KBTX Legal Analyst Explains Why Murder Charge Against Tillery is Not Capital Murder

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BRAZOS COUNTY- Nathaniel Tillery sits in the Brazos County Jail on $1,025,000 bond. That amount was increased after a murder charge was added by Jarvis Parsons from the Brazos County District Attorney's Office.

Lieutenant Chuck Fleeger says the new charge was based on the information obtained in Kevin Garcia's autopsy report. Fleeger says, "One of the contributing factors was the lack of medical attention due to the injuries received in the assault, robbery and kidnapping."

Garcia was beaten at Drew's Exxon in College Station on March 27th and driven to North Texas where he was found nearly 12 hours afterthe assault. Garcia's family removed him from life support days later due to critical head injuries.

KBTX Legal Analyst Shane Phelps says "murder" has three definitions in Texas, but only one under Penal Code 19.02 (b) (1), intentionally and knowingly causing death, can get prosecutors to a capital murder charge. He says, "A lot of people believe just because there was a kidnapping involved and somebody died that it means it's capital murder and that's just not the case."

Phelps says prosecutors still have to meet other standards. One of the standards says the defendant intentionally kills someone while committing or trying to commit crimes like kidnapping or robbery. Tillery may face those two charges, but Phelps says it's the intent to kill that's important in this case. "There are facts situations in which somebody could kidnap somebody and do something real bad to them but not intent to kill them, but if they do die, then you've got murder and kidnapping. But if they kidnap the person and the intent is to kill them and the state can prove that beyond the reasonable doubt, you have capital murder."

Phelps says pending the outcome of the investigation, District Attorney Jarvis Parsons could still upgrade to a capital murder charge, if there's evidence to support it.