MARGARET MOOREDISTRICT ATTORNEY

February 13,2018

Chief Brian ManleyAustin Police DepartmentP.O. Box 689001Austiru Texas 78768-9001

OFFICE OF THEDISTRICT ATTORNEY

P.0. Box 1748, Austin, TX7t767Telep hone 51 2/t54-9400

Telefex 512/t54-8994MINDY MONTFORI)

FIRST ASSISTANT

LETTER DECLINING PROSECUTION AFTER INVESTIGATION

RE: Officer-Involved Shooting on May 2, 2017 by Austin Police Department OfficerJames Harvel causingfotal injury to Jason Roque.

Dear Chief Manley:

The Office ofthe Travis County District Attorney has reviewed the Austin Police DepartmentSpecial Investigation Unit (APD SIU) investigation of the above-referenced matter andconcluded our independent review of the officer-involved shooting in which Austin PoliceDepartment Officer James Harvel shot Jason Roque. This letter is to inform you of my decisionto decline prosecution of criminal charges against Officer Harvel. My decision does not limit oraddress administrative action by the Austin Police Department, or other civil actions, where non-criminal issues may be reviewed and where different rules and lower levels of proof apply.

The District Attorney's Office has reviewed the investigation of the Austin Police Departmentinto this incident pursuant to the officer-involved shooting protocol that is attached and posted onthe District Attorney official website.r A *py of this letter will also be posted on the DistrictAttorney offi cial website.

Based on the available evidence and under applicable Texas law,2 | am convinced that a juryfollowing the law would not convict Offrcsr Harvel because the evidence proves his use of forcewas justified under Texas law as a lawful exercise of defense of a third person. The followingsets forth the facts determined during our review and provides the legal analysis underlying mydecision.

t httns://www.traviscountvtx.gov/district-attomey/cru2 In arriving at this conclusion, I have relied upon the legal guidelines governing the use offorce/deadly force in Texas

as set forth in sections 9.32,9.33 and 9.51 of the Texas Penal Code, the case authority construing that provision, and the UnitedStates Supreme Court case authority goveming law enforcement use of force.

Page 2 of l8

91 1 CALLS

At 1 1 :03 a.rn on May 2, 2017, the decedent Jason Roque called 91 1. He requested a policeofficer respond to 11313 Long Winter Drive in the Pioneer Crossing neighborhood. Hedescribed seeing someone walking around with a gun and 'going 6azy." He said the man waspointing a black pistol in the air and aiming it at the house. He described the man as Hispanic,with brown shorts and no shirt. He denied knowing who the rnn w:!s. The 91 I call takeradvised that she would send an officer to the location and then ended the call. Subsequentinvestigation revealed that Roque did not actually witness what he described, but instead wasatternpting to summon police to his location.

Roque's mother, Albina Roque, also called 91 l. She had just arrived home from work to findsomething wrong with her son. She said Roque had a fight with his girlfriend and that he wasnot ok and needed help. Throughout the calf Ms. Roque pleaded with Roque to calm down andpleaded with the call taker that she needed help. She described Roque as wearing denim bluejeans and no shirt. Ms. Roque was aware that Roque had already called 911 himself, The calltaker asked if Roque had any weapons. Ms. Roque responded that he had a weapon tucked in thefront of his pants but that it was a toy. The call taker asked Ms. Roque to clariff whether Roquewas carrying a weapon or a toy. Ms. Roque responded "It's just that I don't know, I don'tlclow."3 Roque is heard in the background saying "It's not atoy." The call taker asked if Roquewanted to kill himself or someone else and Ms. Roque responded '!es, yes, yes." Roque isheard in the background saymg "I'm not playing" and "That's why I wanted to walk down soyou wouldn't see this." Ms. Roque then said "Give me that. Give me that, please. Give methat." To which Roque replied "l{o. No." Just before the call ended, the call taker askedwhaher Roque had the weapon outside or whether it was still in his pants. Ms. Roque re,pliedthat it was in his pants and said, '?lease honey, don't - don't do that to me." The call thenabruptly ended.

As police arrived and the event continued to unfold, more people called 9l l. One caller saidsomeone was shooting a gun outside her house on Dry Season Trail. She later described seeingpolice officers chasing someone who was holding a gun to his head. A second caller was on theway to his house on Flushwing Drive when he said he heard three gunshots. As he continuedapproaching his house, he described seeing a police vehicle parked in the street. A third callersaid she heard two orthree gunshots as well as a man and a woiltan yelling and screaming at

each other on Long Winter Drive.

