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Father accused of killing drunk driver who ran down his sons

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    Is a murder charge appropriate?

  • Duration 7:12
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The new charges coming down in an emotional case of -- heartbroken father taking justice into his own hands.

This Texas dad accused of shooting and killing a drunk driver just moments after he watched that man run down and kill his two young sons.

Just steps.

From their home.

Chris Gallagher has the story live in -- West Coast newsroom Trace.

Happened just outside -- Houston mega 31 year old David -- -- is eleven and twelve year old sons were actually pushing their broken down pickup truck toward their home which was about a hundred yards away the boy's mom and younger siblings were still inside the truck.

Just then a Chevy Malibu driven by twenty year old Jose -- crashed into the truck killing.

Those -- the twelve year old it was critically injuring the eleven year old but he later died at the hospital witnesses say the dad then -- to -- home and came back to the scene.

And when police showed up the driver of the Chevy Malibu who was legally drunk at a gun -- wound to the head here's the share.

And we have witnessed -- -- and we have.

They're -- -- leaving the -- going back toward his residence.

And then returning a few minutes later and he was the only person standing around Jose Guillen has vehicle when they're -- -- -- Only persons getting around but they still have not found the gun but they did find a holster and ammunition inside the -- -- -- now waiting for gun residue test to see -- -- actually fired a gun but he is being charged with murder and being held in 450000.

Dollars bail.

The family of the dead drunk driver says the car crash was an accident what happened after was murder.

And they believe the dead should be punished to the full extent of the law that.

All right Trace thank you.

-- Kelly -- back in session on the docket today is a murder charge appropriate in this case.

Joining me now Mercedes -- she's a Fox News legal analyst and mark -- she's a former prosecutor now defense attorney.

I mean it's it's it's a heartbreaking case -- can only imagine what this for a father went through seeing it happen his twelve year old in his eleven year old mowed down by a drunk.

A driver.

And let's assume for the purposes of just this question that he did it that he went back and got the gun and shot that guy.

To death is murder the rape charge mark.

Yes it is and let me just first say I feel extraordinary compassion for what he went through.

I can't imagine I don't want to imagine what would be like to lose two sons I have two sons my oldest is the same ages of one that he lost one of the ones -- lost.

So my first inclination would want to -- to kill someone who did any harm to my child.

But that being said.

By law without question.

It's murder you don't get to act like you're in the wild wild west and act as judge jury and executioner.

Now where you factor in the facts and circumstances is in sentencing.

You can use all of that to mitigate and perhaps get a much different -- a very low sends compared to those who are accused of the same crime under different circumstances.

But you've got -- prosecute him because it.

Do Mercedes -- guy it not only were his eleven year old twelve year old boy killed but his wife.

His eight year old daughter and his three month old son were in the truck that the drunk driver hit.

So the guy endangers his entire family including his little baby is April girl his two boys die right in front of -- one diver in front and one that your time there after.

-- -- -- Murder I mean I can't believe up Bristol I think is overcharging if you're going to charge him with something look at something -- because that's gonna have with the jury if you overcharge picture is going to say you know what.

We can't actually blame this person even preparing for this today I can't tell how many people -- I final face of it thinks it -- that I have done the same thing diminished capacity he didn't realize temporary insanity these are all the bus ports are out there on the Internet they're all these emails that are flowing back and forth about this particular incident.

Everyone shock and everyone that you know what if this -- that driver with a child killer he was drunk.

Twice the legal limit.

-- would've done -- -- I think this is justice sir.

Not that mark what what about charging the father the big -- -- father with the manslaughter charge in the same way sometimes they'll.

Charge a spouse with manslaughter if you know he finds out the way -- cheating any -- -- in the heat of -- Well I think that they can and ultimately offer him a deal where they reduce the charge to manslaughter and then.

Then there's a lot of different options available but it is technically murder and it's for the defense to argue some wonderful arguments like Mercedes is making diminished capacity.

Or even get a jury and if you're gonna find -- it's going to be in Texas who'll just kind of -- a jury pardon and say you know what.

And I think tennis isn't he needed to be yeah he needed to be killed her I was -- -- case in Texas -- that we'll do they need to be killed as I was.

Let -- -- and that's it.

Defend well I mean in some cases whether it's it's self defense you commission you can make that argument that's not available to him under these are comes as a -- Mercedes mark raises the point.

The definition of murder where -- that just murder what she's been charged with in texas'.

Intentionally or knowingly causing the death.

Of another I mean.

-- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- Between five and 99 years so -- that mark right that this just comes in the mitigation comes in in terms of the sentencing.

I truly believe that this if he takes the stand are obviously they're gonna make this league alignment it's -- they're gonna say he was so temporarily insane by what just occurred.

He couldn't make that distinction in this -- there was no intent to murder he wasn't thinking clearly that's where diminished capacity comes in and their head and carry them.

That those -- of actually acquitted on those and that and everything is that you thank you if you're an offensive or do you go for street acquittal I say you temporarily insane not -- not accountable for his action I think you're accelerant Megan is looking at these circumstances than just talking to people preparing for this today everyone had the same thought oh my god.

This man had to have been temporarily insane watching what happened to his children about that what about the guy who was shot mark I mean -- There's -- -- -- charges against him is he's he's been killed but is there any need a liability for his family.

Based on his actions.

In in you know this vehicular manslaughter at least.

Insisting he could the family be held responsible for anything that he did I don't -- can't send -- cities tournament a state civil league -- -- -- -- -- I -- -- -- They get -- with a broken one another warehouse full benefit but.

For those two children in wrongful -- mark that's what they would -- for.

They within his that I mean what assets as a twenty year old who drives a Malibu I can hang out probably none but that's if there's some there's some insurance that -- -- -- -- they would -- Maybe if there is insurance Tyson I suppose I suppose but it's in his blood alcohol content was -- point 175.

And -- yeah.

There is still question about whether he's he was actually guilty -- and found the gun that well that's always gonna throw that out I know I think though what if what if but they use an alcoholic swab to secure his blood and I don't it turns out he wasn't -- -- -- a governor you know and that's why you don't have -- special.

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