State of Texas vs. Theodore L. Jurgensen

[The most recent update is at the end of this post.]

They say that good fences make good neighbors.  If only Theodore L. Jurgensen had a good fence on March 19, 2005, he wouldn't be in the trouble he's in.

He's on trial today in the 238th Judicial District Court in Midland, Texas, for aggravated assault against a peace officer, and this case has a very intriguing fact situation.

Yesterday, in the posted titled  Jury Duty, I described the jury selection process for State v. Jurgensen in which  I was a member of the original jury panel but was struck by one side or the other.  The trial started yesterday afternoon, and as soon as I got free today I scurried to the 238th court room to see what was going on in the Jurgensen trial.  Unfortunately, the complaining witness, Constable Charles "Choc" Harris, along with his mother and fiance had already testified.  But, I was able to see Mr. Jurgensen's testimony.

According to Mr. Jurgensen, Constable "Choc" Harris moved onto the rural property next door with two unruly dogs; a large grey one and a pit bull.   The large grey dog bit Mr. Jurgensen, and both dogs growled and barked at him when he got near the fence.  On the day in question he was disposing of some tumble weeds, and he had to get down on the ground to place a cement block against a gate to prop it open.  And the dogs barked, snarled and snapped at him, and even though they were on the other side of the chain link fence, he was afraid that they might climb over the fence as he had seen them do before.  So he applied some pepper spray to their yapping faces.

Not long after that, Mr. Harris came forward and said, "did you spray my dog?"  Mr. Jurgensen replied, "I sprayed TWO of your dogs."  Mr. Harris responded by jumping over the fence and grabbing Mr. Jurgensen with both hands by the shirt near the neck and said, "YOU'RE UNDER ARREST!"

Jurgensen is a thin, wiry guy of 67 years of age.  He looked to be around 5' 10'' in height, and he testified that he weighs 147 pounds.  I'm guessing that Mr. Harris' weight exceeds 250 pounds, so there was a definite weight class mismatch.

Mr. Jurgensen testified that as Mr. Harris was holding onto his shirt Mr. Jurgensen did a quick flip of his arms that broke Mr. Harris' hold.  Then Mr. Jurgensen performed what he described as a "left front snap kick" to Mr. Harris' crotch.  Mr. Jurgensen pulled his handgun, a Smith & Wesson .357 semi-automatic, and ordered Mr. Harris to his knees.  Mr. Harris pleaded with him to take his finger off of the trigger, and Mr. Jurgensen elevated the muzzle so that it didn't point directly at Mr. Harris.

Mr. Harris wanted to use Mr. Jurgensen's cell phone, and Mr. Jurgensen declined but said "who would you like me to call."  Then he told Mr. Harris "you're disgusting.  Go home."  And that ended the confrontation, at least for the moment.

Enter law enforcement.  Constable Harris called the sheriff's office who sent a deputy out to interview both parties.  The deputy talked to both of them then filed his report.  Back at the office, a decision was made to arrest Mr. Jurgensen.  (There doesn't appear to have been any discussion of charging Mr. Harris for trespassing.)  And on the following Monday, two sheriff's deputies and a five member swat team located Mr. Jurgensen in town, and they arrested him, swat style.

They found the handgun and a knife in the car.  By the way, Mr. Jurgensen has a concealed handgun license.

The handgun was chambered with Speer hollow point bullets, and the prosecutor spent several minutes questioning one of the arresting officers as well as Mr. Jurgensen on that subject.  A hollow point bullet expands when it strikes an object, and the result is a larger wound if it hits flesh plus a reduced likelihood that it would go completely through anything it hit, a wall, for example.  There wasn't any testimony of what kind of bullets were in the gun on the date of the incident at the fence.

After the Judge read the jury instructions, the closing summations by the prosecution, Steve Stallings, and the defense, David Rogers, were brief retellings of the facts of the case, so for me it was a good chance to get some of the blanks filled in.

But there was one thing that struck me, and that was the way the prosecutor, Steve Stallings, handled one of the prosecution exhibits, Mr. Jurgensen's Smith & Wesson .357 semi-automatic handgun.  The handgun had a cable lock on it, and it was probably inoperable.  But, one of the rules of handgun safety is to treat every gun as if it were loaded.  Call me a gun safety nut, but to see Mr. Stallings waving it around with abandon, inadvertently pointing it at the jury and just about everyone else, including me, I couldn't help but think that was awfully curious behavior.  I couldn't take my eyes off it, and it was terribly distracting -- I didn't even hear what he was saying.  If he wanted the jury to regard the handgun as the thing, the one thing, that turned this neighbors' squabble into a serious felony then I would think he would want to treat that gun as he would a live rattlesnake instead of waving it around as a harmless object.  But, that's just me, and I was kicked off the jury in the first place, so it doesn't matter.

