Contact us by e-mail: bccourier@
sbcglobal.net
to send press releases, advertising inquires, compliments or complaints.

Contact Web master by e-mail: pcwordsmith@
indian-creek.net
to report a missing link, a problem with the Web site or incorrect information on the Web site.

Bandera County Courier is published weekly by Gail S. Joiner, 1210 Hackberry St., Bandera, TX 78003. Subscription price $26 per year in Bandera County, TX; $36 per year for other Texas counties; $40 per year out of Texas. POSTMASTER: send address changes to Bandera County Courier, P.O. Box 1704, Bandera, TX 78003. Periodicals Postage pending in Bandera, Texas.

Subscribe to the Bandera County Courier

Gail Joiner: Publisher
Carl Holt: Sales/Marketing
Staff: Judith Pannebaker, Editor
David Arny, Writer
Dennis Allyn, Political Cartoonist
Linda Reynolds, Classifieds
James Henry Frazar, Composition Editor
Contributors: Stephanie Parker, Marlene Heavner, Doug White, Clare Barnett, Mikie Baker, Doris Doebbler, Jack Finger, Ed Longhurst, Bill Ellis, Bob Jamison and Jim Harris.

The BCC is responsible for its errors in advertising to the limit of the size of the space occupied by the error. Any mistakes will be gladly corrected provided advertiser notifies this office after the first publication. We reserve the right to reject any/all advertising at any time. The taking of an ad by e-mail, clerk, or other BCC personnel does not constitute acceptance of the material for publication.

Download Bandera County Courier Advertising Rates. You must have Adobe Acrobat Reader to view the ad rate card.

Entire contents Copyright © 2004, 2005, 2006, 2007, 2008 - Bandera County Courier

The Bandera County Courier
Deadlines
Real Estate Review and Community Board Ads
Noon Friday
All other Advertising and Articles
5 p.m. Friday
(Proof corrections Noon Monday)

Items should be typed or printed and should include the name and daytime phone number of a contact person. Items submitted after deadline will be considered for that week's edition but may be held over for later publication. Photos should include information on the time and place of the event, as well as full names of people from left to right, front row to back.

Court articles in the on-line edition of the Courier:

CCPAL, Heaver fire attorney two weeks before trial	Published May 8, 2008
Ramifications in local child sexual abuse case continue	Published May 1, 2008
Grand Jury	Published April 10, 2008
Civil rights complaint filed against BCSO	Published April 3, 2008
Prohl moves CCPAL civil trial to Mason County	Published March 20, 2008
Tucker redux? Ham files for new trial	Published March 13, 2008
‘Jury is in, Tucker cleared’	Published March 6, 2008
Local judges attend seminar	Published March 6, 2008
Dixie Diamond owner owes $5.7 million for fraud	Published Feb. 28, 2008
Tucker trial enters second week in federal court	Published Feb. 28, 2008
Day by day coverage of the Feb., 2008, civil trial of Ham vs. Tucker (Day 2 to Day 6)	Page will open in new window
Judge refuses to ‘sequester’ news media (first day)	Published Feb. 21, 2008
Case closed -- three dogs destroyed	Published Jan. 17, 2008
CCPAL unwilling to let dogs die, while judges drop like flies	Published Jan. 10, 2008
Court articles from 2007
Court articles from 2006	Court articles from 2005 and 2004

