An Austin man has avoided going to prison by claiming the man he stabbed to death had come onto him.

James Miller will serve 10 years probation after being convicted of criminally negligent homicide in the killing his neighbor Daniel Spencer in September 2015.

The two men met over music: Miller, a former Austin police employee, took up the guitar after he retired and the men would meet to drink at a nearby bar and play together at Spencer’s East Austin home. The night of the stabbing, Miller testified, Spencer became angry when he spurned his sexual advances. He said Spencer moved toward him in an aggressive manner while brandishing a drinking glass.

Miller, age 69 and 5' 4", was eight inches shorter and 37 years older than Spencer. “He had height advantage over me, arm length over me, youth over me,” he said. “I felt he was going to hurt me.” Miller pulled out a knife and stabbed Spencer twice before turning himself in.

The two men played for several hours before Miller says he left and headed toward his truck. But when he realized he forgot his glasses and returned to the house, Spencer allegedly reached in for a kiss. “Hold it, I’m not a gay person,” Miller he allegedly told Spencer.

Prosecutors argued that because the victim didn't touch Miller or even announce an intention to hurt him, the idea that deadly force was necessary was “ludicrous.” The defendant did not have “so much as a scratch on him,” said prosecutor Matthew Foye.

After initially reaching an impasse, the jury showed mercy and gave Miller probation. While Judge Brad Urrutia was required to abide by their decision, he tacked on six months jail time, as well as 100 hours of community service, and almost $11,000 in restitution to Spencer's family. Miller will also be required to wear a portable alcohol monitoring device for at least a year.

Foye said the jury's rejection of Miller's self-defense claim "establishes that Daniel Spencer was a victim of a senseless killing by the defendant and he did not do anything to bring this upon himself."

Defense attorney Charlie Baird told KXAN he was disappointed Miller was found guilty at all: "We thought that he should have been acquitted on the basis of self-defense." But that by giving his client probation, the jury agreed Miller "was no threat to the community or to society at large."

Currently, 48 states allow the use of a gay-panic or trans-panic defense, claiming a defendant's actions were fueled by a fear they would sexually assaulted by an LGBT person. When successful it's most often been used to obtain lesser charges or a reduced sentence.

Lawyers for Aaron McKinney tried unsuccessfully to use a gay-panic defense when he was tried for murdering Matthew Shepard. After Brandon McInerney claimed he shot and killed 15-year-old Larry King because King asked him to be his valentine, it resulted in a hung jury.

To date, only Illinois and California outlaw the gay panic defense. The American Bar Association has urged federal, state, and local governments to follow suit.