Discrepancy in Arrest Report Leads to Investigation of APD Officer

We read stories about this type of thing on a regular basis. The person who is arrested complains that he or she was manhandled or otherwise abused by a police officer or officers, and the response is that the force was necessary in light of the fact that the suspect was “resisting arrest.”

This past May, APD officer Jermaine Hopkins was responding to a call in Austin, and arrested several people for public intoxication. During the course of handcuffing one of the suspects, Vanessa Price began to approach the officer. Officer Hopkins told the woman not to approach, then told her she was being detained, and ordered her to sit on the curb. When Ms. Price called her husband on her cell phone, the officer told her to hang up. When she did not comply, Hopkins grabbed her wrist, and she was put on the ground to be handcuffed and was treated fairly roughly. She was arrested for interfering with public duties, and then for resisting her arrest.

Officer Hopkins was eventually suspended (with pay), and assigned to administrative duties. But he remains suspended, and the reason is apparently not so much that he overreacted to a situation that posed no threat to himself or to his duties, but rather because his account of the situation differs markedly from both eyewitness accounts and the video footage from his dashcam.

From a legal perspective, the case hinges on the claim by the officer that Ms. Price was interfering with his duties as a police officer. This in turn, is dependent upon the alleged “approach” by Price when Hopkins was handcuffing one of those arrested for public intoxication. What the dashcam apparently shows, and what the witnesses report, is that Ms. Price never came closer than about thirty feet from the officer. This completely undermines the officer’s assertion of interference, and apparently differs from his statements in the case and to his superiors.

The internal affairs investigation concluded that Officer Hopkins’ story just doesn’t add up. As for the next step in this case, we’ll have to wait to see what the APD will do. We’re also interested in seeing the dashcam footage, which thus far the department has refused to release.

The Law Office of Matthew Shrum, P.L.L.C.
808 West Ave.
Austin, TX 78701
(512) 447-2323

Austin Property Crime Statistics

We see figures concerning crime that come from a variety of sources. Those sources include the Austin PD, the Texas Department of Public Safety, as well as the Federal Bureau of Investigation. When you take the numbers related to property crimes from all the official sources available, there are some interesting, and perhaps startling, conclusions that can be drawn. They include the following:

  • There are about 4,000 property crimes committed in Austin each month. Different agencies, and different political subdivisions, define their categories differently. The property crimes include theft (including motor vehicle theft), burglary and arson. They do not include robbery, which is classified as a property crime under the Texas Penal Code, but is considered to be a violent crime.
  • The Austin Police Department solves less than one in ten property crime cases. The actual rate of 8% lags well behind the national average, but is an improvement over the 5% clearance rate in Austin just five years ago.
  • When police collect evidence after a reported burglary, fingerprint data is sent for comparison. One police official is quoted as saying that it often takes about six months to get the information back, and sometimes it takes as much as two years.

Some of the problems leading to the low clearance rate on these crimes may be attributed to lab work and other factors. Other countries apparently do not have as large a gap between the commission of crimes and the solve rate. In England, for example, the clearance rate for property crimes is 23%, higher than our national average, and three times the rate in Austin.

We don’t have a crystal ball which allows us to determine what changes might improve the situation. On the other hand, the low rate of crimes solved is not a new phenomenon in Austin. It’s been around for years. And the call, as usual from the APD, is for more money and more people. Maybe that’s one way of trying to deal with the issue, but in these times of shrinking budgets and competing resources, we can’t help but note that marijuana arrests are at an all-time high. Could it be that some of the many billions allocated to the war on drugs, particularly marijuana, might be better spent elsewhere?

The Law Office of Matthew Shrum, P.L.L.C.
808 West Ave.
Austin, TX 78701
(512) 447-2323

Woman Charged with False Police Report in Claim of Sexual Assault

It began with a report by Georgetown resident Delisha Thomas. Ms. Thomas reported to police a bizarre and disturbing sequence of events that allegedly took place last month and began in North Austin, including being kidnapped for two days, being sexually assaulted, having bleach poured on her, and being locked in the trunk of her car. An investigation by law enforcement took place, and police now say that the entire episode was a fabrication. As a result, police have now charged the woman with filing a false police report.

The authorities claim that after the crimes were reported by the woman, their investigation of her allegations kept hitting what they described as “roadblocks.” According to the Georgetown PD, that investigation was extensive, and included medical examinations and a search using a police helicopter. In addition, nearby Southwestern University was placed on lockdown for a time, while police looked for the kidnapper in campus buildings.