Ramifications in local child sexual abuse case continue by Judith Pannebaker BCC Editor Published May 1, 2008 Tara Robben Giblin-Cowley    After a relatively short deliberation, a jury in the 216th District Court of Bandera County recently voted to terminate the parental rights of Tara Robben Giblin-Cowley, 33 of Pipe Creek, from her 11-month old son.     ‘Unfit to raise puppies’     During his closing arguments on Tuesday, April 22, Albert D. Patillo III, ad litem guardian and attorney for the young child, told the jury, “If the American Kennel Club found Tara Cowley unfit to raise puppies, you can find her unfit to raise a child.”     The predominately male jury evidently concurred. After listening to evidence and arguments for six days, they deliberated only about 75 minutes before arriving at a verdict.     When Giblin-Cowley, who was confined to a wheelchair for an intermittent medical condition, realized she had lost custody of the baby, she screamed, “No, no, no,” creating a scene that required her removal from the courtroom. She continued the outburst outside the courthouse, and an officer with the Bandera City Police Department had to be summoned. Family friends quickly removed Giblin-Cowley from Main Street – just it time, as it turned out. As Police Chief James noted, “She was about to be arrested for creating a public disturbance.”     Giblin-Cowley vowed to appeal the jury’s decision. She must file an appeal within 15 days.     Dachshunds & Danes     Parental rights to Giblin-Cowley’s two other children were severed after her then husband was convicted in 2006 of multiple counts of sexual assault against the couple’s two small children. In addition, Giblin-Cowley has been convicted of three counts of failing to report the repeated sexual abuse.     Giblin-Cowley’s conviction for animal cruelty prompted Patillo’s statement.     In conjunction with the sexual abuse investigation, Bandera County deputies seized dachshunds and Great Danes from the Robbens’ mobile home in Pipe Creek. Apparently, Tara Robben had raised and sold dogs to supplement her income.     Cowboy Capital Pet Assistance League Executive Director Marlene Heavner said the seizure included five dachshund puppies, nine dachshund adults and three harlequin Great Danes – most suffering from ringworm, mange and internal parasites. In addition, the majority of the dogs were emaciated and covered with feces.     A male Great Dane was euthanized for medical reasons, and the two pregnant females Danes were subsequently stolen from the county animal shelter on Highway 16 North. The case remains unsolved.     Based on her nolo contendere plea to the animal cruelty charge in Bandera County Court, the American Kennel Club’s Management Disciplinary Committee suspended Tara Robben from all AKC privileges for 10 years, effective April 2007, and imposed a $2000 fine.     Indictments     In addition, Giblin-Cowley was later indicted on several counts of sexual abuse of a child. Her case remains pending in the 216th District Court. Assistant District Attorney Steve Wadsworth anticipates the case will be placed on the trial docket sometime during this summer. “Her attorney has filed a number of pretrial motions, which we are currently working through,” he explained in an email.     The most recent litigation, presided over by San Antonio Judge Michael Peden, directly stemmed from summer 2006 when John Robben Sr., pled guilty to three counts of aggravated sexual assault of a child and four counts of indecency with a child in the 216th District Court. Those charges involved Robben’s children, a girl and boy, then 5 and 7, as well as a 7-year-old girl, not related to the family.     Back-story     The investigation began in April 2006 after a concerned citizen contacted then Bandera City Police Chief Shane Merritt regarding a possible case of child molestation. Since the alleged crime had occurred in the county, Merritt enlisted the aid of then interim Bandera County Sheriff Weldon Tucker.     A search warrant was obtained and county investigators seized three computers from the Robbens’ residence, which authorities believed contained evidence of the sexual abuse.     After a polygraph test was administered, Robben confessed to sexually assaulting the three children, as well as numerous others. He also gave a written statement describing the abuse.     In November, Judge Stephen Ables sentenced him to three life terms and four 20-year terms to be served consecutively in the Texas Department of Corrections.     At that time, Tucker stated, “Making (the sentences) run consecutively instead of concurrently means Bandera County no longer has to worry about this menace to society. The worse thing that I see as a law enforcement official is when children are harmed. That’s one of the most heinous crimes there is.”     Aware of sexual abuse     According to Child Protective Services Public Information Officer Mary Walker, the Robben children were removed the home because staff felt their mother – then known as Tara Robben – had been aware of the abuse and allowed it to continue – a suspicion later proven in criminal court.     “The law says our job is to remove the risk from the child, or remove the child from the risk,” Walker said. “We determined this to be a Priority 1 case, meaning the children were in immediate danger.     Because Tara Robben failed to fulfill requirements stipulated by the state and Court Appointed Special Advocates (CASA), her parental rights – as well as those of her husband – were terminated     She was later convicted of three counts of failing to report sexual abuse.     The plot sickened, however, when a further CPS investigation indicated Tara Robben might have participated actively in the sexual abuse of her children. After being arrested by BCSO deputies last May on two charges of aggravated sexual assault of a child, a grand jury indicted her for the alleged crimes.     Latest trial     About that same time, Tara Giblin-Cowley gave birth to a boy by an “unknown father.” CPS authorities immediately removed the baby from her care and placed him in a foster home, where he remains.     During the six days of the civil trial, which began on Monday, April 13, graphic details of the aberrant sexual abuse perpetrated against the baby’s half-siblings were entered into evidence, including videotapes of interviews with both abused children.     As a witness for the state in last week’s trial, John Robben Sr. testified that his wife – and mother, Ann Sternberg Robben – had been aware of his continued sexual abuse of his children. He had made the same allegations at the time of his arrest. In her closing argument on Tuesday, April 22, Anna Saldana Ford, regional attorney for the Texas Department of Family and Protective Services, offered a synopsis of the evidence and witnesses – which had included psychologists, child advocates, counselors, social workers and CASA volunteers.     She emphasized that abuse did not have to be perpetrated against Baby Boy Giblin in order for his mother’s parental rights to be terminated. Rather, a pattern of behavior could be applied in the case.     ‘In denial’     “You heard one expert witness testify that there is no cure for sex offenders, particularly those who are in denial. Tara Cowley is certainly in denial. She blames everyone for her situation except herself,” Ford said. She noted that Giblin-Cowley had previously isolated her children to the extent that an attorney had accompanied the family to state-mandated counseling sessions.     Ford said, “This mother let sexual abuse continue for three years without doing anything about it. A therapist testified that these children would be affected for the rest of their lives from years of abuse. There is no such thing as ‘a little’ sexual abuse. These children will be scarred for life. Home to them was a place to hide and be afraid. Home was a place where horrible things happened.”     According to Ford, Giblin-Cowley had also failed to fulfill any of the requirements set forth by CPS as a condition of retaining her children. “Past conduct is a good indicator of future conduct,” she said. “Don’t give her the opportunity to steal the life of another child.”     ‘Inch deep & mile wide’     As attorney for Giblin-Cowley, Patrick Hundley commented, “This case is a mile wide and an inch deep.” Attempting to raise doubts that CPS attorneys had produced “clear and convincing evidence” for parental termination, he took exception to what he described as a failure to investigate the allegations thoroughly. “You can’t take someone’s child away if you don’t know the truth,” he told the jury.     Scoffing at one conclusion, Hundley said, “The idea that (Tara) can’t change is beyond comprehension, especially to make that pronouncement without proper investigation.”     He claimed that no one had cautioned the children about making what he alluded to as false declarations of sexual abuse. “Did anyone say to the children, ‘It is very important for you to tell the truth?’ Someone needed to explain the consequences to them of not telling the truth, especially if their words would convict people and throw them behind bars for the rest of their lives.”     He also indicated the two siblings might have been “pressured” to tell lies.     Describing the situation “a gigantic mud pit,” Hundley admitted, however, “Something happened here, (but) we don’t know (for sure) what happened.”     He forwarded a theory that the sexual abuse allegations by the seven-year-old boy against John Robben Sr. had stemmed from the pornographic videos the child had watched with his father. “(The child) was subjected to this garbage and had a vivid picture of horrible stuff in his mind,” Hundley conjectured.     Attempting to paint a more pleasing portrait of his client, he continued, “July 2006 was the last time Tara saw her children. The kids love their mom and she loves them. After he was convicted, she divorced John Robben Sr., who had beaten her up and abused her. She was unaware of the sexual abuse.”     In conclusion, Hundley asked the jury to “look at the evidence and come up with what is fair.”     Life on Candy Lane     Representing the 11-month-old baby boy, Patillo observed, “The penalty for John Robben Sr.’s perversions is life in prison. The evidence was clear and convincing.     “It is in the best interest of this child to have his mother’s parental rights terminated. His foster mother will adopt him and this baby will have the best life he possibly can. But, for the children at 461 Candy Lane, life was anything but sweet.”     According to Ford, CPS attorneys will initiate parental termination proceedings against Giblin-Cowley for any other children she bears.     In 1996, Giblin-Cowley was investigated after she rolled over and killed her four-day-old infant; however, the baby’s death was ruled an accident.

Grand Jury Published April 10, 2008    The following individuals were indicted by a 216th District Grand Jury in March.     Spencer Joseph Hicks, felony evading arrest; Lori Ann Davis, possession of a controlled substance; Jerry Norton Word, indecency with a child; Chad Scott Parker, burglary of a building; Verlin James Manis, burglary of a building; Raul Gallegos Jr., possession of a controlled substance with a deadly weapon, possession of certain chemicals with a deadly weapon and manufacture of a controlled substance with a deadly weapon; Russ Evan Koch, possession of a controlled substance with a deadly weapon, possession of certain chemicals with a deadly weapon and manufacture of a controlled substance with a deadly weapon; Shelly Darlene Mazurek, possession of certain chemicals; Mason Lyn Kellner, burglary of a building; Tom Gregory Santos, felony DWI; Candace King Roos, failure to appear; and Richard Burton McCall, tampering with physical evidence and possession of marijuana (four ounces to five pounds).

