DALLAS - A Dallas appeals court heard arguments Tuesday from Amber Guyger's defense team as they challenged her murder conviction.
The hearing happened before a three-judge panel of the Fifth Court of Appeals. The panel is reviewing whether the evidence against Guyger was sufficient to prove shooting and killing Botham Jean was murder -- or something less.
Guyger attorney Mike Mowla said his client should be acquitted of murdering Jean because of what's called "mistake of fact," that Guyger's actions were reasonable under what she thought she knew at the time.
The court had questions about that claim.
"That’s because murder was the result of the offense and you’re kind of overlooking that," said Chief Justice Robert Burns, III.
"I don’t think I’m overlooking it, your honor. It is a result-oriented offense," Mowla replied. "And the result in Miss Guyger’s case was that she killed someone. The question is was there a defense available?"
Guyger maintained she thought Jean was an intruder in her apartment when she went to the wrong unit one floor up from hers and shot him.
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"Just because of her alleged mistake of belief about where she was doesn’t negate her intent to kill," said Justice Robbie Partida – Kipness.
"My argument is it negates the men's rea, it negates the evil intent. Because we wouldn’t be here talking about this if she had walked into her own apartment," said Mowla said.
Another justice asked about another charge.
"Concerning the lesser included criminal negligent homicide, why do you think you are entitled to that?" said Justice Lana Myers.
"She missed basically four clues about where she was," Mowla answered.
Those clues: the red doormat, the backlit room number, the flashing red light on the lock and the marijuana smell from the apartment.
"That constitutes a failure to perceive the risk of her actions. That’s why I think criminal negligent homicide is a viable option for the court as a lesser included offense. She should have been paying more attention," Mowla said.
"This is a murder case, not a criminal trespass case. When Amber Guyger shot Botham Jean she didn’t take someone else's property, she took the life of a human being," said Doug Gladden, prosecutor.
Gladden contended the evidence, in this case, did not raise mistake of fact. He said no reasonable person could have mistaken Jean’s apartment for Guyger’s.
"She shot center mass, she shot with a firearm -- which is a deadly weapon, she shot at a downward angle and she didn’t render first aid. She caused his death," Gladden said.
"I would ask that this court affirm the judgment of conviction."
The panel had a lot of questions for Mowla, but very little for Gladden.
"She just needs to stay in jail for the time she has been given," said Allison Jean, Botham’s mother. "I can’t understand how people could downplay a mistake when it has cost the life of another person."
Toby Shook was one of Guyger's defense attorneys during her 2019 trial. Shook is not involved in Guyger’s appeal process but calls Mowla’s tactic familiar.
"There is not a lot of case law on this. So he is trying to come up with a new theory as to why," Shook said. "I think what he was trying to say was mistake of fact should have applied. There was a lot of argument over that in the trial if it should have been in the court’s charge."
Meanwhile, Allison Jean says her family has been trying to take the next step in the healing process but can't.
"Every single day that goes by just continues to puncture the wound," she said.
The court allowed audio but no video for reporting on the 45-minute hearing.
The panel is taking what they heard under advisement and will issue an opinion at an undetermined later date.