POLICE RESPONSE AND CRITICAL CONFRONTATION

Officer C. Connelly arrived first on scene at approximately I l:20 a.tt in response to the "gunurgent" call and staged behind the cover of a stone column at southwest corner of Musket ValleyTrail and Long Winter Drive, out of sight of the residence. While waiting for backup to arrive,Officer Connelly requested dispatch to confirm with Ms. Roque whether Roque still had a gurL

and if he did, to instruct him to put it down. Officers P. Nelsen, J. Ayers, W. Rounds, and J.

Harvel arrived shortly thereafter and took cover behind the stone column with Officer Connelly.

I Quoted language from Ms. Roque's call to 9l I has been translated from Spanish to English for this document.

Criminal Justice Center, 509 w. I lm Street, Austin, Texas 78701

Page 3 of 18

All officers were wearing department-issued APD uniforms. During this time, dispatch updatedthe nature ofthe call to "attempted suicide" based on statements made during Roque's call to91 l.

The officers made a "stack" formation (essentially a single-file line behind the safety of the stonepillar) and began to develop a plan of approach toward the residence at 11313 Long WinterDrive when they heard Roque and Ms. Roque yelling from the front yard oftheir residence. Theofficers broke formation to see Roque in the front yard. Roque was wearing a black shirt andblue jeans and had what appeared to be a black semi-automatic pistol tucked into his waistband.The officers identified themselves as Austin Police and yelled at Roque to show his hands and

that they just wanted to talk to him. Roque walked up the sidewalk toward the officers empty-handed with his arms outstretched to his sides and yelled statements to the effect of "Just shoot

me," "Just kill me," "Don't make me shoot mysel{" and "I'll shoot myself"

Officer Nelsen requested one of the officers get a less-lethal shotguna because ofthe distance toRoque and the ineffectiveness of a Taser at that range. No less-lethal shotgun was immediatelyavailable so Officer Rounds requested one over the radio. Roque then stopped, pulled the pistolfrom his waistband, and pointed it at his own head. The officers yelled at Roque to put the gundown. After a few seconds, Roque turned around and began walking down the sidewalk backtoward 11313 tnng Winter Drive where Ms. Roque was still yelling in the front yard. Roquecontinued holding the pistol pointed at his head but dropped it down to his side, keeping it in hishand, after approximately three ste,ps back toward the residence. After approximately eight stepsback toward the residence, Roque tumed his upper body to the right and pointed the pistol in thedirection of the officers. Officer Harvel immediately fired his rifle one time at Roque, strikinghim in the right rib cage just below the armpit. Roque bent forward at the waist, dropped hispistol to the sidewallg and began running away from the officers but now angling offof thesidewalk and toward the center of the street.

Approximately three seconds after firing his first shot, Officer Harvel fired a second time.Approximately two seconds after his second shot, Officer Harvel fired a third time. One of theshots missed, while the other struck Roque either on the left hip exiting the upper left buttoclg oron the upper left buttock exiting the left hip. Roque fell to the ground near the middle of thestreet in front ofl Long Winter Drive. Unable to see where the pistol was, the officersmoved toward Roque in a tactical wedge formation still keeping him at gunpoint. Officersarrived to find Roque lying on his back with his hands empty. Officer Nelsen dragged Roquefour to five feet away from where he fell in an attempt to separate him from his pistol securehirn, and begin medical treatment. Officers searched Roque for weapons but found none.Officer Ayers looked back along Roque's path of travel and located the pistol on the sidewalknear the place where Roque was walking at the time ofthe first shot. Once Roque's pistol wassecured, officers administered first aid until paramedics and firefighters arrived on scene and

took over.

4 A bean bag round is loaded into a lessJethal shotgun and its deployment is intended to disable the person without killinghim. Shotguns dedicated to being used for bean bag rounds are often visibly modified with either yellow or green markings, orbright orange stocks to reduce the possibility that a user might inadvertently load lethal munitions into the weapon.

Criminal Justice Center, 509 W. I lm Strcet, Austin, Texas 78701

Page 4 of 18

1. Officer Han'el and other officers 2. Sun'eillance cameras 3- Roque frst shot - Roque collapse

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Surveillance footage showing Roque holding pistol approximately one second before Officer Harvel's first shot

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Roque's pistol

OFFICER HARVEL'S STATEMENTS

Criminal Justice Center, 509 W. I 16 Strcet, Austin, Texas 78701

Page 6 of 18

Officer Harvel completed a'kalk-through"s in the hours after the event in the presexrce of hisattomey and multiple agency representatives, including the District Attorney's Office. OfficerHarvel also gave subsequent interviews to APD Internal Affairs and the APD SpecialInvestigations Unit.