Civil rights complaint filed against BCSO by Judith Pannebaker BCC Editor Published April 3, 2008    On the advice of 216th Assistant District Attorney Steven Wadsworth, Medina attorney Carole Boyd has filed a civil rights complaint against the Bandera County Sheriff’s Office with County Attorney Kerry Schneider. The complaint grew out of an attempt by Boyd’s client, Marlene Heavner, director of the Cowboy Capital Pet Assistant League, to correct what she alleges is an erroneous investigative report. Unwilling to alter his report, the investigating officer, Christopher Wilson, threatened to arrest Heavner for making a false statement, or, as he purportedly, put it, “lying to me again.” According to Boyd, Lt. Allen Tucker witnessed the exchange.     On Wednesday, March 26, Boyd sent a letter to Schneider requesting an investigation into what she viewed as a violation of Texas Penal Code, Sec. 29.03, Official Oppression. Sworn affidavits, signed by Boyd and Heavner, accompanied the letter.     The complaint stemmed from an incident that Wilson investigated which involved dogs shot by Heavner’s neighbor TE “Gene” Carnes. Carnes shot the dogs belonging to CCPAL after claiming they had killed his goat(s). Carnes later filed a $150,000 civil suit stemming from the incident against Heavner and CCPAL.     In her affidavit, Heavner wrote that the sheriff’s department refused to take a complaint from her at the time of the incident, but instead served her with a complaint from her neighbor (Carnes). Additionally, the affidavit claims collusion between Carnes and the sheriff’s department.     “My neighbor was a reserve deputy sheriff, is a Mason who inducted the current sheriff (Weldon Tucker) into the Masons recently, along with his best friend, who has a ranch upon which the sheriff and his family and the sheriff’s brother (Allen Tucker) and his family all reside rent-free.”     According to the affidavit, after Heavner retained Boyd to represent her in the civil litigation, she again filed complaints against Carnes for reckless endangerment and animal cruelty. However, Sheriff Tucker dismissed the matter as being filed “too late.” However, as felonies, both complaints have a three-year statute of limitations.     Previously, Boyd had been unable to obtain a diagram from Wilson through the Texas Open Records Act because the diagram had been described as part of his personal notes taken during the investigation.     In her affidavit, Heavner described being asked to draw the diagram on a plat of her property. Heavner’s diagram included the location of Carnes after the shots were fired, locations of fence lines and residents and the position of the dead dog. Wilson also apparently asked her to “draw dotted lines indicating the bullet trajectory from where my neighbor was standing with his gun in hand …” After she was asked to sign the dated document, the diagram apparently became not subject to the open records request.     Heavner concluded her affidavit by writing: “I cannot imagine a county relying upon a sheriff’s department for protection who threatens citizens with arrest if they want to correct the department’s erroneous report.” She also claimed the false report was not a mistake, but an intentional effort to alter the facts “to substantiate (the department’s) contention hat there was no basis for my complaint. This intimidation and oppression is, unfortunately, an ongoing and widespread situation (in Bandera County) that must be stopped.”     Bandera County Sheriff Weldon Tucker did not return repeated phone calls from The Bandera County Courier regarding this matter.