Ultimately, the lack of any progress in following up the woman’s claims led the investigators to consider the possibility that the entire sequence of events was fabricated. At that point, the woman’s whereabouts during the two day period, during which she said she was being held against her will, was recreated through the use of cell phone records, receipts, and video footage from a security camera. These records place the woman at various locations, including a grocery store and a McDonald’s, during the course of the two days. Finally, the police say that after being confronted with the evidence, the woman confessed to making up the story.

At this point, Ms. Thomas is charged only with filing a false report under section 37.08 of the Texas Penal Code. That section provides that it is an offense (a class B misdemeanor) to make a false statement to police that is material to a criminal investigation, if that statement is made knowingly, with the intent to deceive. While it may appear that a class B misdemeanor is not a very serious charge, the woman faces up to six months in jail. She can also be fined up to $2,000, if she is convicted.

The Law Office of Matthew Shrum, P.L.L.C.
808 West Ave.
Austin, TX 78701
(512) 447-2323

Misdemeanor Plea in Fatal Car Crash

When a person causes the death of someone else, most people tend to assume that any criminal charge will be a felony. After all, murder, manslaughter, criminally negligent homicide, and intoxication manslaughter are all felonies of one degree or another. So when a plea agreement is struck that provides for a guilty plea to a misdemeanor in a death case, we take notice, and a report on a Travis County plea last week therefore caught our attention.

The case arose out of an accident about a year and a half ago. Police say that the driver of a car, Hernan Garcia-Segura, ran a stop sign and struck a tanker truck carrying over three tons of gasoline. The truck flipped onto its side, the gasoline caught fire, and the driver of the truck was killed. After the incident, a grand jury handed down an indictment charging Garcia-Segura with criminally negligent homicide, a state jail felony. Apparently, it was thought that running the stop sign did not amount to reckless behavior; had he been accused of recklessly causing the death, the original charge likely would have been manslaughter, a second degree felony.

It came as something of a surprise to many people when a bargain was struck which permitted a guilty plea to a misdemeanor – reckless driving – along with a sentence of two years’ deferred adjudication, 100 hours of community service, and attendance at a defensive driving course.

The question becomes, then, what was it about this case that was different enough to cause the extreme reduction in the level of the charge against the defendant. We think there were several issues that contributed to the result:

  • The defendant claimed in the police report that he was struck by the tanker, and not the other way around, and a defense expert was prepared to testify that Garcia-Segura was not speeding prior to the collision. We don’t know for sure, but this may have created proof issues for the prosecutor.
  • The defendant was driving with his mother in the car, and was on his way to pick up his sister. Perhaps this is not a compelling fact, but it certainly colors the overall picture.
  • There was no allegation here that Garcia-Segura had been drinking prior to the crash, that he had been under the influence of alcohol or drugs, or that there was any other behavior (such as texting) apart from careless driving involved in the collision.
  • But probably the most important factor was the position taken by the deceased man’s wife, who told the court she had forgiven Garcia-Segura for his actions.

Obviously, a number of factors saved the defendant from the possibility of a jail term of up to two years.

The Law Office of Matthew Shrum, P.L.L.C.
808 West Ave.
Austin, TX 78701
(512) 447-2323

Drug Bust and Endangerment Charges after Traffic Stop

When we hear about traffic stops, we may think of the possibility of speeding tickets, a citation for running a red light or a stop sign, or maybe a DWI. But the fact is that traffic stops often lead to much more serious allegations. A case in point involves a recent incident that took place in Waco, Texas. And it led to some very serious charges.

Police stopped a Ford Mustang traveling on North 20th just before midnight last week. The report does not indicate the reason for the initial stop, but something was apparently noticed during the course of the stop concerning the car’s VIN (vehicle identification number) that police say made them suspicious. This led to a search of the vehicle. They say they found two things during the course of the search: (1) a half pound of cocaine; and (2) the suspect’s three year old son. The driver was arrested and charged with drug possession and endangerment. In this case, the potential sentence in the event of a conviction is lengthy indeed:

  • Cocaine is a Schedule I drug. This means that the government believes it has a high potential for abuse, and no accepted medical treatment value. Possession of 200 grams or more, but less than 400 grams (a half pound, as alleged in this case, is just over 226 grams), is a first degree felony. First degree felonies carry a potential sentence of between five years and 99 years, or life in prison.
  • Child endangerment is covered under section 22.041 of the Penal Code. Knowingly placing a child under the age of 15 in imminent danger of death or injury is likely to be, in this case, a state jail felony. Police say the charge is based upon the child’s proximity to the drugs they found in the vehicle.

While this drug bust appears to have happened at least in part by chance, in fact it is not all that unusual. The truth is that routine traffic stops regularly lead to drug busts, some of them massive. And many of these incidents take place far from border crossings or other areas where you might be more inclined to expect the presence of drugs or drug trafficking.

