The Texas Court of Criminal Appeals found that the accused acted deliberately with the expectation that death would result in Cordova v. State, 698 S.W.2d 107 (Tex:Crim.App. 1985). The accused first approached the victim and then returned with three associates. Id. at 112. He struck the deceased with a tire iron. Id. at 113. Thus, the court concluded, he intended or contemplated that a life would be taken. Id.

In stark contrast, Halprin played no role in the killing. He testified repeatedly that he did not shoot Officer Hawkins, intend to shoot Officer Hawkins, or attempt to shoot Officer Hawkins (Other evidence indicates Halprin never shot his gun. See Ground for Relief III, below). See RR 47, p. 97. ("I did not shoot Officer Hawkins." "I never discharged a firearm at the Oshman's."); (RR 47, p. 98) ("I never pulled my weapon at the Oshman's"); (RR 48, p. 24) ("Q. Did you pull your gun and shoot your gun?" "A. No, sir." "Q. Where was your gun?" "A. At some point in time it fell down my pants." "Q. What do you mean?" "A. It actually -- because I was just holding it like in the jeans belt area, the waist of the jeans, and that's all I had to -- you know, I didn't have a holster or anything. And at some time during all that incident, it had fallen down my pants leg"); (RR 48, p. 29) ("A. Donald Newbury came in and he said, 'What's wrong with you'? And I said, 'I've been shot in the foot.' And he told me to stop whining and stop crying and he said that George Rivas had been shot and, you know, because I remember him saying he was shot in the car, but I wasn't sure where he was shot at and I asked him where and he goes, 'You know where because you did it.'" "Q. What did you say?" "A. I said, 'What are you talking about?'" "Q. What did he say?" "A. And he said -- he goes, 'You were firing crazy.' And I said, 'I never shot my gun.'" "Q. What happened then?" "A. And he said, 'Weil, we'll see. Where's your gun?' And I said, 'It's in a bag somewhere.' I was telling him to, 'Check the gun, check the gun.'" "Q. Did they go check the gun?" "A. Yes, sir." "Q. And had it been fired?" "A. No, sir"); (RR 48, p. 34) ("Q: Was there any conversation among any of y'all in the planning of this Oshman's that if there was a serious confrontation, you were going to kill anybody?" " A: No, sir"); (RR 48, p. 39) (in interviews with the news media, "I told every single one that I did not ever pull a gun and I didn't ever fire the gun"); (RR 48, pp. 45-46) ("Q. What was Murphy's role in the Oshman's robbery?" "A. He was basically a lookout to monitor the scanners and radios and watch the parking lot to see if there were any, you know, patrol cars patrolling through or anything like that." "Q. To the best of your knowledge, is that what he did?" "A. To the best of my knowledge." "Q. To the best of your knowledge, did he shoot at anybody?" "A. No, sir." "Q. Were you ever told that he was supposed to act as a sniper or get into a fire fight with anybody?" " A. No, sir, not in front of my presence that was never discussed"); (RR 48, p. 50) ("Q: Did you ever have any intention, yourself, of shooting somebody or killing anyone?" "A: No, sir, never in my life." "Q: Best of your knowledge, was there any discussion by anyone else of shooting anybody or killing anybody during the course of any robbery?" "A: No, sir"); (RR 48, p. 55) ("I can tell all of y'all that I did not intend the death of the officer. I didn't shoot him. I didn't pull my gun. I didn't (phonetic) want to rob the people. Obviously I did, but I didn't anticipate anybody being killed. I didn't know that anybody was going to be killed and then, you know, I live with it every day. Every time I look at my foot I think back to that night and it's something I live with. And I understand the consequences, but I didn't kill him. I didn't want anybody to die or anybody to be hurt"); (RR 48, p. 102) ("Sir, I did not shoot the officer. I did not pull a gun and I think the evidence shows that"); (RR 48, p. 137) ("Q: Do you think that they might have thought about using some of that ammunition?" "A: Absolutely not"); (RR 48, p. 141) ("Q: And Murphy's role was to sit out there and monitor the police channels?" "A: Yes, sir." "Q: Why did you need him to do that?" "A: So we would know if anybody was coming, so we could get out of there"); (RR 48, p. 142) ("Q. Did you miss that meeting where Mr. Murphy was issued that AR-15 and was going to be a sniper-- "A. That was never discussed in my presence."); (RR 48, pp. 143-144) ("Q. Apparently Mr. Murphy was anticipating some trouble with the police, wasn't he?" "A. I can't say what he was or what he wasn't." "Q. If you believe his statement where he says, 'I was to initiate the fire fight with pursuing police,' that --" "A. If that's what he says, then he must have." "Q. But you didn't know about that?" "A. I did not." "Q. What was the plan if the police were going to come?" "A. As far as I know, Rivas said that he was going to show them the security badge or something to take them off guard." "Q. Is that what he talked about?" "A. Yeah. He said that he was going to do that, something to take them off guard and they were going to try to subdue them." "Q. And how was he going to subdue the police?" "A. Use the handcuffs." "Q. So it had been talked about if the police did arrive, they were going to be subdued?" "A. In a nonlethal way, yes, sir." "Q. You are telling this jury you didn't think anything bad would happen?" "A. I didn't believe anything bad would happen"); (RR 49, p. 43) ("I never made a statement to law enforcement or to media that I fired a weapon"); (RR 48, p. 39) ("Q: Well, Detective Spivey, do you have any direct evidence that shows this jury beyond a reasonable doubt that Randy Halprin discharged a firearm that night? Any direct evidence?" "A: No"); (RR 42, p. 82) ("Q: Well, in Mr. Murphy's statement he goes back and checks and says that, hey, Randy Halprin's weapon wasn't fired." "A: He does"); (RR 42, p. 88) ("Q: Do you recall during the course of your investigation in reviewing the statements, that Randy Halprin' s weapon was checked by the other individuals and it was still fully loaded, the revolver that he was supposedly carrying?" "A: I believe Mr. Murphy makes reference to that." "Q: And his weapon was fully loaded, right?" "A: That's correct." "Q: And hadn't been discharged?" "A: According to Mr. Murphy, that's correct"); (Exhibit 26, Rodriguez's statement) ("Halprin did not shoot. When he was getting out, his gun fell down his pants into his boots") Thus, the circumstances do not satisfy the Enmund constraints.