Prohl moves CCPAL civil trial to Mason County by Judith Pannebaker BCC Editor Published March 20, 2008    Fearing her clients will be unable to get a fair and impartial trial in Bandera County, Carole Boyd, attorney for the Cowboy Capital Pet Assistance League and its Executive Director Marlene Heavner, traveled to Kerrville on Monday, March 17, to plead her case for a change of venue.     Judge Karl Prohl of the 198th Judicial District presided over the hearing. On Wednesday, March 19, Prohl granted Boyd's motion. The civil lawsuit will begin Tuesday, May 13 in Mason.     Back-story     After CCPAL dogs allegedly killed goat(s) belonging to TE “Gene” Carnes and his wife, Gay, the couple filed a $150,000 civil lawsuit against both Heavner and the pet rescue organization. Dogs that Heavner had been keeping on her property in Pipe Creek purportedly escaped their enclosure and strayed onto the Carnes’ adjacent property. After Heavner entered a “no contest” plea on the advice of Bandera County Attorney Kerry Schneider, Carnes filed the civil lawsuit, seeking compensation of $25,000 for exemplary damages and $50,000 as damages for private nuisance, as well as attorney’s fees, from both CCPAL and Heavner.     In addition, Carnes shot the two dogs that he contended had killed his goat(s). According to Boyd’s original brief, however, Carnes apparently admitted he did not actually witness the dogs killing his goat(s). Both dogs died on Heavner’s property. Although Carnes’ action was reported to the Bandera County Sheriff’s Office, Carnes claimed he fired at the dogs “parallel to the fence line” that separates his property from Heavner’s, so no investigation ensued.     Boyd’s brief quotes Heavner as recalling, “There was no blood found on either dog except from the bullet holes, and no holes under the property fence where the dogs could have left or re-entered (my) property, nor was the fence broken in any place.”     Biased affidavits     At the onset of Monday’s pre-trial hearing, Prohl said, “This is a Bandera case. I’ve never seen this file and know nothing about this case.”     As part of the requirements for a change of venue, Boyd had submitted “the credible affidavit of the (involved) party and affidavits of three residents of the county in which the suit is pending.”     She claimed that a January proceeding – presided over by Judge Charles Sherill of the 216th Judicial District – had indicated to her “a fair and impartial trial could not be rendered in Bandera County.” Calling the January hearing a “travesty,” Boyd told Prohl she had attached a copy of the transcript to her file for his perusal.     James Higdon, attorney for the Carnes, objected to the affidavits, describing them as filled with “one hearsay statement after another.” He went on, “All the affidavits have no factual basis as to the necessity of a change of venue. That is the sum and substance of our defense.”     In particular, Higdon singled out the affidavit of Judith Pannebaker, editor of the Bandera County Courier, who, he claimed, was “biased going in.” As proof of her bias, Higdon wrote that in over a year, Pannebaker had called neither he nor his client for an interview regarding the litigation.     Prohl indicated the court would decide the legality of the affidavits.     Boyd noted she had received Higdon’s response to the charge of venue shortly before hearing was convened on Monday.     As if inadvertently underscoring her complaint, Higdon apologized to Prohl, saying, “Your Honor, in my rush to get this done this morning, I noticed I failed to highlight the portions of the affidavits that I feel are objectionable.”     Sphere of influence     To a query from Prohl, Boyd indicated her clients would be satisfied if the trial were set in Kerr County. “This would pose no imposition on those involved, but would get the trial out of Bandera County and still keep it within a reasonable area,” she said. “Everyone indicated there is control about what happens in Bandera County. A frightening situation could happen.”     “Mr. (Phil) Becker’s influence is a small sphere,” Prohl rejoined. “The jury of your client’s peers would be taken from throughout the county. What has happened in the courtroom before won’t happen again.”     “The sphere of control in Bandera County extends to the sheriff’s office. They (investigate) what they shouldn’t and don’t (investigate) what they should. (Deputies) intimidate and harass people and extort money from people,” Boyd said. She indicated that additional people refused to come forward because they feared retaliation. "CCPAL volunteers even fear retaliation. Jurors might not admit they fear retaliation.”     Big potatoes     “There is nothing but tripe in those affidavits. A Masonic conspiracy is utter nonsense,” Higdon said. “This was a $500 lawsuit and now we’re up to $25,000 in attorney’s fees. It started out as a small potato until Ms. Boyd got involved. Now it’s big potatoes.”     “Regarding the legal fees, we’re the defendants. We didn’t start this lawsuit,” Boyd countered. “I’m concerned with the jury pool and the pervasive fear people have in Bandera County. I’ve seen proceedings influenced in Bandera County. The sheriff’s office is not a small thing. The county is controlled by the sheriff’s office. It’s an influential force and I have a big concern about residents being retaliated against.     “I always thought Masons were a service organization, but in Bandera County, they’re very political. Mr. Becker is related in Masonry to (both) Mr. Higdon and Mr. Carnes. They’re high Masons and have a lot of control. Bandera is not a county I can get a fair trial in, but I think Kerr County is not the same as Bandera County in that respect.”     “At best, two deputies will testify about what they saw. The sheriff doesn’t have anything to do with this civil lawsuit,” Higdon said.     Recusals     Originally scheduled for October 2007, the civil trial was to be heard by 216th District Judge Stephen Ables. However, due to the appearance of conflict of interest, Boyd filed a motion for his recusal.     Boyd discovered Ables was “an announced and recognized participant” in the “Judicial RoundUp” held at the ranch of a partner of the San Antonio law firm Higdon, Hardy & Zuflacht, LLP.     Before a hearing on the matter could be scheduled, however, Ables voluntarily recused himself from the proceedings in November.     “I am voluntarily allowing Chief Justice (Wallace Jefferson) of the Supreme County to appoint a judge to hear the case,” he said during a telephone interview with the Courier. “It will be easier to have the Chief Justice assign another judge to hear the case.” He felt that given the current “atmosphere,” it might prove impossible for anyone involved in the case to feel they’ve gotten a “fair shake.”     Jefferson appointed Prohl to hear the case. However, since he, too, had been named as being honored during the same “Judicial RoundUp” as Ables, Boyd filed a motion for Prohl's recusal as well.     On Feb. 22, a hearing was held on the second recusal motion, presided over by Judge Laura Livingston, an Austin judge who was appointed by Jefferson.     During the hearing, it was revealed that in a letter to the Chief Justice, Ables gave no reason for recusing himself and also did not sign an order of recusal. Ables simply wrote, “I request you to appoint a judge to hear the case.”     “Judge Ables, for whatever reason, decided he shouldn’t preside over the case,” Boyd said, indicating that Prohl’s conflicts would echo those of Ables.     May trial     Calling Boyd’s motion for Prohl’s recusal “frivolous,” Higdon demanded the court impose sanctions against her, as well as awarding attorney’s fees in the amount of $5,000 for the time he had spent preparing for the hearing.     Regarding the “Judicial RoundUp” sponsored by his law firm, Higdon indicated that “honored” judges receive money for their re-election campaigns, while “recognized” judges do not. “At no time did Judge Prohl receive funds,” Higdon said. “At the most, he may have received a plaque.”     After hearing closing arguments from both attorneys, Livingston denied Boyd’s motion to recuse Prohl due to a defect in her motion, and also because CCPAL did not meet the burden of proof.     “Yo must demonstrate that Judge Prohl is not fair or competent,” she said, adding that the decision must be guided by the “reasonable person test.”     Livingston continued, “Judges and lawyers (often) end up at functions and events, so you have to be careful.”     However, she refused to impose sanctions against Boyd, saying, “There is nothing frivolous about wanting to have your fair day in court.” Livingston awarded Higdon $750 as reasonable attorney’s fees.     Regarding the motion for change of venue, Prohl admitted the case was complicated and felt he should review case files prior to ruling.     However, he understood, the volatility of the situation. “This has become so contentious, we need to resolve it,” Prohl said.

Tucker redux? Ham files for new trial by Judith Pannebaker BCC Editor Published March 13, 2008    After his recent exoneration in a civil rights trial in federal court, Bandera County Sheriff Weldon Tucker expressed relief that the nine-year litigation had come to an end. However, in the words of Yogi Berra, “It ain't over till it's over.”     Last week, Gregory Yates, attorney for plaintiff Bradley Ham, filed motions in the United States District Court for the Western District of Texas requesting, not only a new trial, but also a 45-day extension to allow Ham to obtain portions of the transcript of the original trial and to allow interviews of the jurors.     The civil trial, which began on Feb. 19, stemmed from a 1999 shooting incident in Real County where Tucker was serving as a deputy sheriff. At that time, Tucker fired at an unarmed Ham, who was fleeing arrest for marijuana production. Tucker’s hollow-point .45 bullet hit Ham in the left leg, which was subsequently amputated below the knee.     Prior to the shooting incident, Ham had fled South Dakota on an outstanding federal warrant for producing marijuana in that state.     After a six-day trial, a jury of 10 women and two men determined, in a 10-2 decision, that Tucker did not violate Ham’s Fourth Amendment rights by using excessive force in his apprehension.     Yates’s motion for a new trial is based on the claim that introducing the South Dakota conviction was “highly prejudicial and detrimental, and that the verdict is against the great weight of the evidence.”     After Ham returned to South Dakota, charges against him for growing marijuana in Texas were dropped on the condition he plead guilty to the South Dakota charges.     Ham served 18 months in prison on a felony drug manufacturing conviction.     In his motion for a new trial, Yates claimed that admitting Ham’s subsequent South Dakota felony conviction prejudiced the jury, causing them to judge his client negatively “without regard to the real facts relevant to this case and the relationship between the alleged drug charge and the issues in this case.”     The motion also noted that District Judge Royal Furgeson originally excluded evidence relating to Ham’s criminal background from being introduced into evidence.     At the beginning of the trial, Furgeson discussed witnesses who testified for the plaintiff, calling Ham’s younger sister, Cynthia Ham Rose, “a powerful witness (who gave) powerful testimony vouching for her brother.” Furgeson continued, “I can’t tie one party’s hand behind its back. A judge’s job is to try to keep balance. Right now, there’s no balance. I can’t let this be a one-sided case.”     At that time, Yates responded, “If the case is one-sided, it’s the evidence coming in and it’s the relevant evidence.” According to the motion, to “even the playing field,” Furgeson permitted introduction of Ham’s conviction in the South Dakota case even though “the prejudicial effect would outweigh the probative value as to Ham’s credibility.”     During the trial, Ham testified about his South Dakota conviction, but only as a part of the “same offense” that occurred in Texas. According to Yates, this was “totally consistent with the defendant’s offer to link the two offenses together as part of one course of criminal activity.” However, as the trial progressed, Robert Bass, Tucker’s attorney, argued and introduced evidence that the two incidents were separate criminal activities, Yates’s motion claims.     Ham volunteered his conviction as a part of “one continuous course of criminal conduct for which he had ‘done his time.’ There was no reason to allow the introduction of his conviction as a prior bad act.”     Yates believed this had created the false impression in the jurors’s minds that Ham had repeated his felonious conduct. According to Yates, the South Dakota and Texas felonies were part of the same case rather than separate incidents. Yates’s motion also put forth that a new trial should be granted since the verdict is against the great weight of the evidence. According to law, a verdict is “against the great weight of the evidence” when no reasonable jury could have returned it.     “The evidence (presented by the plaintiff) was overwhelming and conclusive on the objective reasonableness of Tucker’s use of deadly force.”     According to the motion, before he was shot, Ham did not pose an immediate threat of death or serious physical harm to Tucker or others. Therefore, no reasonable police officer, when confronted with Tucker’s circumstances, would have felt justified in shooting Ham or would have believed that he had probable cause to shoot Ham.     The motion pointed out that an unarmed Ham fled down an abandoned path behind a house located a half a mile way from the nearest neighbor. No evidence showed Ham was heading towards the unlocked police vehicle – which allegedly contained unsecured weapons. Both Ham and an eyewitness to the shooting, Texas Parks and Wildlife Game Warden Shane Hohman, testified that Ham did not veer towards the vehicle while fleeing.     In fact, the motion contends there was no evidence, other than Tucker’s testimony, that the police vehicle was unlocked or actually contained weapons. In addition, it is undisputable that prior to being shot, Ham did not touch the police vehicle. Given these circumstances, the only inference that can be drawn was that Ham did not pose an immediate threat to the safety of Tucker or anyone else.     The motion concluded, “The evidence simply did not suggest that at the time he shot Ham, Tucker and others were in any danger of great bodily harm from the standing of (what) an objectively reasonable officer (would have done) under the same or similar circumstance. Accordingly, the verdict is against the great weight of the evidence and a new trial should be ordered.”     The ball is now clearly in Furgeson’s court – again. In 2005, he dismissed a civil suit against Tucker; however, the US Fifth Circuit Court of Appeals in New Orleans overturned Furgeson’s ruling and remanded the case back to his court for retrial.     If he denies Ham a new trial, no doubt Yates will pursue an appeal in New Orleans.