Relevant excerpts from the transcript of Officer Harvel's SIU interview are below:

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So starting with the ftrst thing you know about the call just tell me, uh -tell me what you remember wftat happened.

Okay. So over the radio 'cau$e I'm at the - I'm at the desHop doing theforrn. I wae |uet kind of shutting that stuff down, Call comes out.Disturbance with gun. Subject in the street waiving a gun around. Uh. I

hear severalunits going to it. Uh, walk out to my car. Gel in tha car,Uh. started - pull up on the map to see if I'm anywhere even close to it.Uh" pops up that not too far. Uh. a lot of units going. But it sound likeas it went on, uh, that the guy - wtroever had called it in they couldnteee the guy anymore. So I start thinking well they're gonna be lookingfor this guy" Maybe he might be in a houee, They're gonna need morepeople there if - if they have to surround a house or something,.,

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.,,to that effect, Qr he's randomh walking around and Eomeone - yo{J

knouv they might need help looking for him or cordoning offthe" uh -tho area. So I start going Btat way. Plug into lhe ma- or plug into thecall that I'm on my way, I'm *iving to the call. Updates start on the callaE far as they can't B€e him anymore. And at thie point it's justdislurbance gun call. I believe from what - what l'm seeing. And as I'mdriuing that direction I hit the call zoom so I can eee kind of wfiere thepeople are corning and how the- who's sfiowing up first. Before firstunits arrive tha callc*ranges lo I believe they were $aytfig it wae adisturbance inside the residence. That someona had called insidc lhereeidence that now he"s inside the house, lt's the same localion whorethey saw hirn walking around outeidt with the gun.

Okay,

5 "Walk-through"-shortly after an officer-involved shooting occurs, investigators often ask the officers who fired shots

if they would be willing to participate in a walk-through of the scene to explain how the critical incident unfolded The "walk-through" assists the crime scene technicians in the collection of evidence and gives those investigating and monitoring the

investigation a better understanding ofwhat occumed.

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Page 7 of 18

As !-m going to it, um, they're saying maybe he has e gun, maybe hadoesnl. Then soma - there was en update that he het the gun in hispocket. And it's still just a disturbanca. Thay're trying to make callback. Thare's en open line at som€ point. l'm thinking that more thanliltely what will happen is that this is gonna be a - uh, we'll do eperimeter around thal house, um, onoa we get enough assets thara.Uh, less lethal. Um. some sort of lethal to be able to contain il to - tothat siluatinn - lhat - contaln il to that structure. As I'm on route tho firstofficer there I belbve uras, uh, Ofiicer Conrrelly. He's saying l'm therc"But I'm staging here. I wanne wait for a couple more units to show up.Uh, more updates come, um. that it's his mother calling in. Uh, I didn'tsee attempted suicirde in the call unUl I was openinE the door as I

stopped.

Okay.

Um, as updates are coming in l'm trying to lisilen to 'em. I'm trying tonot to read thern 'ceuse I'm driving pretty quickly there. I dontrernember it being hot sttot aither. So l'm not running code. l'm drMngthere prHty quickly though. And I dont wanna look at evary updatesnd end up crasfiing. lwas tellin', uh, Granl that jusil had an ONA notlong ago lhat somebody was going to and one of the gulrs got intro anaccklent on (unintellgible). So I'm trying to atold that. Trying to be assafe as I can getting there. As I pull in I remember glancing down. Atthis point l'm thinking il's gonna be a barricadad subject inside thathouse from allthe updates. So I thought l'll grab, uh - my - my platecanier and rifle. As I'rn grabbing that I look down and I sae it updatednou on the titb code as attemptocl suicido. And I was silill kind of trytngto hear ewrything enrl drtve at the sam€ lime so I was a littla confusedas to where that came from. Um, Es I'm stapping out of ths car to mowup l'm belbving that this guy is still banicaded in the house. But I starthearing commands from officers that are ahead of me at theintersastion. I stopped on - I cannot rcmember the nama of that strcBt -but it was tha cross strcet thct, uh - lhe actual street that everythinghappened on. lt wes like a T intersection to it. Um, the - the - to ourcurb line - the - tha curb line thet we stopped on ellthe houses - nonc

