Special prosecutor drops cases against city officials

Gabe Semenza

April 13, 2011 at 8:03 p.m.
Updated April 12, 2011 at 11:13 p.m.

A special outside prosecutor on Wednesday ended a more than three-year effort to try a handful of Victoria city officials.

A little after 9 a.m., San Antonio-based Terry McDonald filed a motion to dismiss the remaining aggravated perjury cases against Ralph Buentello, a police lieutenant, and David Smith, the former city attorney.

Moments later, District Judge Stephen Williams signed the motions, signifying their official dismissal.

"This was a long, unnecessary and expensive chapter in Victoria's history," Victoria Mayor Will Armstrong said.

McDonald's motion asserted District Attorney Steve Tyler failed to provide him with evidence needed in the prosecution. McDonald also suggested the charges were unjustified, the motion shows.

Tyler, however, puts the onus back on McDonald, the special prosecutor. Because Tyler was removed from these cases, helping McDonald could have placed him in contempt of court, he said.

In the end, the cases closed in the same fashion as they began: with a complex story line full of twists and accusations.

Buentello and Smith are two of four public officials who were indicted in early 2008 by a Tyler-led grand jury, but whose cases were later dismissed.

In addition to Smith and Buentello, the same Tyler-led grand jury also indicted Victoria Mayor Will Armstrong and Assistant City Manager Bruce Ure, then police chief.

"The last three years have been embarrassing and very disturbing to my life and my family," Smith, the former city attorney, said. "I'm just glad the truth came out. The whole thing was a terrible waste of time and public money, as far as what Tyler did."

Tyler initially accused Smith, Buentello, Armstrong and Ure of leaking confidential information, interfering with an official case and conspiring against him. Tyler accused Smith, Buentello and Ure of also lying under oath in October 2007.

Judges later dropped all charges against Armstrong and Ure, and most of those levied against Buentello and Smith. The aggravated perjury charges, however, remained.


In April 2009, a judge removed Tyler from the Smith and Buentello cases because the district attorney could not be both the victim and prosecutor. Tyler, after all, claimed the men had conspired against him and interfered with an investigation into his chief of staff.

After months of delays and legal formalities, Williams, the district judge, appointed McDonald as special prosecutor in the remaining cases against Buentello and Smith.

For months, McDonald has asked Tyler for evidence so he could decide whether to prosecute or drop the cases, he said.

McDonald requested a summary report detailing how Smith and Buentello's actions affected the district attorney's investigation, he said.

To prove aggravated perjury, a prosecutor must show a statement made under oath that was deliberately false and that the statement was material to an investigation, McDonald said.

"You need evidence to prosecute somebody. I got zip," he said by telephone Wednesday.

In October 2007, Tyler hauled public officials before the grand jury that had days before indicted his chief of staff, former Victoria County Sheriff Michael Ratcliff. Ratcliff was indicted on charges of aggravated sexual assault, but he later agreed to a perjury plea deal.

Tyler contended Smith, Buentello, Ure and Armstrong interfered with the Ratcliff investigation. The city officials argued they were concerned with Tyler's role in the Ratcliff case.

"How in God's name - if they perjured themselves - did it affect an investigation that had already resulted in an indictment?" McDonald said. "I have no evidence they affected the investigation. If Tyler thought they interfered with his investigation, why didn't he charge them with obstruction of justice?"

McDonald said he wonders why Tyler declined to return his phone calls and chose not to turn over the evidence he allegedly has.

McDonald in recent weeks even contacted the Advocate about his frustrations. The newspaper published a story noting McDonald still awaited the evidence Tyler has said he possesses.

"Tyler hasn't even called me today complaining that I dismissed the cases," McDonald said. "I don't think he's upset."


Tyler on Wednesday, via his secretary, cited a hectic schedule as he prepares for trial, and thus declined telephone and in-person interviews. His secretary asked that all questions be emailed to him.

Tyler wrote in an email that he did not return McDonald's phone calls or provide the requested summary report because a judge forbade him from doing so. Tyler also emailed an 18-page transcript of an April 2009 hearing in which Williams dismissed him from the cases.

"If you review the attached transcript, I am following the letter and the spirit of Judge Williams' ruling removing me and my office from this case ..." Tyler wrote. "In that transcript, Judge Williams expressly ruled that he wanted an independent 'fresh set of eyes' to review these matters."

To have provided McDonald with the summary report, or otherwise helped the special prosecutor, could have resulted in Tyler being held in contempt of court, the district attorney wrote.

"Mr. McDonald promised me that he would obtain a letter releasing me from the portions of those rulings and order that I felt precluded my involvement," Tyler wrote. "Mr. McDonald never obtained and/or provided me with such a document from Judge Williams."


McDonald at first laughed at Tyler's contention, and then he became angry.

"As far as obtaining a court ruling from Judge Williams, I certainly did not have that conversation with Tyler, nor would have I seen any need for it," McDonald said. "He was removed from prosecuting the case, but he was still a witness. A judge cannot direct somebody from not being a witness in a case."

McDonald then faxed to the Advocate a judge's order dated July 26, 2010 - signed about 15 months after the hearing in which Tyler was removed from the case.

"It is ordered that (Tyler) shall deliver to Terry McDonald, attorney pro tem, all files and materials relevant to this case within 10 days from the date of this order," the judge's order notes.

To McDonald's contentions and the order, Tyler, again via email, said, "This is a misdirection by Mr. McDonald. Providing materials is different from reviewing a case, producing and providing summaries and analysis of witnesses and evidence. Mr. McDonald asked me to violate the expressed ruling of Judge Williams."

The district attorney added McDonald acknowledged to him that he knew any involvement by Tyler could place him in contempt of court.

"I also told him the court had a complete copy of the file maintained by the district clerk. Mr. McDonald acknowledged this and indicated he had what he needed," Tyler wrote. "He never asked for anything - or documents - but only that I prepare and send him the witness summaries. Mr. McDonald promised me he would obtain a written document allowing me to work on the case for him. I told him I would await that document before acting."


Regardless of this back and forth, the cases are closed.

Thomas Gwosdz, Victoria's city attorney, said he has not yet considered seeking recourse - such as monetary repayment or prosecutorial review - and that such decisions must come from the city council. The city spent $291,802.39 in defense of the four public officials, city records show.

Buentello, meanwhile, did not return calls to his cell phone. His lawyer, Scot Courtney, said that recourse - such as a wrongful prosecution lawsuit - is tough to win.

"Prosecutors are largely cloaked in immunity from civil suits," Courtney said.

Ure said he still struggles to understand the motivation behind Tyler's efforts to punish him and the other men.

"Judicial power and authority should be executed with a servant heart," Ure added by phone. "This clearly wasn't done here."



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