‘Jury is in, Tucker cleared’ by Judith Pannebaker BCC Editor Published March 6, 2008 Sheriff Weldon Tucker    A 10-2 decision by a San Antonio jury has exonerated Bandera County Sheriff Weldon Tucker for violating the civil rights of a fleeing suspect.     The decision came on the seventh day of a civil trial in the United States District Court-Western District of Texas. After four hours of deliberation and six days of testimony, the jury, comprised of 10 women and two men, determined that Tucker did not violate plaintiff Bradley Ham’s Fourth Amendment rights by using excessive force in his apprehension. The plaintiff, therefore, received no monetary compensation.     The trial stemmed from a 1999 shooting incident in Real County. At that time, Tucker, then a deputy sheriff, fired at an unarmed Ham, who was fleeing arrest for marijuana production. Prior to the shooting incident, Ham had fled South Dakota on an outstanding federal warrant for producing marijuana in that state.     Tucker’s hollow-point .45 bullet hit Ham in the back of his left leg, smashing bones and severing an artery. His leg ultimately was amputated below the knee.     To justify the shooting, Tucker, 48, testified Ham had “veered toward” an unlocked patrol vehicle containing loaded, but unsecured, weapons. Tucker said he shouted for the suspect to stop and fired several warning shots – to no avail. When Tucker took the stand, his attorney, Robert Bass, asked him, “Was the unlocked truck an oversight?” “No. I decided to leave the truck unlocked so anyone involved with the investigation could use it,” Tucker replied. As the pursuit proceeded away from the house and towards the general vicinity of the vehicles, Tucker testified that he fired two “warning shots” to convince Ham to end his flight.     “So, you didn’t immediately fire at Mr. Ham as he ran down the path?” asked Bass.     “No,” answered Tucker. “I wanted to use the least amount of deadly force possible. I decided to put a stop to this when he got close to the truck. That’s when I stopped, took aim and fired my weapon. I fired at his lower legs both at the same time.”     During his cross-examination, Gregory Yates, attorney for Ham, asked Tucker, “Do you still believe your use of force was justified?”     “Yes I do. As a police officer, you’re put out in a situation and you try to plan ahead, but sometimes it doesn’t work and things happen. You don’t ever want to use weapons, but sometimes you have to,” Tucker replied.     “If I had to do it again, I would.”     During his testimony, Ham claimed he had been running straight down a path leading away from the scene. He contended he never observed police vehicles hidden among the tree — ostensibly parked to the left of Ham's path of escape. "I veered to the right to get into the trees," he added. "I was afraid he'd shoot me."     In addition, Ham alleged that Tucker did not identify himself as a law enforcement officer, but instead began firing immediately. "I heard instantaneous shots firing and (Tucker) hollering. Many rapid shots were firing. Bullets were flying by me and I was scared."     After covering approximately 150 to 175 yards in about 30 seconds, Ham believed Tucker's last shot struck him. Ham said as he rolled over onto his back, Tucker appeared over him, visibly shaken. "I screamed, 'God, why did you shoot me'?"     According to Ham, Tucker replied, "'Cause you were running toward my police vehicles."     In excruciating pain, Ham replied, "Liar, you knew I meant you no harm."     Problematic to the case was the fact that both vehicles — one belonging to Tucker and the other to Texas Parks and Wildlife Game Warden Shane Hohman — had been moved by law enforcement officers prior to investigation of the shooting incident.     According to his own estimate, investigator Texas Ranger Coy Smith had arrived on the scene several hours after the shooting.     Smith testified that he had determined the previous location of the two law enforcement vehicles by carefully examining tire tracks left at the scene after the vehicles had been moved. "The tracks clearly indicated where the vehicles were parked," Smith said.     However, when cross-examined by Ham's co-counsel Raul Rios, Hohman said he had repositioned his TP&W truck several times during the previous night for best concealment.     In addition, Rios questioned Hohman about witnessing the shooting incident. "Warden Hohman, did you ever see Mr. Ham go directly towards Deputy Tucker's truck?"     "No, sir," Hohman replied.     During his testimony, Sheriff James Brice maintained the law enforcement vehicles were used following the shooting to transport an individual arrested at the house the previous evening, as well as to "tag and bag" evidence for the drug case against Ham and his alleged co-conspirators.     Yates pointed out that moving the vehicles fatally flawed the investigation from its inception.     US District Judge Royal Furgeson presided over the trial. In 2005, Furgeson had dismissed the civil suit against Tucker; however, the US Fifth Circuit Court of Appeals in New Orleans overturned Furgeson’s ruling and remanded the case back to his court for retrial.     While Tucker supporters were jubilant at the sheriff’s exoneration, clearly the protracted case had taken a toll on him. When the verdict was rendered, a relieved Tucker broke down outside the courtroom.     Tucker has been unavailable for comment to the Courier on the outcome of the case.     A full account of each day of the civil trial is available.

