AUSTIN (KXAN) - The police officer who shot and killed Byron Carter in May 2011 -- and now at the center of a lawsuit brought by the Carter family -- took the stand Tuesday.
"My realization of what the situation had become is when I saw the driver's hand come up," said Austin Police Officer Nathan Wagner, talking about the hand coming up to move steering wheel. "It was his violent action -- the way he did it so quickly. It was my first indication of what the situation was about become."
The incident that led to the shooting began when Wagner and his partner, Officer Jeffrey Rodriguez, were on bike patrol in Downtown Austin investigating car burglaries on a "spotter operation."
Wagner said Tuesday that he and his partner went up Eighth Street looking to see if cars were burglarized -- not expecting to come across the men.
"We were there because that area is a high-crime area," said Wagner.
He said he was surprised to see them, and Carter and his friend, Lee Webb, were reportedly looking into cars as though they were going to steal them.
Wagner said Carter and Webb were walking together and looking around in all directions pretty quickly, making the officers suspicious.
"I was trying to find a legitimate reason for them acting the way they were. When I didn't see one, we decided to follow," said Wagner.
The officers followed but eventually lost sight of the men after an apartment building on Eighth Street blocked their view. Wagner said they felt the men must have run off or been laying down nearby.
Wagner said that at that point, they wrote off approaching the men and only proceeded up Eighth street to see if any cars had been burglarized. That's when they came across Carter and Lee inside their car.
"I was actually surprised to see them in the car," said Wagner. "As soon as I saw the individuals, it was my belief we would probably just talk to them real quick."
But Wagner said Webb made a quick action with his hands, and the engine roared before the car lurched toward him and Rodriguez. The car pulled out so quickly that it hit the SUV parked in front of it.
Wagner said the whole chain of events lasted around 2.5 seconds and that the roar of the engine combined with the sound of the collision made it very dramatic.
Had he not jumped instinctively out of the way, Wagner said he believes the car would have hit him.
Wagner said the then-16-year-old driver, Webb, eventually tried to run over his partner, so he opened fire -- killing Carter.
Carter family attorney Adam Loewy asked Wagner in court on Tuesday whether it had become a deadly force situation once the car began moving.
"Based on the direction and manner on which it moved, yes, sir," said Wagner.
Asked whether he thought the car hit his partner, Wagner responded, "It was my perception that night that it did, sir."
Wagner testified that he had a target, which was the driver, but he said he was not able to get the mechanics of his body in the proper form for aiming.
"On that particular night, I was unable to do that," he said. "I had a target and attempted to shoot my target. Someone other than my target was hit."
He testified that he fired into the car in order to stop it. Wagner testified that race had nothing to with his opinion that Carter and Lee were acting suspicious.
When Wagner was done testifying, Rodriguez was called to the witness stand. He said he wanted to use the "element of surprise" and the "cover of darkness" to make contact safely with the car that had its headlights on.
He believed given the lighting circumstances and to avoid being silhouetted, this was the safest way to approach.
The car hit him in the shin according to Rodriguez who said although there was no bruise on his shin, it caused him to reaggravate an Achilles injury suffered a few weeks prior.
While the investigation was taking place after the shooting, Rodriguez made the comment "I've already been to (internal affairs), we are going to get in trouble for this (expletive.)
While on the stand, Rodriguez clarified the statement by saying his visit with internal affairs was from a 2009 incident where he accidentally discharged his weapon while chasing a subject.
He said his fear of getting on trouble stemmed from that 2009 meeting with internal affairs and the stress it can put on an officer.
In opening statements earlier in the day, defense attorney Robert Icenhauer-Ramirez said five shots from the 15 Wagner had loaded in his gun were fired in 1.4 seconds. Ramirez said the jury would hear Byron's driver, Lee Webb, testify that Carter had a lap full of cash in the car and then yelled, "Go!" when he saw Wagner and his partner.
Meanwhile, Loewy told the jury that the family is asking for at least $1.5 million, though the family insisted Monday, "It's not about the money. It's about justice. It's about the truth."
Loewy said a lifetime of future memories has been taken from the Carters.
"When you bury a child, you're burying the future," said Loewy.
Earlier Tuesday morning, the judge presiding over the Carter
family lawsuit -- stemming from Carter's death two years ago -- ruled that the reports about the initial incident from the Office of the Police Monitor and Citizens Review Panel are inadmissible in court.
"It is pretty clear that no member of the CRP read the entire Internal Affairs report," said U.S. Judge Lee Yeakel of the 2,000-page report. "I find they both fail on the basic trustworthy factors because of the methodology leading to the memorandums."
Yeakel also said the methodology that arrived at these memos was flawed in the oversight and that the methods do not constitute -- and did not meet the criteria of -- an investigation.
Police Monitor Margo Frasier testified in federal court Monday that she recommended a suspension of at least 90 days for Wagner.
She also said during the first day of a civil trial in the Carter shooting that although it was "objectively reasonable" for the officer to want to stop the car Carter and a friend were in because an officer was in danger, Police Officer Nathan Wagner violated police policy in the manner in which he fired his weapon.
Frasier's testimony in Yeakel's court came before the jury was seated in the lawsuit filed by Carter's family. The family contends that police had no cause to suspect Carter and a companion of wrongdoing when they initiated the action that culminated in the May 30, 2011 shooting.
The Citizen Review Panel that looked into the shooting said the officers profiled the 20-year-old Carter and his companion because the were African-American, KXAN reported last month.
A grand jury, which did not have access to the Citizen Review Board report, declined to make an indictment.
The report is kept sealed under the meet-and-confer agreement because the action did not result in a one-day or longer suspension of the officers.
Police Chief Art Acevedo also testified with the jury outside of the courtroom. He defended his decision not to suspend the officers, saying the review panel's opinions were not supported by the facts..
In addition to Frasier's testimony, a jury was seated on Monday. More pretrial action outside of the jury's view is expected on Tuesday, Yeakel is expected to rule on whether the police monitor's recommendations and the report from the Citizen Review Board will be admitted into evidence.
Late Saturday night into early Sunday morning, a light band of freezing drizzle traversed the I-35 corridor eastward. With sub-freezing temperatures, even the light precipitation created major problems.
A 10-year-old was killed while standing outside a vehicle after the child's family was involved in a fender bender, DPS said.
Austin Police confirm they have located an 82-year-old women who went missing last night.
APD is responding to a 25 vehicle accident near the 5400 block of Ed Bluestein near Thurgood Ave.
A man is dead after being hit by several vehicles in the eastbound lane of Highway 71 Saturday night.
A representative at the Fayette County Sheriff's office said that Fayette County is effectively shut down due to icy conditions.