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of tho houses fam that stt€et. ll was lak€ the - the front of theneighborhood. So it wss backyard hnees. At the street thet thisoccuned on thars'E a - thosa backyard bnces corne up. And thara's ehuge, um, rock column kind of like for tha anlrance of thenaighborhood I belkwe. So I hear'em giving commands thara. Um, l - |

knmr this gu), is already on the $reet. I know from the calls that he hada gun. Um, lhat there's soma kind of disil.urbance. I wanna gat therequickly. Ona of the officers in front of me was just opening his door. I

didnl wenna fumbb with that weil. So I said, 'Hey let rre throw thE in

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your car.' I throw the nest in his cer. And liog up to the, uh - to thecom€r whera tha other oflicars w6re giving commands to him et. Uh, I

heatd in the prcss confarencs they said we approeched the - lhep€ople. \IUe never approached them. We ware - lhey were calling outfor hss lethal. They uere calling to get a taser up. At this point as I getthere I look at the distanca that tha fialla is from us. He's 35 to 40 yadsat that point. And taser's not gonna do any good. Even lss leihelshotgun is not gonne do any good at that point.

Mm-hm.

But we'r€ not gonna approach him untilwa have allthose assats inplace" So as we stop tharc - w6're calling for ihose things. I baliewone of the guys was en route uwelly canies the less lethelwilh him -212. But he hadnt mado it to the aoene yet. As I post up thele, um, the

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rnds erc free. Wa Posfiup on thet - on that brick or rock column thet's there. Um, one of theofficars is giving commands. I come up naxt to him. And I'm coveringdown on the subiect^ I helbw the ofificer next to me has a handgun-And someone elsa had a strotgun. And even lhe buck shot et - that -thal range I don't know how comfortable they wouH fael with a - withusing the - the rifle at that point. Was probably, uh, tha only thing thatcould have efrectirrely - at least that I falt conlilent with engage thesubiect if he had posed a threat to us et that point. Uh, so thet pointthey'ra giving commands to him. I'm watEhing him" l'm covering him"He reaches into his right pocket. Uh, he - ha was yelling as I wasrunning up. I could hear him sytng 'Shoot me - shoot mG'as I comearound the corner. His hands are still out- Uh, I don't remember if he

)/elled it again at that point. He b yalling sorne things. lt's hard for himto undersland him at that point orrer the officers gMng commands andhim yalling. I see his hand go into his pockat - right hand goes into hispocket. He starts to pull a pistol out. At that point I blt threatened to us- the offrcers. I feli lika he wes gonne drsu, it and try to shoot us. Um,as I - I put him in my sights lcould s6e e wornen standing directlybehind him in my line of sight. And, urn, the backdrop wasn't clear. Uh,one of the things that - that - that I haw to think about in any kind ofancounter lilte that is not just fiom you to your target, but what'sbeyond your target. Becausa as munds don't stop just because they hitsomG'one. So | - et that point - lhe reason I didn't fire waE because shewas in the backdrop. And I feared that if I was to shoot it was gonna -hlgh likely chanca of hitting her as well. So real quickly through mymind I uras thinking "okay I can step ecross the sUteet and she'll ba outof that - that, um - that backdrop." Um, hut thb happaned fluilly wilhina fery seconds. As - as he had the gun out il. come up to his fom- or tothe sitle of his head antl he holtls it here. Uh, we had a liille bit of cowr

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wherc wB were- Um. I still felt like we were in dangar becausa it wouHbe a split second for him just to tum the gun and start firing at us if hechosa to. Um. we had a littb bit of corer where we urarB. But still feliunsah at thet point. But ha yellad somelhing or anolhsr. Then hetumd away from us. When he turned away from us ha stiil hd ti|6gun in his r[ht hand and he siafis walking directly down the curb linethat he was at towards tha hmale that was there. Uh, at tfiia tirne I

didnt know thet was his rnolher. I dillnt know who the femele was. I

just saw him walking towatds her. Uh, thtuugh training and erperiencefrom being - where - I'm an adjunct fire ins{ructor and I help out at therange from time to time. I halped out through all the qualificationswhenever we wena doing. uh - the transition from the Smith andWesson originally wilh a 40 caliber Srnilh and Wesson- Uh" throughtraining thet we do when I was on SWAT where you'd work the lino asan instructor w6 wouH do moving and sftooting. And ao as we hadpeople walk away from us towards the targets, um, I had a lot of - lot ofhours watching people shoot and walk towards a target. He s walkingtourards her, uh, tha - there'd alraady bean a disturbance. There'salready, um - you know he - apparutly putting tha gun to his head -yelling ehoot rne - | - l donl belbrc this person has respect for his ownlifie. I hav6 no reeson to beliew he hss respect for anyone elsa"s lib afthat point. Um, so !'m $arting to fear is he going towards her to - toshoot her? ls he going to her to hurt her - to hann her? Um, but 8s he'swalklng one of lhe things I pickod up from - ftom being on lhe rangoand seeing people mov6 and shoot b a normalwalk and a normal gaityou'll see their hands sring and albours s,wing 8s you're behind them.Um, I saw ona - two maybe sGpE- I dont ltnow axactly hou many. Butthere were e coupla steps whora I saw the - the hand swing - lheelbow sring. And then he starls stepping and that elbow"s notswinging behincl him anymore^ And from my training l'tt€ t6en peoplawalk and slroot and - and that elbow doosn't come back anymombacause it's pointing at something. I cant sae what diraction tha barelis pointing. I can't see if the pistol is actual[ pointing directly at her. ButI cen see lhal elbou's not coming beck anymore. fuid so l'rn fearingnow - it's not coming back because it's poinUng et something. And -and he's walking diractly towards her. l- lthink he's pointing at her.Urn. I don't want to bt this threat maniEst itself into an asseult befora I

