How Texas Made Ezekiel Gilbert’s Aquittal Possible

by Bella Mansfield, Esq. on June 11, 2013 · 20 comments

in News, Prostitution

Lenora Ivie Frago

Lenora Ivie Frago

Last week, social media flooded with outrage over the acquittal of Ezekiel Gilbert for the murder of Lenora Ivie Frago. On December 24, 2009, Gilbert and Frago met via Craigslist and agreed that he would pay her $150 for her time as a companion. Time, Gilbert argued, that was supposed to include sex. Frago left without having sex with him, fee in hand. Gilbert then decided that her fee was now stolen goods and shot her to reclaim his property. Frago later died due to her injuries and Gilbert was charged with murder. A Bexar County jury acquitted him, leading the sex worker community and people with general good sense to ask: how in the hell did this happen?

Jury trials are, in theory, supposed to be fairer than bench trials as they are decided by a panel of people who bring a variety of life experiences and thoughts to the table. Both sides of have the chance to weed out a few jurors who they think have too much bias during jury selection, but there is simply no way to weed out all jurors with bias. There is also no way to ensure jurors are actually listening to testimony or understand the law. I’ve seen trials where jurors literally fell asleep and then went off to a small room to decide the fate of another human being.

In this case, prosecutors needed to convince these twelve people that Gilbert had committed the act of murder according to the state’s definition. If the facts did show that Gilbert committed murder, there was still a way to find him not guilty: his attorneys could show that he had a plausible affirmative defense. An affirmative defense is a defense that argues the defendant’s actions may meet the elements of the crime, but his actions had good (and legal) reason behind them.

Texas defines murder as when a person “intentionally or knowingly causes the death of an individual; or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual….” The jury heard testimony that Gilbert shot directly at Frago with an AK-47 but that he didn’t intend to kill her. His claim is as moot as it is unbelievable, as the statute states that an act that is clearly dangerous to human life without the intention of death falls under the umbrella of murder. On its face, it would appear the state had a slam dunk case.

Here’s where the affirmative defense comes in. Gilbert’s attorneys never denied that he shot Frago or that the bullets he put into her were the cause of her injuries and death. Instead, they argued that he did it under the protection of Section 9.42 of the Texas Penal Code:

DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property: (1) if he would be justified in using force against the other under Section 9.41; and (2) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

You don’t have to be an attorney to notice that this law is overly broad. One person’s interpretation of what reasonably merits the use of deadly force will vary greatly from another’s. The biggest issue with the use of this affirmative defense is it just doesn’t apply. It requires a “theft during the nighttime” to have occurred. Using the facts we have from the copious articles from this case, it seems clear that there was no theft, and thus this law should have never even entered the picture.

In Texas, theft is when a person unlawfully appropriates property with the intent to deprive of the owner of their property. Appropriation is unlawful if it is without the owner’s effective consent. Gilbert hired Frago off of Craigslist for compensated companionship at his home. Frago arrived, Gilbert handed her the fee consensually, and Frago left without having sex with Gilbert. Frago did not take money out of Gilbert’s hand, house, or wallet. She did not take it with intent to deprive him of his money, but with the intent to get paid for her time.

For the purposes of this article, let’s say it isn’t illegal to sell or purchase sex of any kind in Texas. Let’s say that Frago and Gilbert agreed that he would pay her to come to his house, spend time with him and during that time they would have sex and this was a completely legitimate agreement. Frago’s actions still wouldn’t fit under the definition of theft because he paid her willingly and she made good on a portion of their agreement. Perhaps he would have a civil claim for breach of contract, but her actions certainly do not fit the elements for a criminal charge of theft.1 Gilbert’s defense simply doesn’t stick.

Jury Duty! via Flickr user Mr.Thomas

Jury Duty! via Flickr user Mr.Thomas

Back to the jury. They’ve now heard testimony to support the prosecution’s argument that Gilbert is guilty of murder. They’ve also heard his defense attorney argue that, while he did shoot Frago, he cannot be convicted of murder because he shot her to stop the theft of his property, which is a protected activity under Texas law. The jury then went into a room and debated whether or not his actions constituted murder, and if they did, if it could be excused because his actions fit the allowed defense. In that room they had the laws I listed here. They considered the facts and the evidence and applied it to these elements and somehow came out with an acquittal. A judge can’t overturn an acquittal, so that’s it. That’s the end of the story.

Except that it isn’t, because now a precedent has been set. The definition of “theft at nighttime” has been allowed to be defined so broadly that it now includes incomplete personal service, regardless of the legality of the service itself. You pay your hairdresser to come over and do a cut and color and she leaves with her payment without finishing your highlights? Feel free to shoot her down.

