One of Stephen Tyler’s last acts as the Victoria County District Attorney was to help get a criminal case against a top county employee dismissed.
Tyler also handed the incoming DA, Constance Filley Johnson, a political hot potato on Friday by recommending, but not issuing, an arrest warrant for the sheriff’s office investigator assigned to the case. The outgoing prosecutor claimed the sheriff’s investigator was guilty of official oppression.
Filley Johnson, who will be sworn in Jan. 1, declined to comment. A Victoria defense attorney, though, said he had never heard of anything like Friday’s proceedings and questioned Tyler’s actions.
All of Victoria’s judges recused themselves from Friday’s hearing because of conflicts of interest. Instead, Sid Harle, judge of the 4th administrative district in San Antonio, presided over the hearing and dismissed the case.
Dec. 19, the county’s administrative services director, Joyce Cavazos Dean, was arrested by sheriff’s deputies on a warrant charging her with theft by a public servant greater than $100.
Wednesday, her attorney, Micah Hatley, filed what’s called a “writ of habeas corpus.”
Defendants may use this recourse to ask a judge to review whether they have been unlawfully detained or imprisoned.
Thursday, Hatley had Lt. John Davis, who was assigned to investigate Dean, and his superiors, Capt. Michael Behrends and Chief Deputy Roy Boyd, served with a subpoena to testify in a hearing.
Only Behrends showed up for the hearing Friday morning. He said Davis was ill and Boyd was out of town.
Although Hatley requested the hearing, it was Tyler who spent the most time questioning Behrends.
And the prosecutor’s questions focused on those typically asked by a defense attorney: whether the sheriff’s investigator’s probable cause statement for the arrest and search warrants was misleading. District Judge Bobby Bell reviewed and signed the warrants.
Under Tyler’s questioning, Behrends testified the probable cause statement relied upon a Texas Ranger’s report Tyler had received five years earlier and had declined to pursue. In public statements after deputies arrested Dean, Tyler said he declined to prosecute because the Ranger’s case lacked evidence and because the statute of limitations had run out. Tyler pressed Behrends to admit Sheriff T. Michael O’Connor pursued this case against Dean maliciously because of three recent disagreements between the sheriff and Dean.
“Somebody tried to give CPR to this old, tired case and bring it back to life in that agency who may or may not have a bias for the reasons I articulated; fair enough?” Tyler asked.
“Fair enough,” Behrends said, “but I don’t know.”
Neither O’Connor nor Boyd could be reached for comment Friday afternoon.
Issues with the DA
After the hearing, the Victoria Advocate asked for reaction to the unusual case. The newspaper also asked how common it was for a prosecutor to side with a defense attorney on anything other than a procedural court matter.
Tyler said during the hearing that the statute of limitations for Dean’s alleged crimes had run out by the time the ranger submitted his report in 2013 to the district attorney.
But Sgt. Ruben San Miguel, of the Texas Department of Public Safety, under which the Texas Rangers work, said the agency’s investigators do not submit reports of alleged crimes to DAs when the statute of limitations for those alleged crimes has run out. But San Miguel declined to comment specifically about this case.
Since taking office in 2007, Tyler has had some high-profile run-ins with law enforcement, including indicting Victoria’s former police chief and a lieutenant. A judge later dismissed those cases.
Victoria defense attorney Jim Beeler questioned why Tyler did not take the Ranger’s case in 2013 to a grand jury rather than keep it on his desk for almost three years before dismissing it. Beeler said he knew only what he had read about the case but said he thought how Tyler handled it was unusual.
“There’s so much of Mr. Tyler wrapped up in this that it’s a real issue about what are the facts,” Beeler said.
Beeler also defended the sheriff.
“I don’t think it was the sheriff himself going after individuals,” Beeler said. “We’ve had cases in the past where investigators didn’t exactly follow the law and withheld or fabricated evidence, and when those people were found out by defense attorneys like myself, they were pointed out to the court, and those individuals went away.”
He also said Tyler, as an outgoing DA with significant conflicts of interest concerning the case, should not have even attended Friday’s hearing. He should have turned the case over to incoming District Attorney Constance Filley Johnson, Beeler said.
