Murder is a clear intent to harm or end a life that was planed ahead of time, a scheme or plan to do bodily harm meant to end a life...I don't think what Gyger did fits that definition. No, it was manslaughter: The killing of a human being without malice of forethought , accidentally as an unforeseen consequence.
You got it.
Again, that is totally and completely wrong.
Anyone who is sufficiently reckless can and often is charged with murder.
Not recognizing the apt, pulling a gun, firing twice, etc. are all so reckless as to constitute murder, just like with a drunk driver.
Drlunk drivers are sometimes charged with 2nd degree murder...but usually just negligent homicide.
Vehicular homicide - Wikipedia
2nd degree murder does not exist in Texas. Amber was charged with murder.
She was thus falsely charged....in order for murder to exist there must be malice.
Legal Dictionary - Law.com
From your own legal dictionary link, which you obviously did not even read.
{... or it was as an incident to another crime (as during a hold-up or rape), to be first degree murder, with or without premeditation and with malice presumed. ...}
So since the shooting was during the criminal act of tesspassing, it gets elevated to murder instead of manslaughter.
Since she was carrying a gun while committing the crime, it also gets elevated.
Since it is incredibly reckless to not recognize the apartment differences, it also gets elevated.
Your link explains why a reckless act does not require intent or malice.
{... Second degree murder is such a killing without premeditation, as in the heat of passion or in a sudden quarrel or fight. Malice in second degree murder may be implied from a death due to the reckless lack of concern for the life of others (such as firing a gun into a crowd or bashing someone with any deadly weapon). ...}
There is a second degree murder charge in Texas, but they do not differentiate it by name.
{...
The crime of second degree murder, simply called "murder" in Texas, is a serious crime with harsh penalties. Second degree murder is a crime involving a death that resulted from the accused's wrongful acts. These include deaths that occur during the commission of a crime, or on account of the accused's recklessness. The following chart includes information about the Texas crime of second degree murder, including potential defenses and penalties.
Statute Texas Murder Statute (Penal Code, Title 5, Chapter 19)
Elements of Second Degree Murder
Texas does not officially use the term "
second degree murder" which can sometimes be a little bit confusing. Instead, the equivalent in Texas is known as just "murder," which is a first degree felony. To convict a defendant of murder, prosecutors must be able to prove beyond a reasonable doubt that:
- The defendant intentionally and knowingly caused the death of another person;
- The defendant intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual; or
- The defendant committed or attempted to commit a felony (other than manslaughter) and in performing that felony, committed an act that was clearly dangerous to human life and this act caused the death of an individual.
Defenses Against Second Degree Murder Charges
- Lack of intent
- Lack of knowledge
- Insanity
- Intoxication
- Self-defense
- "Heat of passion" defense (i.e. The defendant was provoked to commit the crime by fear, rage, terror or some other extreme emotion.)
NOTE: If none of the criteria are met, the defendant may still be found guilty of a lesser homicide charge.
See
Second Degree Murder Defenses for more information.
Penalties and Sentences
Murder in Texas is a first degree felony. This charge will typically carry a sentence of between five and 99 years in a state prison and/or a fine of no more than $10,000. At the sentencing stage of the defendant's trial, the defendant can raise the issue of having committed the crime in the "heat of passion" arising from an adequate cause. If the defendant is found to have been in the heat of passion at the time of the homicide, then the charge will be reduced to second degree felony. A second degree felony carries a sentence of between two and twenty years in a state prison and a fine of no more than $10,000.
...}
Texas Second Degree Murder Laws - FindLaw