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March 8, 2018

You be the sentencing juror: what punishment for deadly drunk driving by Texas State college student?

UntitledThe question in the title of this post is prompted by this local article in Texas, headlined "‘I’m guilty’: Former Texas State student testifies in deadly DWI crash," which highlights that in the Lone Star State jurors are sometimes called to serve as primary sentencers in non-capital cases.   Here are some case particulars via the local press piece:

When Shana Elliott took the stand Thursday morning, she admitted: “I’m guilty.” Elliott, 22, says she was intoxicated and should not have been driving the evening of Aug. 2, 2016, after a day of tubing on the San Marcos River. “We decided to go float the river, we weren’t thinking ahead, we didn’t plan who was going to be driving,” Elliott said on the stand. “The float ended around 5 and that’s when nobody else was going to drive and I decided that I would.”

On that day, Elliott, who was 21 years old at the time, allegedly drove drunk and ran head-on into a car on State Highway 21 killing 23-year-old Fabian Guerrero Moreno and injuring his pregnant wife, Kristian Nicole Guerrero. Guerrero was five months pregnant. The unborn child did not survive.

Elliott says before the crash she dropped her friends off at their homes then decided to drive home herself. “It’s really blurry, I just remember as soon as the accident happened, I know that I made the worst decision ever.”

She says she got out of her car at the scene of the crash and ran to the other vehicle. “I just remember fighting, I wanted to go to make sure they were okay,” she said. “I’m sorry. I accept responsibility and I know what I did was wrong.”

At Elliott’s home, investigators found meth, heroin and a large bag of marijuana.  On the stand Elliott admitted to being addicted to heroin at one time, she said she smoked marijuana, but never did meth. She says after a previous arrest for drugs she had plans to sober up.

While Elliott was on the stand, prosecutors presented a large bottle of alcohol that was found at the crash site.  Elliott told the jury it was hers, adding it was full before she and her friends began floating the river.

Prosecutors also played recordings of phone calls Elliott made from jail. In one of the recordings, Elliott is talking with her boyfriend, speculating the other victims of the crash were part of the cartel. In another recording, Elliott can be heard joking and laughing with her friends about getting her eyebrows threaded in jail just four days after the crash.

Elliott’s grandmother Eleanor Brumley also took the stand Thursday morning. “She was determined to make something of herself,” said Brumley. “I’ve always been proud of her.” Brumley describes Elliot’s childhood as difficult. She says her father died of a heart attack and her stepdad was an alcoholic and was abusive mentally and emotionally. “Shana would deal with that and walk out the door with a smile on her face. She didn’t complain. She’s always thinking of everybody else,” said Brumley.

Elliott says she tried to deal with the abuse herself, but when she arrived at college she sought psychiatric help through a doctor at Texas State University.  She claims the doctor diagnosed her with depression, anxiety and slight PTSD stemming from her difficult childhood.

At the time of the crash, Elliott was a senior at Texas State University. Records show her blood alcohol content was .199 at the hospital.  On Monday, Elliott entered a plea of guilty for two counts of intoxication manslaughter and intoxication assault. The jury is expected to decide her punishment this week.

UPDATE: This local article reports on the jury's sentencing decision:

Shana Elliott, a former Texas State University student, was sentenced to seven years in prison Friday afternoon on each count in the deaths of a man and his unborn child.... Elliott, who pleaded guilty Monday, received seven years in prison each for two counts of intoxication manslaughter with a vehicle in the deaths of Fabian Guerrero-Moreno and his unborn child, who were killed in a drunk driving crash in August 2016.

March 8, 2018 at 06:20 PM | Permalink


I would like to read the probation report. What has she been doing since the crash? If she has improved, and done well, she can continue to do so. If her last drink was an hour before the court, she needs time out of circulation. The facts are necessary for sentencing in an utilitarian scheme. In a retribution scheme, they do not matter, only the damage she has done matters, and everyone loses.

If allowed to work, she can be sued, and compensate the estate for its loss. That is a win win outcome for everyone.

Posted by: David Behar | Mar 8, 2018 6:38:04 PM

What is the sentencing range? Does Texas have potentially pertinent enhancements and downward departures?

Posted by: K | Mar 8, 2018 7:48:56 PM

It's indeterminate sentencing. Second degree felony, 2-20. Tex. Penal Code 49.08 and Chapter 12.