Additionally, Halprin did not act in reckless disregard of human life. When the patrol car arrived, Halprin did as always; he followed instructions:

Q. Okay. When is the first time you see the patrol car?

A. As it was pulling up.

Q. And what happens as Officer Hawkins pulls up in the car?

A. George Rivas told me to stay put.

Q. And what did you do?

A. I stayed put.

Q. What did George Rivas do?

A. He walked up to the patrol car.

(RR 48, p. 21).

Halprin testified he remember Rivas reaching for something and that he thought it was his security guard identification badge. (RR 48, pp. 21-22). He further testified he did not expect violence:

Q. What did you think was going to happen at this point in time?

A. I thought that he was going to say, hey, you know, I'm a security guard or something to take him off-guard.

Q. Okay. What did you think might happen after that?

A. That he would just, you know, say, hey, kind of pretty much what had happened in the previous robberies, that you know, you came at us at a bad time, you know, handcuff him or whatever he's going to do and we were going to go on our way.

(RR 48, p. 22).  

Halprin then testified that, to his surprise, shots were fired:

A. He walked up to the car where the patrol car was and he reached back. I saw him reach back for his, what I thought was his security badge. And then at that time he had said something, I can't remember what he said, and then the next thing you know I just heard gunshots.

(RR 48, pp. 22-23).

Halprin testified he ran from the scene:

Q. What did you do?

A. I freaked out and started running around the car. I ran around the Ford Explorer. The first thing in my mind was get across the field.

Q. Okay. Now, had y'all left a car someplace?

A. There was a blue Honda across the field at the apartment complex.

Q. And why had y'all left a car there?

A. In case we had to take off on foot.

Q. So is that where you were headed?

A. Yes, sir.

Q. And as you ran off, what happened?

A. I heard somebody call my name. I turned around and that's when I felt my foot go numb.

Q. Did you know at that point you had been shot?

A. I felt like I had been shot, yes, sir.

Q. All right. What happened after that? What's the next thing that happened?

A. I had gone down those, like there was like a grassy embankment and I remember going by them. By then, I believe, a lot of people had filed into the car because the car was already moving. I remember Joseph Garcia and Rodriguez doing something and the car, the patrol car, moving back and the car, the Explorer, backing out. And then I heard somebody tell me to, "Get in the car. Get in the car." And I jumped into the front, the right side of the front seat in Newbury's lap.

(RR 48, pp. 23-24). See also RR 49, p. 26. ("When the shooting started, I just broke and ran").

Halprin acted neither with the extreme culpability of the defendants in the cases cited, ante, nor with the degree of force necessary to warrant a penalty of death. He thought Rivas intended to confront the officer with his security badge, not with bullets. When shots were fired, he did not participate; instead, he ran.

In essence, Halprin played no part in the killing, the circumstances leading up to the killing, or the circumstances following the killing. Halprin did not exhibit reckless indifference, and imposition of the death penalty upon him is unconstitutional.

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