Why Some Facing Felony Charges in San Angelo Fail to Get Indicted

In 2015 San Angelo witnessed a rise in crime, and the 51^st and 119^th District Attorney’s Offices, the two that serve Tom Green County, on average prosecute 100 criminal cases per month. However, out of those numbers, not all felony cases make it to a grand jury. Thus far this year through Oct. 2015, 19 felony criminal cases failed to receive indictments in the San Angelo courts.

Out of those 19 cases, 119th Assistant D.A. Bryan Clayton had 10 cases that failed to go to a grand jury; Assistant D.A. Jason Ferguson had 4; 51st D.A. Allison Palmer, 3; Assistant D.A. John Best, 1; and Assistant D.A. Meagan White, 1. Outgoing 119th D.A. George McCrea did not refuse any

Assistant D.A. John Best, who announced his bid to run for the 119^th D.A. spot in March 2016, said the D.A.’s Office prosecutes 100 cases a month on average, but that number fluctuates. It can fluctuate broadly, especially from January – March where the numbers were lower. Some months may see 60 prosecutions, and other months, 120 – 130. Since he started serving the San Angelo area, the numbers have remained consistent.

“There are all kinds of reasons why cases don’t go to a grand jury,” Best said. “There could be issues associated with the stop or the validity of the stop. We may also have a situation where the Federal Government is prosecuting the case, so we don’t pursue it on the state level.”

In his one particular case, Margarita R. Martinez, 28, was charged with Prohibited Substance/Item in a Correctional Facility, a 3^rd Degree Felony. According to the complaint, on Sept. 11, 2015, at approximately 3:19 p.m., a trooper with the Department of Public Safety, Matthew Walts, made a traffic stop on US 87 north near mile marker 446 in Water Valley for Use of Vision Reducing Matter on Windows-Glass Coating. The front driver window tint was at 4 percent, the complaint stated.

During the investigation, Walts stated there were signs of criminal activity, and the driver with whom  Martinez was a passenger refused to consent to a search of the vehicle. K-9 Trooper Billy Pierce arrived to assist in the investigation, and due to the signs of criminal activity, Pierce conducted a “free air sniff” with his K-9.

Through the investigation, Martinez was found to have a warrant out of Lubbock for her arrest in Non-payment of Child Support, so she was arrested and booked into the Tom Green County Jail. While at the jail, a female jailer located approximately 5 grams of marijuana that Martinez had placed "inside her shorts in the crotch area," which landed her the additional charge.

Based on information from the case, Best rejected/refused to move it forward and marked it as Nolle Prosequi, which means “will no longer prosecute.” Best explained that under normal circumstances, a person will be prosecuted if the defendant had less than 1 gram on his/her person when in the jail. If that amount is higher, Best said he will just prosecute for the drug case rather than the Prohibited Substance/Item in Correctional Facility.

As of yet, that hasn’t happened, but when more information is needed to prosecute a case, Best and most of the D.A.s will ask the arresting agencies for more thorough information. The type of information that is necessary to stick in court is required.

“I can’t speak for other D.A.s, but we have the burden of proof,” Best said. “If we go to trial, we have to prove our case beyond a reasonable doubt in front of jury of 12 citizens from the community who are going to hear all the evidence.”

Best also said he feels the 51^st and 119^th D.A.s and Assistant D.A.s are aggressive in taking and prosecuting cases, but if they have one with questionable evidence, the burden of proof is the determining factor in not pursuing.

Here are some examples out of those 19 cases where those determining factors affected the outcome:

• Charge: Harassment of a Public Servant, 119^th, D.A. Bryan Clayton—Rejected/Refused because victim made request to drop the charge.
• Charge: Possession of a Controlled Substance less than 1 gram, 119^th, D. A. Bryan Clayton—Rejected/Refused because the defendant had one pill only, and the suspect’s employer provided a “viable defense.”
• Charge: Indecency w/Child Sexual Contact, 119^th, D.A. Bryan Clayton—Rejected/Refused because of insufficient evidence. Got confession from perpetrator, who was later indicted in Oct. 2015.
• Charge: Criminal Mischief IMP/INT Pub Serv less than $20,000, 51^st, Asst. D.A. Ferguson—Rejected/Refused because case was transferred to a county attorney.
• Charge: Online Solicitation of Minor, 119^th, Asst. D.A. Ferguson—Rejected/Refused because case was transferred to a county attorney.
• Charge: Possession of Controlled Substance less than 1 gram, 51^st, D.A. Allison Palmer—Rejected/Refused because defendant completed drug court.
• Charge: Tamper/Fabricate Physical Evidence w/Intent to Impair, 51^st, D.A. Allison Palmer—Rejected/Refused because case was referred to a county attorney for possession of marijuana.
• Charge: Burglary Habitation/Intend Other Felony, 51^st, D.A. Allison Palmer—Rejected/Refused because the charges were refused.

Overall, these cases had a definitive reason for not moving forward to a grand jury; however, some of the other cases weren’t as clear as the ones above.