This precedent is exceptionally deadly for women, both in the sex industry and not. Sex workers who feel uncomfortable when arriving to see a client and choose to not have sex with him have the threat of legally sanctioned death hanging over their head. But this can expand past that. Imagine the woman who answers a vague house cleaning post, babysitting post, or secretary post (all jobs I’ve seen listed on Craigslist that have carried an insinuation that sex was expected) and the man hiring her decides that sex is a mandatory part of the position. Her options now are: 1) have sex she does not want to have, 2) not be paid for her time/work or 3) get shot.

These are not acceptable options. So what can we do about it? On a macro level, we can get involved in the legal and legislative systems. We can set up meetings with prosecutors to discuss with them the dangers and challenges that sex workers face and help them build the theories of their cases to include these facts when a sex worker is harmed. We can challenge the vagueness and breadth of laws like these because they not only harm sex workers but service workers generally, who disproportionately tend to be people of color, undocumented workers, and women: those who society is not jumping to protect.

On a smaller scale, we can speak up about our rights and urge our allies to do the same. We can squawk every time the word “whore” is used to slam someone, do some Sex Worker Education 101 when we hear the inevitable “what did she expect” in regard to cases like these, and set fire to the sex worker caste system. We can—and must—do everything we can to chip away at the stigma of what we do. Because if this case had been the hairdresser hypothetical a few paragraphs above, the absurdity of Gilbert’s defense would have shown through instead of being expanded to potentially harm us all.

1. It is interesting to note that in contract claims, you cannot sue for personal service. Contract law states that you can sue for the monetary value of the service, but the court cannot force a person to do perform a personal action. In civil court, Gilbert would have been able to sue to get his money back but not to force her have sex with him. Civil law finds it unconscionable to make someone do a “personal service”, but apparently it’s fine, in Texas, to kill over it.

{ 19 comments… read them below or add one }

Lolo de Sucre June 12, 2013 at 1:46 pm

This is so fucking sad. Her poor family. This is really unbelievable. I wonder how his lawyers feel about themselves right now.


SamE June 12, 2013 at 6:05 pm

You are dismissing the possibility the prosecution just failed to prove the requisite intent for murder. They should have charged and the judge should have given an instruction for manslaughter. You don’t know on what basis the jury acquitted. Read this analysis:


Bubbles June 12, 2013 at 6:10 pm

You’re dismissing the importance of legal precedence, and while Texas law indeed doesn’t say that, this decision could be used in the future to argue that that is a valid interpretation of Texas law.


Paul Walcutt June 13, 2013 at 11:38 am

A decision by a jury is not legally binding precedent. It is a verdict. That’s it. The implication that this is going to result in a huge uptick in slayings of sex workers is hyberbolic.


Charlotte Shane June 13, 2013 at 6:48 pm

Can you please highlight where anyone in this comment section or the original post implied there’s going to be a “huge uptick in slayings of sex workers”? Because as far as I can tell, you built that straw man on your own. Saying something sets a dangerous precedent is entirely different from saying “this is clearly going to set off an unprecedented string of murders.”


Noah Hunter June 12, 2013 at 8:28 pm

No, Bubbles, you (and to some extent the author in the way that she presents it) are misunderstanding precedent. A jury verdict is not a precedent. That the judge allowed the jury to consider such an affirmative defense could be considered a precedent, but given the general discretion afforded to accused murders to present affirmative defenses (e.g. Insanity or temporary insanity even if little in the record supports it,) it is not much of a precedent that a judge allowed the jury to consider it. Furthermore, it was a trial-level court in a specific county, so at best/worst, it would be considered “advisory” to other trial criminal courts in that county.

It is a stupid decision and possibly a corrupt one, but it will have negligible or no effect on the interpretation of Texas murder law.


Bella June 12, 2013 at 11:55 pm

@SamE I disagree. The prosecution was absolutely correct in their murder charge. Manslaughter is appropriate when the cause of death is reckless behavior (e.g. he threatened her with a loaded gun and it accidentally went off). Here, he walked up to her and shot her with an AK47. That shows intent to, at the very least, cause severe bodily harm, which falls under Texas’ murder statute.

@Noah I agree that this will have no effect on the Texas murder statute. In the end, this case wasn’t really about that, though. It was about the affirmative defense. The judge allowing the jury to consider it does set precedent, and while it might just be a trial court in one county in Texas it still matters. This is an overly broad and vague statute, and every time it’s allowed to be used inappropriately it adds to the argument for the next attorney briefing a judge on why it should be considered for their case, too (Advisory decisions can be cited to for other jurisdictions. They are not restricted by county.). Additionally, sex workers travel for work frequently, so any precedent set in Texas impacts not only the women living and working there, but those who tour there, too.

In a less localized sense, this is important because this decision would have likely been different if she had not been working in the sex industry. Any time a decision like this is made (by judge or jury) it adds to the body of cases that imply that sex workers deserve different treatment and that we aren’t worth protecting. That impacts how clients treat us, how prosecutors and defense attorneys build their cases, how laws are applied to us – the whole way the criminal legal (and civil, for that matter) system deals with women who are sex workers.


