HOUSTON – The family of a 9-year-old Houston girl who died after she was shot by a man who had opened fire when he was robbed at an ATM said Wednesday they remain angered by a grand jury’s decision to not indict the man.
“That was not an accident. That was not self-defense,” April Aguirre, the aunt of Arlene Alvarez said during a news conference as a photograph of the girl as she lay in a hospital bed bloodied and bandaged shortly before her death was shown.
Tony Earls, 41, had been charged with aggravated assault, serious bodily injury, in Alvarez’s Feb. 14 death. On Tuesday, a Harris County grand jury could have indicted him on this charge or several others, including manslaughter and murder, but declined to do so.
However, the grand jury’s decision was not a surprise as prosecutors’ efforts in this case had little chance of success, according to a legal expert.
Texas law “gives very, very broad self-defense rights for people carrying guns, even if the person makes a mistake,” said Sandra Guerra Thompson, a law professor at the University of Houston Law Center.
Earls and his wife were at an ATM to withdraw money when an unidentified robber pulled a gun on them and fled after taking $20, along with a check and their car keys, according to prosecutors.
Earls’ attorneys said after their client go out of his car, the robber fired and Earls fired back in self-defense.
Investigators say Earls fired at a truck thinking the robbery suspect had possibly climbed into it. But the vehicle was actually carrying Alvarez and her family as they went to the ATM to make a deposit before heading to a late dinner at a pizzeria. The girl was shot in the head and she later died at a hospital.
Earls’ attorneys say their client continues to grieve for Alvarez, but that the grand jury made the right decision and that the person responsible for her death is the robber.
“Mr. Earls did what we believe anyone in that situation would have done. We are relieved that, despite the emotion and tough decisions that had to be made in dealing with this case, justice was served for Mr. Earls,” his attorneys, Myrecia Donaldson and Brennen Dunn, said in a statement.
Harris County District Attorney Kim Ogg said the grand jury’s decision didn’t mean “that you’re innocent, Mr. Earls. It means that you were not held criminally accountable.”
Gwen Alvarez, the girl’s mother, tearfully said Tuesday the grand jury’s decision left her feeling that “the system failed us.”
“In my eyes, (Earls) is guilty because he was the one who decided to fire on our vehicle multiple times and he didn’t stop until he ran out of bullets,”
Rick Ramos, the attorney for the Alvarez family, said Wednesday that Earls’ actions were reckless and he questioned whether Earls was capable of carrying a weapon as his lawyers had indicated in court records that he had suffered from mental illness before the shooting.
But Thompson said issues of mental illness would not have made a difference in this case as Texas does not have red flag laws that would allow law enforcement or family members to ask a judge to order the seizure or surrender of guns from someone who is deemed dangerous, often because of mental health concerns or threats of violence. Last year, Texas lawmakers expanded gun rights by letting people carry handguns without first getting a background check and training.
Ramos said he plans to have an independent expert review the evidence and see if the case can be presented to another grand jury.
But Ogg said investigators planned to focus on finding the unidentified robber and holding him responsible for Alvarez’s death, with authorities now offering a $30,000 reward for information leading to his arrest.
“If Mr. Earls had shot the robber... we probably would be celebrating him,” Thompson said. “But that wasn’t the situation and unfortunately, tragically an innocent child was killed.”
The Associated Press contributed to this story.
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