Texas court denies appeal of former Dallas cop Amber Guyger, who shot, killed Botham Jean

Amber Guyger will not have the opportunity to appeal her murder conviction to the Texas Court of Criminal Appeals, the state’s highest criminal court, after the judges decided not to grant her petition for a discretionary review.

Guyger, who in 2018 went into the wrong apartment after a 14-hour shift as a Dallas police officer and shot and killed Botham Jean, was sentenced in 2019 to 10 years in prison. Guyger said she mistakenly went to Jean’s apartment and thought she was walking into her home when she saw Jean inside and shot him.

The ex-cop argued in a previous appeal that there was not sufficient evidence to convict her of murder because she believed she was defending herself. That appeal was denied in November 2021.

Judges Michelle Slaughter and Kevin Yeary, two of the nine judges on the appellate court, said in a dissenting opinion they believe allowing Guyger to appeal to the Court of Criminal Appeals would allow it to “consider and finally resolve” issues she has with her conviction.

Guyger’s attorneys argued in their two previous attempts to have the verdict overturned that what the fired police officer did was akin to self-defense. Although Jean did not present an actual threat to Guyger, because she mistakenly perceived his presence as a threat, her attorneys argued she was justified in using deadly force to protect herself against that perceived threat, according to Guyger’s appellate brief.

Attorneys for the fired police officer said in the last appeal that Guyger’s “mistake of fact,” or incorrect belief or understanding of a situation that led to the outcome of entering the wrong apartment, which had an identical floor plan; her fatigue; the fact that she was talking on the phone; and the fact that the door opened when she put her key fob into the lock gave her reason to believe she had to defend herself.

The door did open, but because the door was already slightly ajar and not because Guyger’s key unlocked it.

The Texas Fifth Court of Appeals, which was the last to hear Guyger’s argument, said in its ruling that her appeal on the basis of self-defense due to mistake of fact was insufficient “because no evidence negated Guyger’s intent to kill Jean when she shot him.” The court also said that mistake of fact does not support Guyger’s claims that a reasonable person would feel they were in immediate danger.

Yeary and Slaughter said in their dissenting opinion that they wanted the opportunity to examine the instructions given to the jury for errors and the legal sufficiency of the evidence against Guyger in relation to her argument that her mistake of fact was sufficient to create an argument of self defense.

“It could make a difference here,” the judges wrote in the opinion.

Slaughter and Yeary wrote in their opinion that if the previous appeals court was using incorrect jury instructions and legally insufficient evidence to measure the appeal, its opinion would be poisoned.

Previous appeals courts “should not have simply inquired whether the evidence was sufficient in the assumption that retreat is a relevant consideration,” the dissenting judges wrote, acknowledging that there is no question on record that she was in the wrong apartment. “It should at least have also inquired whether she was nonetheless had ‘formed a reasonable belief’ “ that she was in the right apartment, their opinion said.

Guyger will be eligible for parole in 2024.

This story contains information from the Star-Telegram archives.