Appeals court kicks back DA case against police chief
March 11, 2010 at 11 p.m.
Updated March 11, 2010 at 9:12 p.m.
The case between the Victoria district attorney and police chief will soon be back in court.
The 13th Court of Appeals sent back Stephen Tyler's appeal of a judge's dismissal of aggravated perjury charges against Victoria Police Chief Bruce Ure. The court made the ruling because Tyler failed to file a brief when filing for an appellate extension in December.
The case now goes back to the same Victoria trial court that ruled Tyler could not prosecute the case. A new hearing will determine whether the appeal will be fully dismissed or if it will go forward, according to the court order.
The DA's failure to file the brief suggests to Greg Cagel, Ure's attorney, how the trial court will rule.
"I've never seen a lawyer do that before," Cagel said. "I would tend to say him not doing anything at all may not be in his favor."
If dismissed by the trial court, the April 2009 decision made by Williams to dismiss the charges will still stand, Cagel said.
A possible dismissal will help resolve the two remaining aggravated perjury charges against Victoria Police Lt. Ralph Buentello and former city attorney David Smith, said Scot Courtney, Buentello's attorney. The two were indicted at the same time as the police chief.
The possibility to dismiss the appeal works in his client's favor, Courtney said.
"From our perspective, it gives us an opportunity to get back in the court and proceed forward," he said about why he wants the appeal dismissed. Buentello "has had this pending for quite some time now. He's anxious to resolve the case."
At the same time, Courtney said, he has never seen an appeal be pushed this far.
"I think it's very unorthodox for any party that has filed an appeal not to comply with the Texas Rules of Appellate Procedure unless they are intentionally trying to delay something," Courtney said of the DA.
Tyler and his attorney, Ruth Kollman, said they were delaying the brief because they were waiting for a decision in the Connecticut Supreme Court case George L. Rosado et al. vs. Bridgeport Roman Catholic Diocesan Corporation, Tyler said.
The judge's final decision in that case was to unseal documentation from lawsuits filed against priests, who were accused of sexually abusing children.
Most of the documents regarding the case, including motions and transcripts, were sealed.
Tyler wants those unsealed, he said.
"The court, in deciding that case, had some rulings which were supportive of the arguments concerning unsealing," Tyler said.
The Connecticut case showed there is no authority under the law or under case law for the sealing of a record like this, Tyler said.
"Because of that, we need to go back to the trial court to give the judge a chance at ruling with this new supreme court decision," he said.
Cagel does not believe the case Tyler will be citing is relevant to Ure's case, he said.
"I'm looking forward to the hearing just to listen to the explanation," he said.
A date for the new hearing has not yet been set.