Prickett: Is It Felony Murder When the Police Do It?

[Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.]

Felony murder[1] is an old concept that if someone dies while a suspect is committing a felony (other than some form of homicide), then the suspect can be charged and convicted with murder. It is routinely used in criminal prosecutions across the nation. On January 28, 2019, Houston Police officers, acting on a no-knock search warrant that had been fraudulently obtained, entered a house and a gunfight ensued.

During that gunfight, the two occupants of the home, Rhogena Nicholas, 58, and Dennis Tuttle, 59, were killed, and four Houston Police officers were wounded by gunfire. The wounded include the officer who falsified the search warrant affidavit, Gerald Goines. Goines is now under investigation for these crimes, a number of which are felonies. Goines has also been in several shootings, being shot in 1992 and 1997.

The initial story was that HPD had received a number of complaints about the Tuttle house being involved in drugs. Goines started an investigation, and on his search warrant affidavit claimed that a confidential informant (“CI”) entered the home, bought black tar heroin and observed a 9mm handgun. That wasn’t true. The HPD investigators following up on the shooting contacted the CIs[2] and were told that: 1) neither CI made a buy at that house, and 2) sometimes Goines would pay them for CI work that never took place. Moreover, no heroin and no 9mm handgun were found in the home.

The problem seems to center around Goines, who has had his share of problems. First, in the 1992 shooting, Goines was shot while urinating in public near an apartment complex. The person who shot Goines was never charged with a crime in regard to the incident. Five years later, Goines shot and killed Reginald Dorsey in what was initially reported to be an undercover drug buy, but was determined to be a case of road rage. Goines, who was also shot, was apparently upset because Dorsey did not yield when Goines was entering the highway. Goines remained on the police force, even though it appeared that he had given false information on the shooting.

In addition, Goines was a defendant in at least two state court lawsuits[3] and three federal cases.[4] There are striking similarities in the last two federal cases. In Brown, a search warrant was obtained based on the representation by Goines that a CI had seen marijuana and a semi-automatic handgun at the residence. Brown was a convicted felon. During the search, no marijuana and no handgun were found, but an AK-47 rifle was allegedly found. Although numerous photos were taken of the search and what was seen, there were no photographs of the rifle. Additionally, Goines handled the rifle to “clear it” and no fingerprints could be processed.[5] The federal court denied Brown’s habeas petition.

In Bernard, a CI informed HPD officers (including Goines) that he had observed Bernard selling marijuana, and that a semi-automatic handgun was present. During entry, an officer shot Bernard with an AR-15, and a subsequent search turned up 122 grams of PCP, one gram of marijuana, a shotgun, and a semi-automatic handgun.[6] Bernard was charged, but the charges were later dropped. In the lawsuit, Bernard alleged that there was no CI, and that the drugs were not found during the initial search. The plaintiffs explicitly alleged that the information provided by Goines was “false.”

In yet another case, Goines has been accused of planting evidence. In 2011, Goines said that he made a buy of cocaine from Otis Mallet, giving $200 in marked bills to Steven Mallet, who then went to Otis and retrieved drugs from a can in a vehicle. A can containing cocaine was found where Goines testified Otis had tried to hide it behind the house. Only two uninvolved witnesses have stated that Otis never did that, that he did not move from the vehicle where he was initially. The $200 was missing, but a month later, Goines reported that he had paid it to a CI, an informant that Goines never mentioned in the offense reports or trial. It’s not known if the CI even exists.

Only now is this coming out, even though it should have been painfully obvious to his supervisors and command staff. An average officer doesn’t have a single lawsuit against him, much less five. At this point, Houston PD Chief Art Acevedo is saying that Goines can face criminal charges, up to murder.

He should, but it’s not up to him. It is up to the Harris County District Attorney, Kim Ogg. If it is shown that he lied on the search warrant affidavit in order to conduct an extremely dangerous no-knock search warrant in the middle of the night, then the case should be presented to a grand jury and he should be indicted for two counts of felony murder.

I’m not going to hold my breath.

[1] In Texas, the felony murder rule is at Texas Penal Code § 19.02(b)(3).

[2] Goines initially gave investigators the name of a CI, who denied involvement. When investigators confronted Goines on that, he gave the name of a second CI, who also denied involvement.

[3] Miller v. Pace Concerts, et al, Cause 199017761-7, 61st Dist. Ct.; and Garcia v. Owens, et al, Cause 199418191-7, 333d Dist. Ct.

[4] Dorsey, et al v. Goines, et al, Cause 4:1999CVo2086, SD Tex. and Causes 0:2000PCF20742 and 0:2000PCF21065, 5th Cir.; Brown v. Stephens, Cause 4:2013CV02923, SD Tex.; and Bernard v. City of Houston, et al, Cause 4:2015CV00734, SD Tex.

[5] Appellant’s Brief, Brown v. State, Cause 14-12-01035-CR, Tex. App.—Houston [14th Dist.]. The appellate court affirmed the conviction, and the Texas Court of Criminal Appeals refused review.

