Amber Guyger, when the National Review is calling you out, you're probably in deep shit.

[moriah]

16. It requires a close reading of culpable mental state and justification

Also, a close reading of the defense of "mistake of fact" and differentiating it from "mistake of law".

A person is presumed justified when they:

(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment

The "justification" chapter here suggests "occupied" has a different meaning from "habitation", as only habitation is specifically defined. There still could be argument about it meaning a "customary dwelling", where they lived.

I personally would argue, though I'm not sure if the Texas Supreme Court has made case law distinguishing between the meaning of the statute in these two scenarios, but "mistake of law" could exist if Texas defines "occupied habitation" as meaning protecting the owner inside the habitation defending against intrusion as it is happening, or would actually cover storming into a house to be the Lone Ranger when you essentially have them trapped within.

You'd probably better be right about your legal right to enter the dwelling, would be my guess -- unlikely to be charges if a real home intruder is killed, but it's a "taking unnecessary chances" scenario even armed to enter your own empty-except-for-an-intruder home to deal with them. They could be armed, too.

Which would totally negate her "mistake of fact" defense, that she believed that apartment to be her "castle".

But let's go to murder. There's a note in the beginning of the penal code chapter.

(a) In this section:
(1) “Adequate cause” means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.

The two easier ways to define murder:

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

There's no doubt she intended to cause Botham Jean serious bodily injury by shooting him, even if her intent is going to be claimed to not be to kill by her allegedly rendering aid. Also, she did commit breaking and entering, though that again may go to a "mistake of fact" defense to that part.

So we look at "culpable mind states":

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

It's easier to argue her conscious objective was to seriously injure him, and he died as as the results of an act clearly dangerous to human life, and it caused a death.

That note about her reasonably being potentially startled enough if she opened the door and saw an unexpected person would probably make this qualify:

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.

So, second degree murder would be an appropriate charge. But that's affirmative defense after conviction for plain murder -- a high bar.

I think getting a warrant on recklessness was probably wisest at first, and a grand jury should decide if murder should be the heading charge. Then the jury can decide just what they feel her mindstate was.