For instance, in an Online Solicitation Minor case submitted to the 119^th, Assist. D.A. Ferguson rejected/refused the case without providing a specific reason. According to the complaint, CID agent Roy Basham with the Texas Department of Public Safety was posing undercover on Dec. 12, 2014 as a 14-year-old girl online. Jose Antonio Hernandez, 25, agreed and attempted to meet Basham’s persona even after he informed Hernandez the persona was 14 years of age. Hernandez described to Agent Basham what explicit sexual acts he wanted to perform with Basham’s persona. In a post arrest, Hernandez confessed to sending each sexually explicit email, and said he knew the girl he was attempting to meet was 14. He said his plan was to take “the girl” to a friend’s residence where he planned to have sexual intercourse.

In another case against Otis Ray Woodfin, Jr., 30, a man with a long criminal record, he was arrested on Apr. 24, 2015 for Assaulting a Public Servant. According to the complaint, Woodfin Jr. struck San Angelo Police Officer Tina S. Burks on her “pelvis area causing pain and injury.” Burks was assisting Officer C. Barker in a criminal trespass case involving the defendant. Woodfin attempted to walk away from Officer Barker, and he refused to both verbal commands and physical restraint, so Burks began to assist to try and gain compliance. During the struggle, Woodfin kicked the officer. Burks had redness and bruising in the area. Despite his record and the charge, D.A. Bryan Clayton with 119^th, rejected/refused the case and sent it to the County Attorney’s Office for a Class A Misdemeanor.

In two additional Clayton cases involving Michelle Lenee Perez and David L. McMullan, these two were also rejected/refused. Perez is another re-offender who was charged with Theft of Property and Previous Convictions. She was charged with stealing cars from the All American Honda/Dodge dealership, and McMullan was charged with Arson Intended to Damage a Habitat/Place of Worship. He set the fire at 1869 Colorado Avenue, which is a one-story duplex residence.

When the San Angelo Fire Department arrived, they observed a fire on the left side of the front porch with “flame impinging on the porch and threatening the residence.” Firefighters had McMullan put out the flames. He told them he was starting a barbecue, but Captain Harrison noted the materials in the area of the fire resembled clothing and a book. Harrison also learned from SAPD that McMullan started a fire in the yard on a previous occasion.

Fire Marshal Ross Coleman said in cases like this, if the fire is on the property where the home is located and within a distance that will cause damage, his agency will charge defendants with Felony Arson. However, Clayton rejected and refused to proceed to a grand jury in this case and sent it to a county attorney for review of a misdemeanor. If the county attorney could find something was actually destroyed or damaged, this might be a city ordinance violation.

“District attorneys of course have prosecutorial discretion of course,” Coleman said. “They can choose to take or not to take whatever cases they choose.”

With that being said, Coleman said with Clayton pleading the case down to a misdemeanor charge, it would become a criminal mischief charge instead, which will be based on damage assessment.

When asked for a more detailed explanation into these cases, Bryan Clayton said, “Those are decisions we make every day. This is a normal course of business.”

In regards to the case against Perez, the re-offender, he said, “We have a lot of pending cases against her and one more is not going to make a difference. She’s going to go back to the pen. She’s got a lot of pending cases against her.”

Clayton then went on to explain that there are hundreds of cases that come in to his office every year.

“I read and review at least half of them that come in here because half of them come through my grand jury. I review them,” he stated. “If they look like they’re solid cases, I’m going to present them. Some get no billed; some get true billed. A lot of them that get refused, even the police don’t think they are any good; but there are many many many many reasons that a case might not be presented to the grand jury and refused.”

Clayton also said if anyone has a problem with a refusal, they can contact him personally.

“Now, I’m not going to talk to every damn person in the general public, but if there’s a police officer that actually did work on a case and has a question, all they have to do is call me and we’ll talk about it. It doesn’t mean it’s going to be accepted, but I’m glad to talk to them,” he added.

Speaking of the police, SAPD Chief of Police Tim Vasquez said his department is in charge of working many of the cases and putting the information together for the D.A.’s office. The D.A.’s office then determines what goes to the grand jury and what doesn’t.

Sometimes, that case, as stated, requires more investigation or information for the D.A.’s office to accept the case. For instance, there was more investigative work to be accomplished in the Indecency w/Child Sexual Contact originally presented to Clayton on May 5, 2015. Vasquez said more evidence was needed, so his officers went back and got the confession needed to indict the case, which occurred in October. The defendant, Alvino M. Ramos, 35, has a history of  sexual violence that dates back to 2004.

Vasquez said overall, the D.A.s and Assistant D.A.s have always been the type where they will say they need more for the prosecution, and the officers will go work on it.

“We also know that we present cases that do lack some evidence and we will always go back to collect more evidence if needed,” he added.

However, there are times when cases fail to proceed forward, and SAPD officials don’t know why; and when cases fail to go to a grand jury, Vasquez said the public’s frustration is usually pointed at SAPD.

“We don’t have a choice of what goes to court and what doesn’t go to court,” Vasquez explained. “All we do is work the case. We present the case to the D.A.’s office, and the D.A.’s office then makes the determination if [there’s] enough evidence to take it to grand jury.”

Additionally, SAPD has to deal with the same criminals over and over again when they fail to get indicted, which is why the officers work hard at providing solid cases.

Vasquez stated, “The process can be frustrating at times.”

--

Correction: ADA Jason Ferguson had four (4) unprosecuted cases and we originally reported that he had three (3). The Ferguson's numbers, and the overall total number of cases, 19 as opposed to 18, has been corrected in the story above.