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take ection becausa my har there is he shoots her l'm gonne have totake action against him. And nou two people arc shot that day. Um" soat that point I made a split second decision to - to stop him from whet I

thought he was about to do" Ard I thought he uas about to shoot har.Uh, lfire one shot" He - he slaggers a little bit- I sae a eaction fiomhim. But he's etill facing kind of in that directhn it - it appears. Um, l'mlooking through an optic. lt's not magnifiad. So the - the size of - ofwhat I'm looking at is - is tho sarn size as ewrybody alee stending

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there looking at it with their naked eye. But it's noxr zerood doun to justthe optics that I see. Um, he siaggers a little bit forward and silillkeeping his shouHars kinda towards har. I fired lwo mora shots andthen he strygers and - and falls doun, um, a - a littlo bit of a distancofrom where the originalshot ryant off. Uh, he - he goas on tha ground.Um, I'm still covering on him - following through in cese he darts to doany{hing from there. In case his hands corne up with the pistoltowardsus. When he fell he - he staggorad. He fell onto his back. l'lis - hishead waE pointing, um - so as we'ra looking down the slr€d his hetarc kinel of towanls us ^ but kind of angbd to*ards the curb lina aswell. So he's kiM of diagonel thruugh the str€at. I cant se6 the rightside anymore where thegun was originalty in his hand. I could see thelafr hand's clear. l'm watching him. People ara starting to - otherofiicers are starting to cell out infornation on the redio. Um, shots warefired, ofiicer involwd. No ofiicars were hanrpd. One subject'e down -these typa of things. ldon't - I dont know exacUy the details on -

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exec$y whet th€y're seying- I'm covering him- I'm listening - but l'm silillfocused on is he going to - to do anything from this point. Um, asthey're doing that I dart to say'Hey this is all important siluffto put outand errcrything, but we need to go down there, sacune him and provklesome kind of medical atention to him now." That's our r€fponsibility todo that- So I - I acknowledge that to them. I tall them, "Hey lhat's - weneed to do this nou- \IVe need to - wa noed to form up - movB tl\aar

there." That was the only approach w6 e\r€r dll to thet becausa wowere waiting for all those less lethaloptions before. But it happene<lwilhin maybe lhreo seconds if that - um, allof that occunsd. So wB'rBposted like I saill at that - at that rock wall or column. Um, I say "Heywe need to move doun lfiere. We need to sacure hirn. And prov*iesome kind of m€dicel attanthn." So quickly - snd I donl know who -who allwas with ma moving up. I know deftnitely that, uh, OfricerNalson was because he was right off the one side of ma. And I knowthat, um - ofiier, uh - Ay,ars mornd up with us es well. There was I

believe sorneone else. l- lwas focused on him. I don't ramemberexactly which officar was moving up with us" They acknosledged tome'Yes wa need to do that." We start to push up. Um, as we'removing up I'm trying to see that right hand that's not axposed to usanymore'causo I'm - I'm kind of figuring that gun might still be in hishand. We start moving up towards him. I'm trying to push overto the -to his right side - my i€fr sile'causs ha- the way he's laying. And - endsee what's there in his hand. They kept wanting to push to the right brus - to his lafl sile. And I guess maybe to cover towerds the house andsee'cause we dk n't know if there was som6on6 else involwd in thehousa. We didn"t know if somaon€ else was gonna come out nowangry becausa of what just happened and try to rataliate on - on us.Um, so we finally moved up whera I could sae his r(7ht hand. I was