[6] Memorandum and Recommendation, Doc. 36, Cause 4:2015CV00734, SD Tex.

18 thoughts on “Prickett: Is It Felony Murder When the Police Do It?

  1. Lee

    As a long time Houstonian (now living in Sugar Land, thank God), I am actually somewhat encouraged by the HPD’s handling of this incident. I can remember when the Thin Blue Line would have closed ranks with Goines and we would possibly never have heard about any of this.

    It’s been a long time coming, but in Texas at least, dirty police officers are no longer immune from punishment for the crimes they commit while hiding behind the badge.

    1. Howl

      When you’re covered with crap, stinking up the place, sooner or later people stop buying the story that you accidentally stepped in some dog poop.

  2. kemn

    I’m just hopeful he doesn’t end up not charged, but “dismissed from the force” and ends up serving in another city/town and keeps up his behaviour.

    Unfortunately, I keep hearing about officers violating use of force rules, and ending up still on the job in one location or another.

    At least we hear about them…

  3. Ahaz01

    I agree with Mr. Prickett, don’t hold your breath waiting for the charge. DA’s and Judges are notorious for protecting the boys in blue, even in the most egregious cases.

      1. horatio

        Shhhh. Don’t dare them to bring in the Texas Rangers where their investigation will undoubtedly find no-fault for Goines.

  4. RedditLaw

    What is amazing about these incidents is that the drug dealers all left their semi-automatic firearms displayed prominently while they were engaged in their drug transactions with confidential informants. This prominent display of firearms strikes me as dangerous to the drug dealer. After all, a desperate drug purchaser could seize the firearm and rob the drug dealer. While it would make sense for the drug dealer to be armed, the dealer would want to keep the location of his firearm concealed from the buyer, albeit on his person. What a coincidence that all of the drug dealers made the same stupid mistake that established probable cause for a no-knock raid!

    At least none of the drug dealers dropped their drugs and firearms on the sidewalk.

    Addressing the question at hand, do commenters here think that the Harris County District Attorney intends to (1) use prosecutorial discretion to charge Officer Goines with a lesser crime, such as involuntary manslaughter, or (2) take the charge out into the Grand Jury woods and lose it?

    1. Gregory Prickett

      Since involuntary manslaughter is not a criminal offense in Texas, no, I don’t think that it will be charged. In Texas you have the following homicide-related crimes:

      Capital murder – death penalty or life without parole
      Murder – 5-99 or life
      Manslaughter – 2-20
      Criminally negligent homicide – 180 days to 2 years

      Second, I think Ogg has more integrity than that.

  5. Tom

    If the underlying felony is the aggravated perjury on the search warrant affidavit, there is no felony murder. In Texas, perjury is not a continuing offense. When it’s over, it’s over. Felony murder has to be in the commission of the crime or in the immediate flight therefrom.
    If the underlying felony is burglary of a habitation, you’ve got capital murder if the officers intended to kill the victims. And, since it’s a double killing, that’s a capital murder under Texas law too.
    Goines has been a pain in the ass narc for as long as I’ve been practicing law. He thinks he’s a combination of James Bond and Rambo. It’s time to rein in the narcs.

    1. Scott Jacobs

      He said felony murder, not Capital Murder. There’s a difference. Ogg can almost certainly get an indictment under § 19.02(b)(3), but I agree she would be unlikely to get to § 19.03 for Goines.

    2. Lee

      Well, at least Chief Acevedo has now announced the end of “no knock” raids by HPD. That is some progress, even if it doesn’t help the deceased.

  6. Tom

    One other thought that no one has talked about in connection with this raid.
    In Houston for as long as I can remember, the local authorities have been going after the low hanging fruit, the small-time dealer or user or even someone with a crack pipe containing cocaine residue. That runs up the numbers.
    Meanwhile, the DEA isn’t interested in anything unless it’s multiple kilos and usually tens or hundreds of kilos.
    No one is going after the guy who buys a kilo or half kilo of cocaine and cracks it up. In 30 plus years of practice including more drug cases than I want to think about, I’ve only handled only one case involving someone who bought by the kilo or half kilo and cooked the cocaine into crack.

  7. B. McLeod

    It will be interesting to see what ultimately comes out as to the motivation for targeting this couple (e.g., whether Goines had something personal against them, or took money from someone to do this).

  8. JohnM

    Greg,

    What’s the “profit motive” for the officer involved here – why make up fake CI’s and go through all this effort when I’m sure they are actual real bad guys to go after that he do legit?

    I know it may not be a fair question, you not being in his shoes, but when a bad apple does turn up in these circumstances, what is he generally after? Promotion? Popularity?

    1. Ross

      What’s in it for the officer? The adrenaline rush he gets when he busts down a door. Perhaps there’s an opportunity to steal some drugs for later sale. Of course, I’m a cynical bastard.

    2. rojas

      A commonly exposed entrepreneurial skill set found in some officers that go above and beyond the call of duty is the ability to rack up overtime pay. For themselves, their buddies, their co-conspirators, ect… whether they actually worked the shift or not.

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