The Law Office of Matthew Shrum, P.L.L.C.
808 West Ave.
Austin, TX 78701
(512) 447-2323

Leaving a Child Unattended in a Car – What’s the Charge?

A recent report concerns an incident in Pflugerville, Texas, in which a man allegedly left his child in a locked car while he went into a building around lunchtime to renew his Texas identification card. The girl was just a year old, and when another person pulled up beside the car and saw the child, she notified a customer service rep at the building, who then notified a trooper from the Department of Public Safety. The father of child could not be immediately located, so the trooper used his tools, and gained access to the car to remove the child.

Police say that the father did not emerge from the building for more than half an hour after he had parked, and when he did appear, he was arrested.

So what is the offense? Under section 22.10 of the Texas Penal Code, entitled “Leaving a Child in a Vehicle”, it is a class C misdemeanor to leave a child under the age of seven in a vehicle for longer than five minutes without the presence in the vehicle of an individual 14 years or older. An offense, to be sure, but the maximum penalty would be just a fine of up to $500. The report we read indicates, however, that after the arrest, bail was set at $8,000. So what’s going on in the case?

While section 22.10 may be the charge in some cases, leaving a young child unattended in a vehicle may also lead to a charge of child endangerment or child abandonment under section 22.041, which is a felony. Interestingly, there are no clear guidelines on where “leaving a child in a vehicle” becomes child endangerment or abandonment. There is certainly a good deal of prosecutorial discretion that can be exercised. And the surrounding circumstances will definitely come into play. Those circumstances can include the age of the child, the weather outside, where and for how long the child was left alone, and so on.

We obviously don’t know how the Pflugerville case will turn out. But absent additional facts, it’s quite possible that this case may result in a plea of guilty to a lesser charge.

The Law Office of Matthew Shrum, P.L.L.C.
808 West Ave.
Austin, TX 78701
(512) 447-2323

Consequences of Violating Bail Conditions

If you’ve been granted a release on bail, have posted bail, and are now walking the streets, be careful what you do while your case proceeds through the court system. Whatever the conditions of your bail may be, a violation of one or more of them can lead to serious consequences. An example was reported last week involving Linda Woodman, who was arrested in February 2012 after being involved in a fatal car crash outside the Wheatsville Food Co-op on Guadalupe Street that took the life of one man, and left a woman seriously injured. The two were pedestrians on the sidewalk.

Police say that Woodman, a registered nurse, showed signs of intoxication after the collision; they also say she told them she had just been released from the hospital that afternoon. Field sobriety tests were conducted, and the officer administering the tests says that Woodman lost her balance, swayed, and exhibited additional signs that she was under the influence of medication. She was originally charged with manslaughter and intoxication assault, but the intoxication assault charge has since been amended to aggravated assault with a deadly weapon.

Just after the incident, Woodman’s bail was set at $25,000 on the assault charge, and $30,000 on the manslaughter charge. The bail order also contains the notation “IID”, and indicates that a condition of bail is that Woodman have an ignition interlock device (IID) installed in her vehicle. The IID requires that the driver blow into it before starting the vehicle, and periodically while the vehicle is being driven. If alcohol is detected (above the level set), the vehicle will not start.

Additional details concerning the alleged violation of the conditions of bail have not yet come to light, although we suspect that a violation of the IID order was involved. The result has been the increase of her bail to $250,000. She turned herself in and was back in jail as of last week.

Whether you have been released on bail, or if you are on probation or parole, violation of the conditions set by the judge can cost you a lot, including your freedom.

The Law Office of Matthew Shrum, P.L.L.C.
808 West Ave.
Austin, TX 78701
(512) 447-2323

Road Rage in Travis County

When most of us think about the phrase “road rage,” we probably focus on the feelings of anger and frustration that reveal themselves when other drivers act as if they own the road. Of course, if we’re really honest about it, most of the anger is directed at actions that we ourselves are guilty of from time to time. In any event, for most of us, the experience is internal, or verbal at most.

