Attorney blasts investigator for losing 911 tapes in murder trial

Jessica Priest By Jessica Priest

April 12, 2013 at 9:02 p.m.
Updated April 11, 2013 at 11:12 p.m.

The Duncan family first frantically dialed 911 about 10:30 p.m. May 21, 2011, but there's no concrete evidence to suggest they made any follow-up calls.

There had been a scuffle in rural Victoria County, they told dispatchers then, and a man had been shot in the knee.

"Does anyone know the man's name?" the dispatcher asked repeatedly as the phone was passed from person to person at a home in the 7400 block of San Antonio River Road.

Finally, Grady Dwayne Duncan, the 38-year-old man who admitted up front to firing the .40-caliber Smith & Wesson that would ultimately take a life, held the receiver.

"I don't know," he said, trailing off as someone, later identified as his friend Cecil Harris's voice was picked up in the background moments later.

"Shut up, dude," Harris said.

Then, the line went dead.

Defense attorney George Filley lambasted Tony Daniel, a Victoria County Sheriff's Office investigator, Friday for losing additional 911 tapes, which he said would have offered a clearer understanding as to why a night of drinking turned deadly.

That's when police say Duncan fatally shot Forrest Marks, who his family knew through church, in the abdomen.

Filley is representing Duncan, who is on trial charged with murder. He maintains Duncan acted in self-defense.

He said Marks, who was reported as being abusive and experiencing marital problems, threatened to kill Duncan's family for helping his wife leave him.

"It's an extremely, extremely important piece of evidence," Filley said, raising his voice in a crowded courtroom.

He explained to jurors that he'd only put two and two together this week that the additional tapes may be out there after listening to countless hours of deputy radio traffic that alluded to their existence.

"There was nothing to hide here," Daniel said, explaining how the tapes are automatically deleted after a time and that the 911 tape jurors heard was the only one the communication center gave him.

"Gosh there better not be," Filley replied.

Throughout the afternoon, Filley's line of questioning suggested Daniel gave his client the runaround. Daniel, who his colleagues nicknamed "Bulldog," said he never talked to Duncan directly at the scene and, when back at the sheriff's office, prioritized getting statements from witnesses as it's better to do so when the event is fresh on their mind.

Daniel first visited Duncan about 4:30 a.m. the next morning at the county jail. By then, Filley said, dashboard camera video would show no deputies had told Duncan he'd gone from being detained to being under arrest, although he probably caught on to it as soon as he was behind bars. By then, Duncan wanted a lawyer.

The state, meanwhile, has shown evidence throughout the week that it says proves Marks didn't present any danger. While witnesses have said Marks was fiddling with his pockets shortly before the shooting occurred, all the Travis County Medical Examiner's Office took from the pockets was a billfold, $39, a can of tobacco and a marijuana pipe.

Eli Garza, first assistant criminal district attorney, admitted into evidence a DNA analysis by the Texas Department of Public Safety in Corpus Christi that showed things may never have escalated physically in the moments leading up to the shooting. DPS found that the only blood on Duncan's clothing was a small spot of his own.

Marks also got rid of a Glock handgun years before his death. Witnesses have said they feared he was carrying that same Glock the night of the shooting, according to an area pawn shop database.

Other witnesses in the trial included Sheriff's Deputy Robert Ontiveros and Duncan's friend Cecil Harris. Harris gave an admittedly muddled account of the shooting, which he said he only witnessed the end of.

"After all that, I just started slamming down beers," Harris said.

Marks' father, Travis Marks, was the last witness called by the state. He told jurors his son was more than just a stick figure on a not-to-scale drawing of the crime scene.

"He was a very loving and caring person," Travis Marks said of his son, who after earning his GED installed kitchens at Sonic Drive-In fast-food restaurants across the United States and helped out at his family's ranch.

Marks said his son had struggled with alcoholism about 16 years and had threatened to hurt Travis Marks in the past, too.

"But had he ever carried those threats out?" Garza asked Travis Marks.

"No," Marks said, tearing up before he added that all appeared to be well with his son's marriage. "He was trying to take care of her (his wife) the best he could."

The trial will resume at 9:30 a.m. Monday before Judge Robert C. Cheshire. The defense is expected to present its case. Duncan may testify.



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