Local judges attend seminar Published March 6, 2008    Precinct 2 Justice of the Peace Bobbie Jo Basinger and Precinct 3 Justice of the Peace Enio Zapata were certified at the recent 20-hour Justice of the Peace Seminar.     The seminar, held from Feb. 26 to Feb. 29 in Corpus Christi, was sponsored by the Texas Justice Court Training Center, a division of Texas State University, San Marcos.     The seminar is one of five held for elected justices of the peace enabling them to fulfill their continuing judicial education requirements as set forth in Article 27.005 of the Texas Government Code.     Topics addressed during the session included judicial ethics, civil jurisdiction increase, evictions, DWI magistration, judge and constable partnership, property code inquests, miscellaneous hearings, parks and wildlife laws, critical analysis, traffic law, legal research, failure to attend school, video magistration and criminal law.

Dixie Diamond owner owes $5.7 million for fraud by Judith Pannebaker BCC Editor Published Feb. 28, 2008 All vestiges of the former Dixie Diamond Ranch in Polly Peak have been removed from the ranch’s gates. After being auctioned by the US government, proceeds from the sale of the ranch will be used to pay back money looted from his employees’ pension funds by ranch owner, Floyd W. Seibert. Staff Photos by David Arny    The owner of a local ranch recently found himself in hot water with the government, according to United States Attorney Matthew G. Whitaker. The man has been sentenced to 46 months in prison for committing Medicare fraud and another 46 months for embezzling from his employees’ pension fund.     On September 11, 2007, US District Court Judge James E. Gritzner sentenced Floyd W. Seibert, owner of the Dixie Diamond Ranch in Bandera County, to serve both sentences concurrently. Gritzner also ordered Seibert to pay $5,719,340 total restitution for the Medicare fraud and looting his employees’ pension fund.     In addition, Seibert, 61, who also has a residence in Oklahoma City, Oklahoma, will forfeit real and personal property totaling $2.7 million. After his release, Seibert will also serve a three-year term of “supervised release.”     On January 12, 2006, he pled guilty to one count of Medicare fraud. On October 12, 2006, in Florida, Seibert waived indictment and pled guilty to embezzling from his employees’ pension fund. That case was subsequently transferred to the Southern District of Iowa for disposition. Seibert owned and operated businesses in Texas, Oklahoma, Nevada and Florida, with his main office located in Florida. Although involved in other enterprises, his principal business involved operation of Medicare-certified home health agencies and peddling goods and services related to those health agencies. The Medicare fraud occurred in 1997, 1998 and 1999.     Along with owning the Dixie Diamond Ranch, Seibert’s other business ventures included Extended Care Services of Oklahoma, Central Texas Extended Care Services, Central States Pharmacy, Western Medical Supplies and Equipment, Rio Frio Outfitters, Health Care International of Nevada and Health Care International Holdings, British Virgin Islands.     To accomplish the Medicare fraud, Seibert created fictitious identities for his business dealings. For one alias, “Martin Mesquite,” he used a fraudulent photo identification, address, and social security number.     According to the US Attorney, Seibert knowingly and willfully “sold” goods and services from one of his companies to another at inflated costs, improperly billing the inflated costs to Medicare. Seibert also fraudulently passed on to Medicare costs from his businesses not related to Medicare, such as costs associated with the Dixie Diamond Ranch, 2131 Forest Trail Drive in Polly Peak.     Seibert owned and operated the ranch, a 695-acre property, which housed exotic animals used for hunting purposes, along with horses and a warehouse.     The warehouse housed business and financial records for Seibert’s other businesses, and Dixie Diamond Ranch employees were paid by the Medicare-certified home health agency in Florida. As a result of the government’s prosecutions, the ranch is currently under forfeiture. Proceeds from its future sale will be used to make restitution to the pension plan victims. The pension fund for Seibert’s employees was administered in his Florida office. From approximately April 1999 through October 2001, Seibert acted as trustee of his employees’ medical and pension plans. During this time, he fraudulently transferred $3.85 million from both plans to a shell corporation, Health Care International of Nevada (HCI). Created by Seibert, this Nevada corporation reported no revenue or income. It was funded almost entirely by the fraudulent transfer of funds from the medical and pension plans of Seibert’s employees.     Almost immediately after receiving monies from two plans, HCI, in turn, shifted the funds, in the form of loans, to Seibert’s other businesses, in particular Central Home Care Services, Inc. and related Medicare-certified home health agencies.     To accomplish this, Seibert assumed the fictitious identity, “Martin Mesquite.” According to the plea agreement, Seibert gave Mesquite the address of one of his siblings and the Social Security number of his deceased father.     As expenses on his cost reports submitted to Medicare, he improperly included the interest payments on the “bonds” issued in exchange for the transfer of funds from HCI to his other companies.     Once his scams were discovered, the entire wrath of the US government landed heavily on Seibert and his nefarious schemes. The US Attorney’s Office for the Southern District of Iowa prosecuted the case. Entities involved in the investigation of Medicare fraud included the Federal Bureau of Investigation, Department of Health and Human Services, Office of Inspector General, and CAHABA Safeguard Administrators, a combination of agencies charged with the detection and prevention of Medicare fraud and abuse.