A couple of recent stories, however, suggest that road rage goes a lot further in Travis County than anger and griping. In both incidents, firearms were involved:

  • This past Thursday, police say, a Central Texas man threatened a driver with a rifle. The report indicates that Daniel Staley was in his vehicle when he allegedly began cursing at another driver. They add that Staley then pulled up next to the other car, and pointed his rifle at the man. The other driver called 911, at which point Staley apparently tossed the rifle into a neighboring yard and fled the scene. Details of the events leading up to the rifle pointing incident were not available, but Staley has been charged with aggravated assault with a deadly weapon. Using gestures and profanity is how many people act out their road rage. Staley, on the other hand, is now facing a second degree felony charge. By the way, he is also charged with DWI.
  • On October 16, 2013, police say that Donathan Harris fired his weapon at another motorist in a road rage incident in northern Travis County. Harris admitted to that, and to holding the other man at gunpoint after the vehicles came to a stop. Harris said, however, that he shot at the other car because the driver repeatedly rammed his vehicle, and he feared for his safety. The case is just getting started, but police have concluded, at least initially, that Harris was the aggressor, and that when he shot at the other car, it caused the two vehicles to collide. As with the rifle incident involving Mr. Staley, Harris is now charged with aggravated assault with a deadly weapon.

In both these cases, the actors, at least according to the police, let their emotions get the better of themselves. In the process, they are now charged with felonies that could lead to as much as 20 years in prison.

The Law Office of Matthew Shrum, P.L.L.C.
808 West Ave.
Austin, TX 78701
(512) 447-2323

“Aggressive” Panhandling Targeted by Undercover Officers

That’s what officers from the Austin Police Department are calling certain tactics they say are being used by panhandlers in the downtown area. So early this year, the APD began an undercover operation to deal with the problem. Now, according to the downtown commander, the efforts are being stepped up.

Police say that aggressive panhandling involves more than simply asking passersby for money or spare change. It includes abusive behavior such as swearing and other tactics supposedly designed to intimidate the other person. In addition to city ordinances relating to the time, place and manner of solicitations for money, police say that some of the aggressive cases involve assault and other crimes.

The undercover program has been a major factor in the increase in arrests this year. So far in 2013, there have been over 900 people arrested for aggressive solicitation. In all of 2012, there were only about 350 such arrests.

In Texas and across the country, numerous blanket prohibitions on panhandling have been ruled unconstitutional over the years. Recent examples of laws that have been struck down include

  • An Arizona statute that made it a crime to beg for food or money in a public place.
  • A Slidell, Louisiana ordinance banning panhandling.
  • Utah’s anti-panhandling law, which a federal judge said was so broad it could prohibit children from selling lemonade in front of their homes.
  • A Michigan law that says if you are begging in a public place you are considered a disorderly person, and can be arrested.
  • A blanket ban on solicitation in a “no solicitation zone” under an ordinance in Colorado Springs, Colorado.

As the result of these decisions, many states, as well as municipalities including Austin, have enacted laws that appear to focus on prohibiting “aggressive” solicitation. This shifts the nature of the offense from the request for money, which has in many cases been deemed constitutionally protected speech, to the manner in which it is done.

We’ll be interested in seeing whether there are any new challenges to the revised versions of the anti-panhandling ordinances.

The Law Office of Matthew Shrum, P.L.L.C.
808 West Ave.
Austin, TX 78701
(512) 447-2323

City Bag Ban Said to Aid Shoplifters

Earlier this year, a city ordinance went into effect which, with some exceptions, banned Austin businesses from supplying single-use carryout bags to its customers. It had taken a year from its initial passage in March 2012 to prepare all the administrative rules which apply to the ordinance.

As you might expect, opinions on the usefulness and appropriateness of the regulations were mixed. Some felt the rules were simply unnecessary and not worth the inconvenience of having to remember to carry your own bags when shopping, or being forced to purchase multi-use (reusable) bags to carry your purchases. Others looked at the law as an effort to reduce waste, and help the environment.

But we don’t think anyone had envisioned another effect of so many people carrying their own bags around retail stores. According to some store managers in Austin, shoplifters are taking advantage of the situation by using the bags to hide the items they are stealing. Now, we don’t believe the ordinance was necessary for thieves to carry bags to hide their loot in. It’s just that when so many people are carrying their own bags in a store, it’s apparently easier now for shoplifters to slip through under the radar, so to speak. Having said that, we don’t have any statistics that say shoplifting is up over the past six months, so we’re not really sure whether the concerns are justified.

We should add that shoplifting is no longer a separate offense under Texas law. A single offense now includes not only shoplifting, but also swindling, embezzlement, receiving stolen property, theft by false pretext and other offenses, all of which are consolidated under the single offense of theft. As a general rule, the classification of these offenses, and the punishments that may be applicable in the case of a conviction, are dictated not by the type of theft involved, but by the value of the property that is the subject of the alleged crime.

We’ll have to give the ordinance some additional time before we can pass on whether it’s a good thing, or an idea that is not worth the effort. In the meantime, we’d need to see some hard evidence before coming to the conclusion that the new ordinance is facilitating illegal behavior.

The Law Office of Matthew Shrum, P.L.L.C.
808 West Ave.
Austin, TX 78701
(512) 447-2323