Amanda June 13, 2013 at 7:49 am

Noah — If you feel this verdict doesn’t change a thing for escorts, come to Texas and starting working as an escort who sees clients at night. Tell me just how safe you feel.


SamE June 13, 2013 at 9:59 am

He did not walk up to her and shoot her. He shot at the car she was driving away in. The bullet hit the tire, then a fragment ricocheted and hit her head.


Bella June 13, 2013 at 10:55 am

@SamE At the time of the writing of this article, every news report I read stated that he approached the car while still stationary, argued with her driver and shot her. If the case is that he shot at the car while it was moving, I still think a murder charge would be appropriate because of the nature of the weapon. Using an assault rifle to shoot at a car with two people inside it shows intent to at least cause serious harm.

I also want to amend my comment to @Noah. When I say that the judge’s decision to allow the defense to be considered doesn’t effect the murder law, I mean that it does not effect how the law will be interpreted directly nor does it only effect murder charges as it can be applied to any homicide charge. It can have an effect on how those cases are tried and the outcomes.


SamE June 13, 2013 at 11:11 am

No, that isn’t what the news reports said. You must have been looking at the gossip blogs like Gawker. Here is a news report:


closetpuritan June 14, 2013 at 6:13 pm

Well, she wouldn’t HAVE to be looking at gossip blogs. That same site and that same writer that you linked to have another story that simply says,

“Gilbert fired several shots at a car occupied by Frago and Perkins as they drove away from the apartment complex.

“Frago was shot in the neck and was paralyzed.”

That said, my understanding is that while there’s no way to know for sure which argument the jury found convincing, the defense attorney believes that the jury acquitted based on the intent defense.


Bella June 13, 2013 at 12:17 pm

@Paul – A decision by a jury isn’t legally binding precedent, but the decision by the judge to allow the affirmative defense to be considered can be cited to in briefs by other attorneys in the county (and in other counties in Texas). As stated in the article, this fact pattern did not meet the elements required for the affirmative defense to apply at all. Not even a little. There was NO theft and yet it was allowed to be considered by the jury. Even with insanity defenses, which I agree are considered in instances where they shouldn’t be, an expert has to (in most states) testify as to the defendant’s mental health. The judge determining that this defense could be used in this instance could be damaging for future cases, regardless of whether the victim is a sex worker or not.
Is this individual case going to instantaneously cause a bunch of sex worker murders? No. Is it yet another instance of a case that is damaging towards how the legal system and culture views sex workers? Yes. And each case like this makes things less safe for sex workers nationally.

Precedent also does not have to mean a SOCTUS or appellate court decision – or a legal decision at all. It can also mean an example or rule used to justify behavior. Which is why, in the article, I did not state that strictly legal precedent had been set.

I’m curious if you or Noah are trial attorneys. If you are, you may have had cases where you really had nothing to stand on case law or legislative history wise to back your argument and had to dig deep to find any leg to stand on for your brief or motion. I know I have – and that’s where decisions like this judge’s choice to allow the defense to be considered comes in.

@Sam – I consulted 8 articles on this case, including Texas news articles. They all listed the same fact pattern, which is why I listed the facts in my article to follow suit.


SamE June 13, 2013 at 4:56 pm

You said: “Here, he walked up to her and shot her with an AK47.” Can you point me to a news article that says that? Thanks.


LoriAdorable June 13, 2013 at 5:15 pm

I’m glad all the dewds came out of the woodwork to tell us silly little ladies how the law works and why we shouldn’t worry our pretty heads about being murdered.

And by ‘glad’, I mean I threw up in my mouth a little.


@merrymisslissie June 14, 2013 at 11:22 am

Preach. Sister Lori.

SamE, Paul, and Noah: y’all could have chimed in with your contributions to the discussion, significant or otherwise, without the mansplainy condescenscion (“You don’t know on what basis … your implication is some words I’m going to put in your mouth … case law and reality are the same thing … you must have been reading gossip mags … “).

You occasionally raised good discussion points, but they were barely audible behind your grunting and dick-swinging.


SamE June 17, 2013 at 10:26 am

I’m a woman. I’m used to being told to shut up. But this is definitely the first time I’ve been accused of “dick-swinging.”


xxxMadam June 21, 2013 at 1:16 pm

A very wordy article albeit very biased as not one word of the so-called pimp involved who played a major role as the driver and his alleged aggressive comment “Want your money back then come get it”. At this point I don’t know if the female was even a hooker or part of a robbery team who did this on a regular basis. ???
I do know Texas would not miss a chance to imprison a body.


Russell June 24, 2016 at 10:17 pm

I’d like to find out the history of this law and who voted for it.


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