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September 17, 2011

"Fort Worth man gets life sentence in shoplifting case that ended in death"

The presidential candidacy of Texas Governor Rick Perry has brought extra attention to his state's record with capital punishment.  But this local Texas article reporting on the imposition of a life(!) sentence on a Walmart shoplifter has me hoping the media might find some time to ask Governor Perry some questions about some other aspects of Texas justice.  (Hat tip: Scott Henson from Grits for Breakfast.)

The title of this post comes from the the headline this Fort Worth Star-Telegram article, and here are the remarkable offense and sentencing details:

A 38-year-old man has been sentenced to life in prison in a shoplifting case that ended in the death of a Walmart employee.  Although William Alan Kennedy was never charged with causing the death of Bruce Florence, a Tarrant County jury found the Fort Worth man guilty of aggravated robbery for knocking Florence, 56, down while trying to run out of the Westworth Village Walmart with a stolen TV worth $348 on June 11, 2010.

Florence, who hit his head on the floor, was hospitalized and died June 20. The Tarrant County medical examiner's office, however, ruled that end-stage liver cirrhosis -- not the head injury -- caused Florence's death.

"After conscientious deliberations, the jury agreed that Kennedy's actions were a serious threat to Bruce Florence," Nelda Cacciotti, who prosecuted the case with Mark Thielman, said in a news release issued by the Tarrant County district attorney's office Thursday. "We hope that all shoplifters get the message that store thefts may have long-term consequences for the victim and the defendant."

The jury deliberated almost three hours before finding Kennedy guilty of aggravated robbery.  State District Judge Mike Thomas then sentenced Kennedy to life in prison. Kennedy has appealed the case....

Besides aggravated robbery, court records show that Kennedy was also convicted Wednesday on five state-jail-felony charges of theft of property in similar shoplifting cases in Fort Worth, four of which involved Walmarts.

The applicable Texas robbery law makes a robbery "aggravated"  if the defendant "causes serious bodily injury to another," but the potential Texas statutory punishment range for such a first-degree felony appears to be 5 years to life.  Given the fact that the defendant here, though apparently a serial shoplifter, did not obviously intend to seriously hurt the store employee who tragically died, I do not see the justification for maxing out this defendant's punishment to life in prison!?!  (I believe this particualr form of a life term includes the possibility of parole in Texas, though I also believe lifers in Texas are not even statutorily eligible for parole for 35 years!)  

September 17, 2011 at 02:43 PM | Permalink


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Seems like the life sentence in this case may run afoul of the Supreme Court's 2000 decision in Apprendi, since the petit jury made no factual finding that it was the assault by the defendant during the robbery that caused the store employee's death. Indeed, it isn't even clear that the grand jury indictment charged that the aggravated robbery had resulted in the employee's death, which presents a Due Process clause notice issue, concerning what the defendant and his counsel had to defend against at trial.

Posted by: Jim Gormley | Sep 17, 2011 3:07:33 PM


Except that as far as I am aware, in Texas just about any felony conviction carries the possibility of a life sentence. Aprendi is only concerned with statutory punishment ranges. So long as this punishment is within the possible range provided by the legislature Aprendi is satisfied.

As for this particular case, $348 is well past the point I believe execution to be warranted. Anything over $50 and I believe death should be the likely sentence and it's only when you get down to the range of $10 or so that I think a death sentence to be unreasonable. I admit that the area between is somewhat fuzzy for me.

Posted by: Soronel Haetir | Sep 17, 2011 3:16:10 PM

Isn't it the lawyer that claims one must take one's victims as one finds them, the egg shell skull doctrine. The employee was frail and sick. Too bad. This is a felony murder or a misdemeanor murder if shoplifting is a misdemeanor.

The sympathy of the left for the killer, and none for the victim is morally reprehensible, that refers to both Grits and Prof. Berman. Why are they so biased? They are left wing, and the criminal grows big government and generates left wing government worker jobs. The victim generates nothing and may rot.

Posted by: Supremacy Claus | Sep 17, 2011 3:57:15 PM

Except for the shoplifting, this is very similar to what happened to a friend last year. My friend was frail and had trouble walking. He and his wife visited a busy restaurant and were having dinner. My friend got up to visit the restroom and a waitress accidentally bumped into him and because he was quite frail, he fell over and was injured. He went to a hospital, then a rehab center and back to a hospital where he died 6 months later. Should the police have charged the waitress with murder?

Posted by: JS | Sep 17, 2011 6:01:07 PM

Except for my lack of talent and physical attributes, I could throw a football like Tom Brady.

Unfortunately, the word "except" changes a lot.

Posted by: TarlsQtr | Sep 17, 2011 10:14:46 PM

Well suppose this defendant was having an argument with someone, punched him, and the victim fell, hit his head, and died. Would a life sentence be so questionable? This guy used force against another person, unjustifiably, and it resulted in that person's death. The use of force was not accidental, though the consequence may have been. Nor was this an instance where someone was just fooling around and things went horribly wrong. He was running out of the store and when someone got in his way, he reacted violently. I personally would not have given him life in prison, but I don't feel like the jury acted unreasonably.

Posted by: Anonymous | Sep 18, 2011 12:44:16 AM

i am going to have to agree. while i think the final sentence is a little crazy considering what it will cost. The basic fact is ...the MAN would be alive if this individual had not COMITTED A CRIME! this injury occured during that crime. It is no different than if he had fired a gun at the individual. Hell if it was two of them running out and the other person had fired a gun and hit and killed someone ...THIS guy would still be liable! So why would anyone think this is different! Crime was comitted and during the comission of said crime this man was hit and injured and died. Never mind the dr said ultimate cause was something else. If not for the fall that other might not have kiled him for days, week, months or even YEARS.

Posted by: rodsmith | Sep 18, 2011 12:58:02 AM

JS --

Except for the unpleasantness, Mrs. Lincoln, how did you enjoy....

Yes, well, moving right along.

"Should the police have charged the waitress with murder?

You actually have to read the story. Defendant Kennedy WAS NEVER CHARGED WITH MURDER, making it more than a little odd to wonder whether the waitress in the example would be. He was charged only with aggravated robbery. Since the waitress was not engaged in robbery of any kind, or charged with same, that's the end of that.

Posted by: Bill Otis | Sep 18, 2011 1:03:45 AM

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