APPEAL LEAVES DA OFFICE SHAKEN

Court Overturns Conviction Of Man Who Shot Officer

An appeals court overturned one of two convictions against a drug dealer
involved in a 1998 gunfight that left an undercover Houston police officer
partially paralyzed.

In an opinion issued Thursday, a 14th Court of Appeals panel voted 2-1 to
overturn an aggravated assault conviction against Robert Demond Lavern
because jurors were not given a special instruction on self-defense.

Criticism came immediately from the Harris County District Attorney's
Office, where appellate division chief Calvin Hartmann said the decision
would be appealed and that the opinion was "quite honestly one of the worst
I've read in 30 years of practice."

"If I was a police officer, I might think twice about drawing a gun to
protect those judges," cracked Hartmann, who also said the opinion does not
bode well for officers who work undercover narcotics.

Lavern was convicted in May 1999 and sentenced to life for the shooting of
Houston police Officer Vonda Higgins.

Earlier, in December 1998, he was convicted of firing at Higgins' partner,
Ralph Chaison, and sentenced to 24 years in prison.

The terms were to run concurrently.

Chaison was not hit, but Higgins was struck in the neck. As a result, she
has only limited movement in her upper body.

Thursday's ruling applies only to the case that resulted in the 24-year
term. The justices ordered that Lavern get a new trial on that case.

The conviction based on the Higgins shooting is a separate matter and has
not been addressed by the appellate court.

According to the trial testimony, the gunfight occurred outside a West
Branch apartment complex on Feb. 4, 1998.

Chaison and Higgins, both working undercover, were buying drugs from
dealers in the area, including Lavern.

When Chaison refused Lavern's request to put some crack cocaine in his
mouth to prove he wasn't "the law," Lavern pulled at a pistol that snagged
on his clothing.

Chaison drew and fired first, wounding Lavern. As Higgins got out of a
nearby truck to help her exposed partner during the melee, she was shot.

Lavern claimed he was defending himself and didn't know he was dealing with
police officers, even though Chaison identified himself after the shooting
began.

Chief Justice Paul Murphy and Justice Don Wittig say in the majority
opinion that jurors should have been allowed to consider the self-defense
issue because Chaison pulled his gun, fired first and because Lavern didn't
return fire until he was shot by Chaison.

No self-defense charge was given to jurors because prosecutors argued that
one wasn't needed. They said it was Lavern who provoked Chaison and he
could not have reasonably believed that the officer was using "unlawful
deadly force," which legally could have justified his response.

Despite that, the justices who voted to overturn seemed almost apologetic
in a footnote in which they said they deplored what happened to Higgins.
However, Wittag wrote, if there is evidence to support a self-defense
charge, no matter how weak, it should be given to the jury.

In his dissent, Justice J. Harvey Hudson disagreed. He wrote that there was
no evidence to suggest that Lavern believed he was responding to unlawful
deadly force.

Hudson wrote it was undisputed that Lavern was the aggressor and that
essentially voided his right to a self-defense claim.

Defense attorney Scot R. Courtney, who handled Lavern's appeal, had not
read the opinion when contacted for comment. But he said he was pleased
with the decision and dismissed Hartmann's notion that it didn't bode well
for officers.

Courtney said Chaison's actions were never part of his appeal, which simply
rested on the fact that he felt the jury should have been allowed to
consider self-defense.