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ord€ring him to rabe his hand. He's not re$pffiding at that point, WcSGt dosc enough I can geE the right hand's dear. Urn, I believe lt'sOfficer Ayers that sees the pistol, Uh, a few pac€s back probably in thearea tyhore - uftere the origf,nalshot wBnt otr Um, he eay3 -l got it righthore." I tell him to covar ftat. Keep - keep il and just keep an 6y6 onthe - the house. Um, I believe it wae Officer Neilson originally glovad upand startcd tryrng to do medical - madical attanfiofi for him. UrR, wo'recalling for EMS and all lhat. lt'e clear for lhem to move up. Uh.sorneone - and I don't know whicfi officar il waa - rnorroa up. Starts totalk to the woman who I realize halfuuay through ue moving up therefrom someone saying that trat wat actrally his mofrrer $fiicit I didn'tknorv, And. uh. | - I - that part rigfit there is kind of - kind of craqy to mathat she - she Baw all that, And, um - and not knowing 0tat that was heroridnalh, But. urn. so aomeonG rnov€E up to talk to - to her. We'redoing medicd attantion on him. Fire shorc up, They mova up. They'roasking ue to more units so that ambulance ean get in thero. But thoambulance ended up coming up a difierent street. Tlrcre w€re someofficers running around Wng to movo whides - got stufflikt that, um,tahan care of. And - yeah EMS gpts there. They atart to uork on hlm.They load hirn up and ofito ffra hospital. Um, about lhat fime is whanmy corporal shorved up. He aeked me lo come back. um, and wait fior

him by his vehicles. And - and th6 officere on the ac6na stafiedhandling everything tom ttere. And I - I don't know what happenedftom that poirt on in the call. I tuent back to tte car. Um, I stcured myriffe. I didr't wanna be standing there Etill udth my rifle out, Thero wasno on€ to lihe hand it orer to at that point, $o I secured at my vehicle.Urn. calted GLEAT aftorneys. Called my wife I was involved insomething. And not to - not to worry. That I'd get witt her later. And -and hen lhe process started from there,

OTHER EVIDENCE REVIEWED

Other evidence reviewed in this matter includes audio recordings of the incident taken frommicrophones attached to the officers' uniforms as well as video footage taken from multipleprivate home surveillance cameras in the area of the incident. Virtually the entire confrontationwas recorded on video by these private home surveillance cameras. We have reviewed thesevideo recordings in our analysis. During the course of our review, we learned that a localattorney is in possession of a home surveillance video recording ofwhich APD detectives wereunaware and did not collect during their neighborhood canvass. However, one of our Office'sprosecutors and investigators did review this video recording prior to our analysis and decision;we have concluded that the matters depicted on the video recording do not change ourunderstanding of the facts and circumstances of the incident or our legal conclusion. We also

reviewed the sworn statements ofthe other APD officers present at the time of the incident, theswom statements of Roque's parents Mr. Vicente Roque and Ms. Albina Roque, the swornstatement of a neighbor who partially witnessed the event, and the interviews of Roque'sgirlfriend and her parents. We also reviewed what appears to be a suicide note written by Roque.

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FIREARM AND TOOLMARK ANALYSIS

APD Firearm and Toolmark Examiner Greg Karim responded to the scene. Mr. Karim checkedfor bullet "defects" (marks or damage caused by a bullet strike) on the structures and vehicles inthe likely path of Officer Harvel's bullets, but found none.

Mr. Karim measured the distances betwee,n Officer Harvel's location at the time he fired and thelocation of Roque's pistol and the appare,nt blood stain in the street from where Roque fell. Thedistance between Officer Harvel's position and Roque's pistol was approximately 231 feet. Thedistance between Offrcer Harvel's position and the apparent blood stain was approximately l9lfeet.

Mr. Karim examined Officer Harvel's pistol at the scene and concluded it was consistent withnot having been fired in the incident. Having not been fired, the pistol was neither collected normicro scopically examined.

Mr. Karim collected evidence at the scene including Officer Harvel's rifle; the magazinecontained in the rifle; the ammunition contained in the rifle and magazine; ttuee .223 caliberfired cartridge cases found on the ground near the stone pillar; a fired projectile located on thesidewalk in front ofl Long Winter Drive where Roque was first shot; and Roque's pistol.

Mr. Karim examined Officer Harvel's rifle in the APD firearms lab. The rifle is a Larue Tacticalmodel LT-I5 5.56 caliber single-action, semi-automatic, short-barrel rifle. The rifle had nounauthorized modifications or configurations. The rifle was test-fired and found to functionnormally and be capable of discharging live rounds.

IvIr. Karim examined Roque's pistol in the firearms lab. The pistol is an Umarex brand .177caliber BB pisto[ model XBG. The pistol had missing and broken parts and did not contain a

COz cartridge or BBs. This model BB pistol was noted to be similar in appearance to aSpringfield Armory XD pistol.

