A man who scuffled with and injured a Wise County deputy last spring will not have to serve any more jail time.
Danny Scott Payne, 49, pleaded guilty Monday in 271st District Court in Decatur to taking a weapon from an officer, a state jail felony, and received a sentence of seven days in the county jail.
Normally, a state jail felony would carry a penalty of 180 days to 2 years in jail. However, Payne pleaded guilty to the state jail felony under section 12.44 (a) of the Texas Penal Code, which allows the court to punish the defendant with confinement permissible for a Class A misdemeanor. That carried a punishment range of up to one year in the county jail.
Payne’s attorney, Barry Green, explained that Payne had already spent the seven days in jail prior to the conviction.
“Since (Payne) already had seven days credit, nothing more will be required of him,” Green said via email. “Basically, the government got a conviction, and he gets to get on with his life without the future burden of probation or incarceration.”
The reduction in punishment is permissible, according to the penal code, “if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.”
Payne was arrested April 16, 2012, at the Alvord Express convenience store at U.S. 81/287 and Farm Road 1655. The incident began when a 911 caller reported a reckless driver, who turned out to be Payne, who had pulled up to a gas pump. According to audio recorded by the officer, Cpl. Neil Duncan, Payne is asked to stand at the front of his car but refuses. When Duncan asks Payne to show him his driver’s license, Payne is heard saying “No.”
At that point, Duncan says Payne is under arrest for failure to identify, and the officer tells him to turn around and put his hands behind his back. After failing to obey the officer after several requests, Duncan tells Payne that he is “about to be tasered.” When Payne still refuses, Duncan discharges the electroshock weapon. The discharge does not have the intended effect, and Payne runs a few feet.
Payne then comes back toward Duncan. According to Duncan’s statement, Payne grabbed him around the head and neck area, so Duncan brought Payne down to the ground. He said that Payne still refused to be handcuffed, and the officer tried to discharge the taser once again. It’s at this point that Payne tries to take the taser away from the officer. Duncan said he punched Payne in the face in order to try to maintain control of the taser. In the process, Duncan broke his hand.
A witness said he saw Payne grab the taser and throw it away from the two. The witness also said Payne continually tried to stand up in an attempt to resist arrest. In his statement, Payne said he never struck the deputy and slapped the taser away out of instinct.
Finally, Duncan was able to handcuff Payne and place him under arrest.
On the audio, Payne is heard saying repeatedly, “Why are you hitting me?” and Duncan replies “You are resisting arrest.”
Wise County Sheriff David Walker said that Payne, who sustained a broken jaw in the scuffle, told paramedics on the way to the hospital, “If I had my pistol, this would have ended differently.”
Walker said he fears that if Payne had been able to reach Duncan’s service weapon, Payne might have made good on the threat.
Payne was booked into the Wise County jail that night on a first-degree felony charge of aggravated assault against a public servant and released on bond the following day. Two weeks later, Payne was arrested again on a motion to hold his bond insufficient due to the threat Payne had made against the officer. He spent four more days in jail from May 3 to May 7.
Although Payne was convicted on the lesser charge, District Attorney Greg Lowery said it is not because of anything the officer did or didn’t do.
“I don’t have any problem with what the officer did,” Lowery said.
But, he added, it might be hard to convince a jury that Payne intended to cause serious bodily injury to the officer – needed to prove the first-degree aggravated assault charge. That charge would have carried a possible punishment range of five years to life in prison.
During the investigation of the case, Lowery said Duncan wanted a felony conviction against Payne so he could not own a weapon. Lowery explained that with the state jail felony conviction, Payne cannot own a gun for five years, and after that he can only keep a gun in his home. If he was caught carrying a gun outside his home, he could be charged with a third-degree felony.
Walker said he would have liked a harsher punishment.
“We felt like he needed to go to trial or offered something much higher than what he got,” Walker said. ” … Not only do I want to protect our guys, but I don’t think the punishment fits the crime.”
The investigation revealed that Payne had visited at least two bars that evening and consumed several alcoholic beverages. The witness who provided investigators with information at the scene in Alvord is also heard saying he had seen Payne at one of the bars earlier that evening and that Payne was intoxicated.
Green said Payne no longer lives in Wise County, but close to the Gulf Coast of Texas. Payne did not have any prior felony convictions, according to court records.