Judge John Hyde kept the case moving at a pretty good pace, and while there were some delays, the jury was sent to deliberation in slightly over 24 hours after the trial began.  So as of the time of this writing the jury is either still deliberating or has retired for the day.  I hope to receive a phone call from the court when the jury returns with the verdict, so watch for an update.

UPDATE, Today, 6:30 pm CDT:  The jury had been given a choice of four charges, if they found him guilty.  The most severe, aggravated assault on a peace officer, carried a penalty of probation to 99 years in prison.  The weakest of the four charges was "deadly conduct."  The jury came back around 5:00 pm with a verdict of GUILTY of  "deadly conduct."  The penalty phase of the trial will begin at 9:00 am tomorrow.

UPDATE, 5/11/05, 1:15 pm CDT:  The punishment phase of the trial took place this morning, and the jury came back a little before noon with a verdict for a punishment for the class A misdemeanor of confinement in jail for one year with a fine of $4,000 but with the jail time suspended in favor of two years of community supervision (probation).  Judge Hyde accepted the jury's verdict and added 30 days jail time without credit for time already served.  The formal sentencing will take place Friday.

UPDATE, 5/13/05, 5:30 pm CDT:  Today around noon Judge Hyde conducted the formal sentencing hearing.  The sentence of one year of confinement was suspended, and Mr. Jurgensen was sentenced to two years of community supervision (probation) pursuant to Article 42.12 of the Code of Criminal Procedure plus 30 days in jail which began on May 11, 2005.  During the two year probationary period he may not possess or maintain firearms, he must attend anger management classes, and he cannot have alcohol or controlled substances.  He was ordered to perform the maximum number of hours of community service provided by the said Article 42.12.  And he can have no contact with Charles Harris or Mr. Harris' mother or fiance.  Finally, he was instructed that as a further condition he must obey the family court in which he and his wife are getting a divorce.

UPDATE, 5/13/05, 5:39 pm CDT:  Welcome readers from Jessica's Well where Shepherd makes the excellent point that we have so little choice about who our neighbors are.

Comments

[greg]

So, let's see: Two dogs, which had crossed the fence and bitten him before, were menacing the guy from across the fence, so he pepper-sprayed them. So far so good, I'd have done the same, and the dogs would probably not try it again. So the owner, a law officer, jumps the fence, and physically assaults the man on his own property. Trespassing, assault, battery. Right. The guy pulls a gun to defend himself, and the officer/assailant backs off. Sounds like the kind of case the NRA would print in their magazine as an example of right-to-carry laws working the way they are supposed to.

And the trial of the constable for the trespass and assault starts when?

[Redman]

Excellent point by Greg.

Those who work in the criminal justice system 'take care of their own.' I wouldnt be surprised if the criminal charges were brought in an effort to forestall or prevent the filing by Jurgensen of a civil suit for damages against Constable Harris.

[George]

There were no one heroes to come out of this thing. It was a volatile situation, and both men overreacted.

[greg]

George,
Agreed, both overreacted. Mr Jurgenson overreacted at the point that he aimed a gun at the constable with his finger on the trigger. Had he simply taken a few steps back after administering the front-snap kick, and put his hand on the grip of the gun, without unholstering it, he would have still been capable of defending himself. Defending one's self when attacked is not overreacting, but one should never aim a weapon at someone, with finger on the trigger, unless one intends to shoot.

[George]

Excellent point, Greg.

[Steve]

I have dealt with Mr. Harris in the past and he is without a doubt one of the most arrogant people I've seen. I'm sure he thought his macho cop crap would scare Mr. Jurgeson. I would have probably done what George suggested, but who knows, Mr. Harris might have shot him and of course we know in Midland that would have been ruled justifiable homicide.

[kathy]

If a man crosses over into a nother mans property isnt that tresspassing? I would have peppered mr.harris, rather than what had happened. None the less I have a grandaughter of his that needs to know who her family is. born sept. 4th, 2001

[New Jersey Divorce Attorney]

This case is very interesting. As I was reading I though Mr. Jurgensen should be innocent, but he did pull a gun with hollow point bullets on Mr. Harris. Either way the point is that often times the most important thing is getting a good lawyer. This especially applies to divorce situation that can sometimes get messy.

[Robert]

Should have just shot him. Someone comes on my property and assaults me is not going to get a second chance. When the cops find his carcass face down in my yard there will be no doubt who was in the wrong.

[Geo]

That's one way to respond, Robert. But it would go to the grand jury, and they would decide whether the shooting was justified.