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Complete Forecast for  May 17 2008

By KENNETH DEAN
Staff Writer

ATHENS — A denied motion to rule out the death penalty as a possibility in the murder trial of Randall Wayne Mays punctuated the state’s case against the man accused of killing two lawmen and wounding a third.

Henderson County District Attorney Donna Bennett and Texas Attorney General Prosecutor Wesley Mau completed their portion of the capital murder case against Mays Wednesday afternoon.

Mays faces either life in prison or a trip to the Texas Death Row if convicted of the May 17, 2007, killings of Henderson County Sheriff’s deputy Tony Price Ogburn, 61, and 63-year-old investigator Paul Habelt.

Both men were shot dead while responding to a domestic disturbance where shots were reportedly fired on Crawfish Ranch Road.

Lt. Kevin Harris, then a patrol deputy, was also shot and returned fire in a battle for his life.

Kevin Harris describ-ed for the jury what happened after he arrived on the scene and tried to talk Mays into giving up. “He got a different look on his face all of the sudden and he ran back in the house. I tried running after him, but he had already made it back in the house,” he said.

The lieutenant ran behind a shed and found deputy Eric Ward, who had handcuffed Mays’ wife Candace to keep her out of the line of fire. After talking to Ward, Kevin Harris said he went back to his vehicle and got his rifle and then made his way back to the shed.

He said he remembered hearing a shot but did not know where the gunshot had gone until he heard his brother yelling that an officer was down.

“It wasn’t very long before I heard another shot and then I heard deputy David Harris (his brother) say ‘Officer down! He shot Paul.’”

Fearing others might get shot, Kevin Harris said he ran from the shed and was going to start firing into the house, but he encountered Mays in the yard with a rifle.

After being hit by a bullet from Mays, he laid down on his back with his rifle on his chest and began “rapid firing” toward the suspect, but Mays kept firing.

“He had a handgun in his left hand and was firing it at me,” he said.

David Harris choked back tears as he described watching both Ogburn and Habelt get shot. He would testify that after the first shot that struck Ogburn, he would not hear another shot that day.

“As soon as deputy Ogburn told me to watch myself I heard a shot being fired. The shot struck deputy Ogburn,” he said.

David Harris said Ogburn fell to the ground and he tried to render aid.

“I knelt down beside him and called his name. I tried to render aid, but I couldn’t,” he said. “He had a massive facial injury.”

David Harris said he called officer down on the radio, but that he never heard another shot that day.

As he was getting up, he said he saw Habelt fall to the ground,

“It appeared he was struck in the head area and he fell to the ground,” he said. “I did not hear that shot. At this point I was trying to reassess the situation … when I heard my brother yell out ‘I’m hit! I’m hit!’”

David Harris said after Mays was in custody he checked on his brother and made sure he would be OK before he went back to Habelt and Ogburn.

“I knelt down and talked to them both one last time,” he said.

Bennett asked if he saw deputy Billy Jack Valentine, who had been pinned down during the ordeal, after the shooting.

“I found deputy Valentine and he was crying and sobbing and I just grabbed onto him and took him to the patrol car and comforted him,” he said.

Mays’ attorney, Bobby Mims, asked Kevin Harris if he felt proper protocol had been followed and the lieutenant said nothing could have been done differently.

Mims asked about rants Mays made about his brothers being killed by police and him being poisoned and dying and if Kevin Harris thought they were statements a rational person would make.

“I don’t know what his state of mind was,” Kevin Harris replied.

Earlier, Mims attempted to have a short interview Mays gave while being led into the Smith County Jail suppressed from the jury, but Judge Carter Tarrance said that even though he did not agree with the practice of allowing media to question suspects during “perp walks” he could find no legal reason not to allow the jury to see the tape.

As the jury was dismissed, Mims filed a motion for the jury to be given an instructive verdict to not include capital murder as an option during the guilt-innocence phase. Judge Carter denied the motion and told the parties the court would resume at 9 a.m. today.

Updated Thursday, May 8, 2008 at 6:58 a.m. CDT