Posted by: Fat Bastard | Mar 8, 2018 8:20:30 PM

That's some open-ended range.

I would need to know how much comparable people received. The facts are pretty ugly though joking with friends really doesn't tell me much. Running to the other car helps a little. I don't know. Maybe, 5-10 years, depending on the terms for early release.

Posted by: Joe | Mar 8, 2018 8:41:12 PM

She should recieve the same punishment given to drunk drivers who don’t kill people because all drunk driving is equally blameworthy. I don’t know what that punishment is these days, but I think driving while seriously intoxicated should be punished with about 6 months in jail, so I’ll say 6 months in jail. Punishing her more harshly than those who engaged in identical conduct and hazarded identical risks of harm simply because the dice came up death in her case serves none of the purposes of punishment.

Posted by: Josh Lee | Mar 8, 2018 9:27:44 PM

Interesting idea but another comment puts the actual range as starting at two years & judges/jury go by the laws on the books and the "going rate," not the laws we think most just.

One "purpose of punishment" in our current system is retribution & that includes dealing what actually happens. Society and individual victims work off the death, even if it is partially a matter of luck. Anyway, the specific facts regarding the drunken driving (including the extended driving she did, not merely driving straight home from a party) can be aggravating factors.

The drugs are too. That much drugs is probably worth more than six months alone -- heroin and meth particularly. A "large bag" of marijuana might be enough for sale. Of course, it we are going to have certain views on justice, we can determine drugs should be legalized too, I guess.

Posted by: Joe | Mar 8, 2018 11:18:45 PM

Under Texas law, intoxication manslaughter and intoxication assault sentences may be stacked by the trial court, notwithstanding that they arose out of the same course of conduct. I see her getting two twenty-year sentences for the intox manslaughter cases and a ten year sentence for the intox assault. Some or all may be stacked; I'm not familiar with the judge, however.

Posted by: Mark M. | Mar 9, 2018 1:41:48 AM

Only an asshole would joke about causing the death of a family caused by their decision! Pathetic uncompationate selfish prick!

Posted by: Mai | Mar 9, 2018 8:54:03 AM

I am curious about the feeling of the people here, if the same outcome had resulted from driving sleepy, or while texting. Each has been shown to be as impairing as legal intoxication.

Posted by: David Behar | Mar 9, 2018 9:14:55 AM

I know Prof. Berman's feelings about the under punishment of drunk driving. Should the term be changed to impaired driving, and all punishments cover other causes of equally severe impairment as drunk driving? While I decry the murder rate, the number of deaths in crashes is double and the way people die is by butchery. Suicides are also double the murder number. Half of those people are legally drunk.

Posted by: David Behar | Mar 9, 2018 9:28:29 AM

This defendant knowingly got into a one-ton vehicle and drove drunk. Lets posit that she truly hoped should would not hit anyone or anything.
Is this any different from the person who takes a rock to the top of the empire state building and who, while fervently praying it will not hurt anyone, drops the rock and kills 2 people? People must bear the consequences of their reckless acts. Here, any sentence less than 10 years would be a travesty.

Posted by: anon1 | Mar 9, 2018 12:14:38 PM

These are good thought experiments.

If possible, it would be helpful if we get an update in each case on what the actual sentence was.

Posted by: Joe | Mar 9, 2018 12:18:36 PM

I struggle with this one -- each mitigating factor seems to have an aggravating factor right on it's heel. She accepts responsibility in the court room, but phone conversations undermine the idea of remorse and responsibility. She had knowledge of addictive behavior, especially with hard drugs, but seems like she still socially binge drinks and didn't seek formalized treatment. The victims make it hard to accept any mitigating factors -- a wife lost her husband and her unborn child because of the drivers actions.

Ultimately, her age and background are strong mitigating factors that suggest to me that she could be rehabilitated and live a law abiding life in spite of the other factors. I would hope she won't get more than 5-10 years and will hopefully receive the treatment she obviously needs.

Posted by: Shelby Slaven | Mar 9, 2018 12:25:08 PM

In my state, which also uses jury sentencing for "first time" offenders, there is a second evidentiary phase after the jury finds the defendant guilty. At that phase, the parties can put on aggravating and mitigating evidence -- like municipal offenses, whether the defendant has completed an alcohol treatment program since the offense, etc. What the jury does not get are: 1) any probation report (normally not completed until after the trial); 2) any information about what judges and other juries have done (we want this jury's sense of what is appropriate, not them merely following what has been done by other people); 3) any information about possible probation or parole (such later choices are discretionary and any information is likely to be confusing and probably inaccurate).