Mr. Karim microscopically examined the fired cartridge cases found on the glound near thestone pillar. The fired cartridge cases were positively identified as having been fired fromOfficer Harvel's rifle.

Mr. Karim microscopically examined the fired projectile found on the sidewalk in front oflLong Winter Drive as well as three fragments of a fired projectile collected during Roque'sautopsy. The fired projectile found at the scene was positively identified as having been firedfrom Officer Harvel's rifle. The three projectile fragments collected during Roque's autopsywere also identified as having been fired from Officer Harvel's rifle and determined to be asingle entity prior to being fractured.

In reviewing video footage from the home surveillance cameras that recorded the incident, APDSIU detectives later found that the footage captured what appeared to be a bullet strike on thedriveway of I 1313 Long Winter Drive. Mr. Karim returned to the scene on May 5,2017, andlocated a defect in that driveway that appeared to be consistent with a bullet strike as depicted in

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the video. Mr. Karim did not locate any secondary strikes to the structtre at I Lnng WinterDrive (the house that would have been in the continuing path ofthe projectile), or any firedprojectiles or projectile fragments from that bullet strike. Mr. Karim theorized that the projectile

likely fragmented upon impact with the driveway surface.

MEDICAL EXAMINER

A postmortem examination was performed on May 3,2017 by Dr. Keith Pinckard, the ChiefMedical Examiner for the Travis County Medical Examiner's Office. Dr. Pinckard found the

cause of death to be gunshot wounds and the manner of death to be homicide.6 Roque was foundto have two gunshot wounds. One entered the right side of the chest and exited the left side ofthe chest, then continued into the left arm and exited the left arrn The other wound involved the

left hip and the left upper buttock near the spine, but it was not possible to daermine whichwound was the entrance wound and which was the exit wound. Toxicology testing demonstrated

a low concentration of alprazolam and compounds found in marijuana. There were no other

notable findings.

LEGAL ANALYSIS

We begin by analyzing Offrcer's Harvel's actions taken against Jason Roque. We decidewhether, when considered alone, his actions could poturtially constitute a crime. Ifwe find nopotential crime, our analysis ends. I{, however, we find that Officer Harvel's actions couldpotentially constitute a crime, we then analyze whether circumstances exist that could justiff hisactions and constitute a legal defense to prosecution.

Potential Offense Committed by Officer Harvel:

MURDER: A person commits the offense of murder if he intentionally or knowingly causes thedeath of an individual; or intends to cause serious bodily injury and commits an act clearlydangerous to human life that causes the death of an individual; or commits or attempts tocommit a felony, other than manslaughter, and in the course of and in furtherance of thecommission or attempt, or in immediate flight from the commission or attempt, he commits oratternpts to commit an act clearly dangerous to human life that causes the death of an individual.T

Officer Harvel admits to intentionally shooting Roque with a rifle. Officer Harvel's intent inshooting Roque with a rifle can be inferred as intending to cause serious bodily mjury. ShootingRoque with a rifle was an act clearly dangerous to human life, and in this case did in fact cause

the death of Roque. A preliminary analysis therefore shows Officer Harvel's conduct inintentionally shooting Roque with a rifle and causing his death meets the elements of murder and

could subject him to criminal prosecution.

Potential Defense to Criminal Prosecution:

5 Homicide is the killing of one person by another. Homicide is to be differentiated from murder, which is the unlawfulkilling ofone person by another

7 Tex. Penal Code $ 19.02(b)

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It is a defense to criminal prosecution if a person's conduct is justified.8 Based on the facts,sworn statements, and other evidence in this case, a potential justification for OfEcer Harvel'sconduct, and thus a potential defense to criminal prosecution, is defense of a third person.

DEFENSE OF A THIRD PERSON: A person is justified in using deadly force against another toprotect a third person if under the circumstances as the actor reasonably believes them to be, theactor would be justified in using deadly force to protect himself against the unlawful force orunlawful deadly force he reasonably believes to be threatening the third person he seeks toprotect, and the actor reasonably believes that his intenrention is immediately necessary toprotect the third person.e

Application ofthe Law to the Facts:

The developing information provided by dispatch to arriving officers was that a man, lateridentified as Roque, was agitated, was armed with a gun, was waiving it around in the air, wasarguing with a womarL and was suicidal/homicidal. Efforts were made to determine whether thegun was real or not, but that fact was not resolved prior to the confrontation, and it wasn't fullyresolved until it was examined by the APD Firearms Examiner. The pisto[ though in reality was

a non-functioning BB gun, was similar enough in appearance to an actual firearm that officerswere justifid in treating it as an actual firearm until determined otherwise.