“For him to stand in and say, ‘Hey, I side with the defense attorney,’ – that’s for the new DA to decide in my opinion,” Beeler said.
Through his questioning Friday, Tyler laid out the issues he had with the case.
First, he said, records show Dean changed her son’s time card to show he’d worked an additional three hours. This would be an extra $39 on her son’s paycheck, which is less than, not greater than, $100 as Davis stated in court documents.
Second, Tyler said, there was nothing in the probable cause statement that told Bell that Dean knew her son hadn’t worked those three hours. To prove theft, Tyler said, Davis would have had to establish that Dean knew that.
Third, Tyler said, Davis failed to explain to Bell why he needed to seize Dean’s cellphone and county computer. Tyler said if Dean had knowingly and improperly changed the time card as alleged in 2010, there likely would no longer be evidence of that on either device.
Fourth, he said, Davis wrote that a Texas Ranger had interviewed a witness about this this year when the interview actually took place years ago.
Under questioning, Capt. Behrends said that was likely a typographical error.
Judge Bell declined to comment Friday because he said the case’s dismissal could be appealed.
Although Dean’s Dec. 19 arrest did not concern this, Tyler addressed other allegations made about Dean that came up in the Texas Ranger’s 2013 report. One was that she made a county employee repair her son’s apartment while that employee was on the clock. According to the report, Tyler said, that county employee told the ranger he had clocked out before making the repairs.
Tyler also questioned the reason for Davis’ and Boyd’s absence Friday when both have county-owned vehicles and a general requirement to be on call for the sheriff.
“There’s more evidence for abuse of official capacity or official oppression for Investigator Davis, a subordinate of yours, than there is for Mrs. Dean, am I right? Would that not be a fair estimation of the evidence as it stands now?” Tyler asked.
“I don’t know,” Behrends said. “I can see where you might come to that conclusion.”
Tyler described Dean’s arrest as retribution for disputes the sheriff’s office had with her and the commissioners court. County Judge Ben Zeller was at the hearing Friday, taking notes, and, by the end of the work day, he had decided to take Dean off paid administrative leave. She was placed on leave after her arrest.
“As of Monday morning, she will be back on her normal work schedule,” he said, “but I know she has PTO, so she has the option, and frankly, I wouldn’t blame her if she took PTO on Monday.”
Zeller also talked about some of the disagreements Tyler said Dean and the sheriff had.
One is whether the county should continue using the University of Texas Medical Branch in the jail infirmary. Zeller said UTMB has proposed a price increase of about $225,000 to its contract with the county that would take effect in March.
Another disagreement Tyler identified is also related to the jail. Earlier this month, the state inspected it and found it had fallen out of compliance. Tyler said during Friday’s hearing that the sheriff had told the state it had fallen out of compliance because the commissioners had been “stingy” with resources.
After the hearing, Zeller said, “I believe that has been his (the sheriff’s) sentiment. It’s my impression that that’s his sentiment.”
Since falling out of compliance, Zeller said, the county has tested mold growing in the jail and found it not to be harmful. It’s also replaced five HVAC units and installed a dehumidification system. Zeller said he started Wednesday an internal review of Dean with Sheila Gladstone, an attorney the county has used for personnel matters before, but that would likely wrap up soon. He also said a Commissioners Court meeting scheduled for Monday could be canceled if the sheriff’s office returned Dean’s county computer.
In dismissing the case, Judge Harle also ordered the sheriff’s office to return the computer and any other items seized related to Dean within 72 hours.
“The property that was taken or the things that it gave access to include attorney-client privileged information, county employees’ medical information, including disability and workplace accommodation issues,” Zeller said. “We have a duty to protect that information regardless of who may be in possession of it.”
Commissioner Gary Burns said he thought Monday’s meeting should go forward because he received the Texas Ranger’s 2013 report about Dean for the first time Thursday and still had questions. Burns, first elected in 2004, was a commissioner when the criminal case against Dean originated.
“I’m not saying anybody is guilty, innocent or whatever,” Burns said, “but it looks kind of bad if we don’t do our due diligence, and I’m really surprised that he would try to call off that meeting.”