Given the .199 and evidence of other drugs and the phone calls, looking at what would be a 5-15 year range in my state for the two deaths and one injury (we have folded vehicular assault and manslaughter back into the DWI statute as sentence enhancements), I would probably recommend 9 years.

Posted by: tmm | Mar 9, 2018 12:53:44 PM

There is a separate sentencing hearing where evidence is heard in Texas. Somewhere I have seen that 10 years, partially probated, is kind of the going rate for intoxication manslaughter.

I'm not a huge fan of adding a separate crime for intoxication manslaughter. In the final analysis, it is an accident. An accident made entirely more probable by the actions of the defendant, but not much more craven than many other driving impairments. It's evocative of the great judgment still levied against the use of intoxicants.

And the lobbying of MADD and the spinelessness of legislators, who will do any damn thing for a vote.

Posted by: Fat Bastard | Mar 9, 2018 1:42:52 PM

As a practitioner in criminal law and an adjunct professor at a local college, I believe this to be an excellent real life example for my sentencing law class and would very much like to see how this sentencing plays out. Thanks.

Posted by: ABC | Mar 9, 2018 2:05:12 PM

"not much more craven than many other driving impairments"

Like what?

The "entirely more probable" part is why an enhancer to me makes sense. It is not "spineless" for legislators to determine that something that significantly makes it more dangerous, including killing people, to drive should be factored in here. And, the specific thing is a recreational activity that people are on fair notice regarding & the activity is not some necessity. She wasn't even driving from the river, an isolated location perhaps where alternative transportation etc. is harder.

Talking about "any damn thing" in this context cheapens abuse of legislative action. This isn't merely a drug prohibition rule.

Posted by: Joe | Mar 9, 2018 2:33:10 PM

As a father of a 22 year old, I cry for her. As a criminal defense attorney, I advocate for her and plead for leniency. As a relative of the person killed, I'm angry at her and want her punished to the maximum extent of the law. As a judge, I must concur with anon1's opinion above: "you were intoxicated and still drove a one ton vehicle on the street; you acted recklessly and are responsible for the forseeable consequences of that reckless act...with heavy heart, I sentence you to 10 years(but you'll get good time, and probably be released early). "

Posted by: Michael R. Levine | Mar 9, 2018 6:25:16 PM

10-15 years sounds about right.

Posted by: federalist | Mar 9, 2018 7:18:29 PM

The jury gave her 10 probated for one of the intox manslaughters, and two 7-year incarceration sentences for the other intox manslaughter and the intox assault cases. because the vehicle was a deadly weapon, she won't be parole eligible until she's served half the sentence. my limited research didn't reveal a news story which addressed whether the trial court stacked any of the sentences--which is really the greater determinant to the actual time she will be caged. Knowing Texas juries, I think she did as well as could be expected with this fact pattern. In fact, the jury seemingly took great pains to see that she would be supervised upon her eventual release--assuming the judge doesn't stack the seven-year sentences.

Posted by: Mark M. | Mar 10, 2018 2:28:04 AM

Michael. Is the US a signatory to the International Covenant on Civil and Political Rights? Is it not monitored by the United Nations Human Rights Committee? Does its Article 14.7 prohibit double jeopardy, defined as conviction on a charge on which one has been acquitted (the usual meaning of double jeopardy), but also a charge on which one has been convicted?

Does stacking violate that ratified international Covenant?

Someone is convicted of manslaughter for an actus reus. Can they be convicted of assault for the same actus reus without violating that Covenant?

There is also an outcome bias. This is a fallacy that is very hard to resist. For example, biased defense experts thought there should be tort liability for the same doctor acts, but with bad outcomes in theoretical scenarios presented to the. However, it is nevertheless a fallacy. Fallacies violate procedural due process rights in the Fifth Amendment. If in her same condition, she had hit a mailbox, and not people, would she have been charged criminally for anything by DUI?

Has anyone raised the outcome bias objection Why not?

Has anyone ever made the argument of outcome bias as a violation of the constitution? Why not?

Posted by: David Behar | Mar 11, 2018 7:46:52 AM

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