Rather than rush in and force a confrontation, the officers staged a number ofhouses away fromRoque's residence. When officers first spotted Roque, he was yelling back and forth with Ms.Roque in the front yard area oftheir residence. Roque then immediately began walking towardofficers. He drew his pistol, pointed it at his own head, and disregarded commands to drop theweapon. He communicated verbal and non-verbal suicidal ideations to thern Roque then turnedaround and started walking back in the direction of Ms. Roque who was still in her front yard.

Officer Harvel stated that he believed, based on Roque's agitation, his possession of a pisto[ hisdisregard of commands to drop the pistol his walking path leading toward Ms. Roque, and hisbody language in pointing the pistol at Ms. Roque, that Roque was preparing to shoot Ms.Roque. Officer Hanrel stated he fired at Roque to stop him from shooting Ms. Roque. When thefirst shot failed to stop Roque's movement toward Ms. Roque, he fired two more times untilRoque collapsed onto the street.

Officer Nelsen similarly stated he believed that Roque was walking toward Ms. Roque with theintent to shoot her or take her hostage. He stated that he began lining up the sights of his pistolon Roque at the time Harvel fired, but had not yet fired himselfbecause the distance to Roquecoupled with Roque's movement presented a difficult shot with his pistol. Officer Ayers stated

he was not sure why Roque tumed around and started walking back toward Ms. Roque, butconsidered the possibilities that he was either going to become a threat to Ms. Roque ortake

t Tex. Penal Code $ 9.02e Tex. Penal Code g 9.33. See also Tex. Penal Code g 9.31, Selfdefense: A person is justified in using force against

another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the

othefs use or atternped use of unlawful force; & $ 9.32, Deadly Force in Defense of Person: A person is justified in using deadly

force against another ifthe actor would bejustified in using force against the other as described above, and when and to the degree

the actor reasonably believes the deadly force is immediately necessary to protect the actor against the other's use or attempted use

of unlawful deadly force.

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cover behind a vehicle. Officer Connelly did not address in his statement what he believedRoque's intent to be in walking toward Ms. Roque. Officer Rounds stated that his view ofRoque prior to and during the shooting was obstructed because he was behind the other fourofficers behind the stone pillar.

CONCLUSION

Criminal liability against Officer Harvel for murder is established only ifthe evidence proves

beyond a reasonable doubt that all elements of the offense have been committed.'o Further, ifOfficer Harvel produces some evidence ofjustification, the State must prove beyond a

reasonable doubt that the offense was committed without any legal justifications raised by theevidence.ll

We believe the evidence shows Officer Harvel has a legal justification for his conduct that wouldlikely prevail at trial. We believe a jury would find that Officer Harvel reasonably interpretedRoque's actions as an attanpted use of deadly force against Ms. Roque. We believe a jurywould find that Officer Harvel's three shots at Roque were a reasonable use ofdeadly force indefense of a third person because Officer Harvel reasonably believed that his intervention wasimmediately necessary to protect Ms. Roque from Roque's attempted use of unlawful deadlyforce against her. That Roque did not in fact have a deadly weapon at the time he was shot is ofno conseque,nce as Offrcer Hanrel reasonably believed he did. Similarly, the fact that Roquemay not have in fact intended to harm Ms. Roque is ofno consequence because thereasonableness of Officer Harvel's belief is to be interpreted from Officer Harvel's point of viewunder the totality of facts and inferences available to him at the time he acted and not with the

benefit of hindsight or other facts and circumstances unknown to hirn The law does not requirethat Roque actually posed a risk of deadly harm but only that Officer Hanrel reasonably believed

he did at the time he took action.

For the above reasons, we conclude that criminal charges against Officer Harvel are neither

appropriate nor supportable under the law. Conseque,ntly, we will seek no indictments. We are

closing our review and will take no further action in this matter.

We have released a press packet of evidence that we reviewed in making this decision. The

packet includes offense reports, fore,nsic reports, officer statements, witness staternents, photos,

videos, and other miscellaneous evidence. The packet is available to the press as well as any

interested citizen. This decision will be posted on the Travis County District Attomey website

and will be accessible under Jason Roque and the date of the incident, Mray 2,2017.12

lo Tex. Penal Code $ 2.01tt Saxton v. State,804 S.W.2d 910 (Tex. Crim. App. l99l); Jettkitts v. State,740 S.W.2d 435 (Tex. Crim. App. 1983)t2

Very truly yours,

Criminal Justice Center, 509 W. 116 Str€€t, Austin, Texas 78701