911 call from that morning reveal details from the point of view of the shooter, homeowner William Logg, and his wife.

On the 911 tapes, you can hear the frightened and confused moments just before the shooting and just after. The first voice is Logg's wife.

Caller (female): There is someone in my yard and he's beating on my back door.

Operator: Okay, ma'am.

Logg's wife continues talking with the operator, and then her husband gets on the phone.

Caller (male): I just fired a shot at the top of the door to scare him off. I think I shot him. He's laying in the… laying in the doorway.

What happened to identify your target?

It's kind of a half assed identification, but I get the feeling that they did look out.

That's all it is though, a guess based upon wording in the articles.

Even if my hunch is true you have a point as the situation could possibly have changed AFTER they looked out and saw that it was a drunken and enraged man and someone else could have been at the door trying to talk the guy down and been injured by gunfire, but luckily it didn't end up happening that way.

This case is just interesting to me because it happened locally and it's right after that new law was put into place, so I'm just kind of curious to see what happens with this case if his friends keep harping on what a great guy the musician was.

 

[joab]

I don't know why it should make any difference that it was the back door, but for some odd reason it does for me

 

[MechAg94]

The backdoor makes a difference to me in that he obviously wasn't dropping by for a visit.

There was a case a few years ago in Houston where a guy came home drunk and drove/walked to the wrong house and started beating on the front door to get in. The homeowner shot him through the door and killed him. No charges were filed as I remember.

 

[Double Naught Spy]

"They didn't invite someone, at that time in the morning, to be kicking at their door. Whatever action he took, that was a decision he had to make at that time," Ken Albrecht said. "He had a house to protect, a wife to protect, and my heart just goes out to them."

Carl, this is a great quote from the Ken Albrecht. Thank you. It is good to know that when he may be saddened by the events that he also understands what led up to the conclusion and he does not find fault.

It's kind of a half assed identification, but I get the feeling that they did look out.

Browning, if you listen to the audio from the link I have posted above, you will hear the woman say she saw the man and described the man as white, short hair, wearing a t-shirt. She most definitely put eyes on him. The husband also said he saw him through the window. Both said they yelled at him. I would not call it a half assessed identification. They both saw the man and identified him as trying to get in. What more do you want.

As for your comment that the homeowner had reason to be concerned and your article talking about recent increased crime, it really did not matter if crime was increasing or not. Their reason to be concerned was because some maniac was trying to kick in their back door at 4:00 AM in the morning and was unresponsive to verbal warnings and commands.

Thank you Bartholomew for looking into previous cases. Of course there used to be differences in criminal and civil issues, but then again, people could sue for just about anything. Fortunately, castle doctrine now applies, as you noted.

There was a case a few years ago in Houston where a guy came home drunk and drove/walked to the wrong house and started beating on the front door to get in. The homeowner shot him through the door and killed him. No charges were filed as I remember.

Yep, Texas criminal law says nothing about having to identify your target, shooting through doors, what side the bullet must enter the bad guy, or following the rules of gun handling. There is nothing inherent illegal about not identifying your target, shooting through doors, shooting a person in the back, or not following the gun handling rules.