Tucker trial enters second week in federal court by Judith Pannebaker BCC Editor Published Feb. 28, 2008    Despite Bandera County Sheriff Weldon Tucker’s prediction that the civil trial in which he is currently embroiled would be over “long before the (March 4) election,” the trial has now entered its second week in the United States District Court-Western District of Texas in San Antonio.     Back story     The lawsuit stemmed from an incident that occurred in 1999. While a deputy in Real County, Tucker shot an unarmed Bradley R. Ham, then 34, as he fled arrest for marijuana production. Ham’s left leg was subsequently amputated below the knee. Ham, 42, has filed a potentially multi-million dollar civil lawsuit against Tucker, claiming Tucker had used excessive force during his apprehension, in addition to violating his Fourth Amendment right against unreasonable seizure.     To justify use of deadly force, Tucker claims Ham was attempting to approach unlocked law enforcement vehicles that contained unsecured firearms when he was shot. The unlocked vehicles with unsecured weapons had apparently been parked in a wooded area during an all-night stakeout.     On the other hand, Ham claims he was merely fleeing the scene and was unaware of any law enforcement vehicles parked in the vicinity. Adding to the confusion, the vehicles were moved prior to investigation of the shooting incident.     Ham testifies     Ham, a resident of South Dakota, first took the stand Wednesday, Feb. 20, the second day of the trial being presided over by Judge W. Royal Furgeson Jr.     During his testimony, Ham referred to a self-drawn diagram that illustrated the house and environs where he had been living in Camp Wood, which contained the route he indicated he had taken when running away from Tucker. In his testimony, Ham said he returned to the house at 11 am the morning of Sept. 24, 1999, and dropped a cooler, filled with marijuana, by the side of the house. As he started to unlock the front door, Ham said he had heard a police radio transmission.     “I took two steps back from the door. Tucker opened the door, grabbed me by the shoulder, pulled me inside and told me to get face down on the floor.” While Ham was still on the floor, Tucker asked him two times, “Do you know what I’m doing here?”     “I told him, ‘No’, and also told him I had no weapons,” Ham said.     At Tucker’s order, Ham followed a combination entry way and utility area off the living room. “When the deputy opened the door into the utility room, I pushed open a screen door (leading to the outside) and took off running,” Ham said. According to Ham, marijuana had been stored in the utility room.     Shots fired     “I heard the screen door fly open and I continued running. I was scared,” he said. “I heard instantaneous shots firing and (Tucker) hollering. Bullets were flying by me and I was scared. It seemed like there was constant shooting the whole time I was running. (The shots were) ringing in my ears.”     According to Ham, he covered approximately 150 to 175 yards in about 30 seconds. He believed it was Tucker’s last shot that struck him in his left calf.     Describing the moment of impact, Ham said, “My leg went instantly numb and I hit the ground and fell on my face in unbelievable pain. My leg was basically gone.”     Ham said as he rolled over onto his back, Tucker appeared over him, visibly shaken. I screamed, “God, why did you shoot me?”     According to Ham, Tucker answered, “’Cause you were running toward my police vehicles.”     Still in excruciating pain, Ham replied, “Liar, you knew I meant you no harm.”     To questions from his attorney Gregory Yates, Ham said Tucker never displayed a badge nor did he see the deputy’s gun before Tucker began firing at him. He also said Tucker was wearing a blue and white flannel shirt and blue jeans. In addition, Ham contended he never observed police vehicles hidden among the trees – ostensibly parked to the left of Ham’s path of escape.     “I veered to the right to get into the trees,” he added. “I was afraid he’d shoot me.”     A photograph admitted into evidence apparently showed that when Ham was struck by the bullet, he had run well beyond where the law enforcement vehicles had purportedly been parked. If he had “veered” toward the vehicles, as Tucker contended, Ham would have been running toward a still-firing Tucker. However, the vehicles in question had been removed from the scene of the shooting prior to investigation of the incident.     Aftermath     Continuing his narrative, Ham said Tucker seemed less concerned with rendering first aid than fearing he would “lose his job” over the shooting incident. “I was lying on the ground bleeding and he was worried about losing his job,” Ham said. “He never helped me. The game warden finally waved Tucker off and tried to work on my leg, but it was basically blown off.”     An ambulance transported Ham to a hospital in Uvalde, but the emergency room was not equipped to deal with a wound caused by a .45 caliber bullet, according to Ham. He was then airlifted to Brooke Army Medical Center in San Antonio.     Despite multiple surgeries to save his leg, Ham’s left leg was amputated below the knee approximately a week and a half after his transfer to BAMC.     Criminal background     When Ham returned to the stand on Monday, Feb. 25, Yates questioned his client about his criminal background. Ham said he had been convicted in South Dakota on a felony charge of conspiracy to manufacture marijuana. According to Ham, charges against him in Texas had been dropped after he pled guilty to charges in South Dakota. At the time of his arrest in Texas, Ham was fleeing a federal warrant issued in his native state.     “Did you do time on the South Dakota charges?” Yates asked.     “Yes, I did,” Ham replied.     During his cross-examination by Robert Bass, attorney for Tucker, Ham said that although he “wasn’t sure,” he suspected Tucker was with law enforcement.     Regarding Ham’s flight, Bass asked, “You didn’t have a clue as to what was going on behind you?”     “Only that someone was shooting at me,” Ham replied.     Bass failed to shake Ham’s insistence that Tucker had not identified himself as a law enforcement officer, or even that Tucker had worn a ball cap that might have contained a law enforcement insignia on it.     At the conclusion of Ham’s cross-examination, Yates rested his case.     Defense witness     Bass called Texas Ranger Sgt. Coy Smith as the defense’s first witness. Smith had investigated the “use of force incident” and provided an analysis of the crime scene.     In a discussion with the jury absent, Furgeson noted Smith had arrived after the law enforcement vehicles had been moved. However, Bass said that by carefully examining tire tracks, Smith had “put the vehicles in a location other than where Ham indicated they were.” In addition, he said Smith would testify that Ham was “approaching the vehicles when shots were fired,” and that Smith would place Ham “even with the vehicles or a scant few feet behind them.”     “Running down the path is one thing and veering toward the vehicles is another,” noted Furgeson.     Bass ceded that since (Smith) had not been at the scene during the incident, he couldn’t tell (Ham’s intentions) definitively.     Yates objected to Smith’s testimony, saying, “He did not reconstruct the incident, but only surmised through testimony (of law enforcement officers on the scene) that force used was ‘objectively reasonable’.”     Furgeson told Smith, “The Supreme Court is clear about the test here. Where a suspect does not pose an immediate threat, an officer cannot used deadly force.”     Smith opined, however, if Ham had reached the unlocked vehicles, he would have posed an “imminent threat of serious physical harm” to Tucker and other officers on the scene as well as to the general population at large. To Furgeson’s contention that individuals who deal in marijuana rarely pose significant physical threats, Smith replied, “Any narcotics and drug dealer poses a threat to society and law enforcement. There is an increased propensity for violence and for things to escalate.”     In the end, Furgeson ruled Smith could testify to “what he saw on the ground” and the “kind of tactical problems Tucker would have faced had Ham had gotten to the vehicles.”     ‘Objectively reasonable’ force     Crime scene photographs taken by Smith had been introduced into evidence by both parties in the lawsuit. He testified that Tucker had shot Ham with a Colt 1911 .45 – “a modern version of an old 45 used in World Wars I and II.” One bullet remained in the chamber when the weapon was confiscated and two casings were found on the scene; however, according to Smith,     Tucker had fired seven shots in all. Smith testified he knew “warning shots had been fired.” By pacing off the route taken by Ham during his flight in “striding steps,” Smith determined Ham had run 237 yards before being shot. Blood stained ground indicated Ham’s “terminus of flight,” he said. Smith’s measurements between the location of the two casings – one of which Smith had determined had hit Ham – and the pooled blood on the ground amounted to approximately 34 yards. In addition, he felt Ham had continued to travel “some distance” after being stuck by the bullet.     “Only a shot to the head would incapacitate a person immediately,” Smith said.     Tire tracks     He also testified that he determined the former location of the two law enforcement vehicles by carefully examining tire tracks left at the scene after the vehicles were driven away. “The tracks clearly indicated where the vehicles were parked,” Smith said.     He did not take measurements of the clearing in which the vehicles were ostensibly parked. In addition, he cautioned that the 28 mm lens on his camera had distorted the area “making the dimensions of the clearing look like a humongous area while it was really quite confined.” However, the lens did not distort images of law enforcement officers depicted in the photographs.     In his testimony, Smith said Ham’s blood had been located just “a few feet” from where he had determined the vehicles had been parked.     “In my opinion, there was no question that Ham was approaching the vehicle as he was fired upon,” Smith said. “If Ham had reached the vehicle, Tucker would have lost his communications and been out-gunned. In addition, Ham would have had the vehicle. (Tucker) had to use deadly force prior to Ham reaching the vehicle.”     During his cross-examination, Smith admitted he had not examined a nearby clearing for possible tire tracks. “You’ve pointed out tracks, but you don’t know whether the tracks were caused when the vehicles were coming in or going out,” Yates said.     After admitting the vehicles had been moved prior to his investigation, Smith also said he did not ask to have the vehicles moved back into place because the location would have been “impossible to determine.”     Smokin’ testimony     After testifying that Ham was laying only a few feet away from the parked vehicles – only two to three feet away, Smith was forced to admit that he previously testified that Ham had been 20 to 30 feet away from the vehicles. “I must have been confused,” he explained.     In addition, Smith admitted he did not see loaded guns in the truck or verify the truck was unlocked, but rather had relied on statements from other officers on the scene.     In his original report, Smith also said he had indicated “warning shots” had been fired “based on the fact Tucker told me (he had fired warning shots).” Smith insisted, however, “Ham was approaching the vehicle and Tucker decided to incapacitate him. The first shot missed.”     “Did you question anyone about why the vehicles were moved before you arrived that day?”     “I don’t remember.”     “Is it good tactics to preserve key evidence in a scene like this?”     “They did that.”     “Well, they moved the trucks.”     Interjecting, Furgeson said to Smith, “The question is where the vehicles were (at the time of the shooting). There is no question that the vehicles were there. The questions concern their placement.”     Yates said, “The question is why the vehicles were moved before Sgt. Smith (arrived on the scene).”     Unacceptable practices     On day three of the trial, Thursday, Feb. 21, the most compelling witness for Ham was R. Paul McCauley, PhD, a professor in the Department of Criminology at Indiana University of Pennsylvania and former law enforcement officer. McCauley gave expert testimony regarding “generally accepted customs, practices and procedures in law enforcement.”     “In the criminal justice system, it’s important to strike a balance between the civil rights of a defendant and an officer’s safety,” he said. McCauley said he took his facts from sworn depositions of Ham, Tucker, Real County Sheriff James Brice and Game Warden Shane Hohman.     According to McCauley, Tucker had engaged in unacceptable law enforcement practices by keeping unsecured weapons in an unlocked patrol vehicle.     Moreover, McCauley testified Tucker had no right to use deadly force until Ham actually began to enter the vehicle rather than simply “veering” toward it.     “A police officer is required to be responsible for his car and its contents. The weapons are to be secured and the car locked. Locking the car is absolutely critical in my assessment,” McCauley said.     McCauley noted Tucker patted Ham down in the house in Camp Wood and had found no weapons. McCauley also indicated that the “alleged drug felony” was of a non-violent nature. In his deposition, Tucker stated the car was unlocked, the key was in the switch and a loaded gun was on the front seat, according to McCauley.     “In my opinion, the deputy did not act in accordance with any police procedures in the State of Texas. I see no reason (for Tucker to have applied) deadly force in this situation,” McCauley said.     No warning shots     When cross-examined by Bass, McCauley admitted Tucker met the minimum standards to be a Texas peace officer. He also conceded that law enforcement officers must be ready for the unexpected in all situations.     Despite posing several different scenarios that might possibly explain Tucker shooting toward the back of a fleeing unarmed suspect, Bass could not shake McCauley’s stance that the shooting was unnecessary.     According to McCauley, even deputies in Real County must adhere to acceptable standards and practices of law enforcement. McCauley even suggested that by leaving unsecured weapons in an unlocked patrol vehicle, Tucker might have been “baiting” a suspect for the express purpose of shooting him. “Until Ham made an effort to get into the vehicle, Tucker had no reason to apply deadly force,” he reiterated.     Bass then suggested that since Ham did not heed Tucker’s verbal commands to stop running, Tucker was justified to use “warning shots.”     “Couldn’t ‘warning shots’ be considered a method of getting someone’s attention?” Bass asked McCauley.     “As police officers, warning shots are never permitted,” McCauley replied.     “It is acceptable investigative practices and procedures to remove the vehicles before the investigation was complete?” Yates asked under redirect.     “No, that area was a crime scene, and, as such, should have been protected,” McCauley replied.     The Courier’s continued coverage of Sheriff Tucker’s civil trial will continue next week with details of Tucker’s testimony unless the Texas Association of Counties decides to settle the lawsuit.

Judge refuses to ‘sequester’ news media by Stephanie Parker BCC Staff Writer Published Feb. 21, 2008    Called a civil rights trial by prosecuting attorney Gregory Yates, the trial of shooting victim Bradley Ham verses Bandera County Sheriff Weldon Tucker began in the San Antonio United District Court Western Division of Texas on Monday, Feb. 19, with Judge W. Royal Furgeson Jr. presiding.     Yates’ opening statement claimed that excessive force was used to apprehend drug suspect Ham, 34, and that Ham’s Fourth Amendment right against unreasonable seizure was violated on Sept. 24, 1999, when Real County Deputy Tucker shot the unarmed man as he fled. Ham’s left leg was later amputated below the knee.     Tucker’s defense attorney, Bob Bass, called the loss of Ham’s leg a tragedy but defended Tucker’s use of deadly force. He said Tucker had reason to be apprehensive of Ham from a law enforcement standpoint. He cited Real County’s deputy shortage as a contributing factor.     Prior to jury selection, Yates expressed disappointment in pre-trial publicity and asked Judge Furgeson to sequester the courtroom from the news media. Furgeson refused. “I will tell the jury that the case will not be tried by the press,” the judge said. “I will admonish them that what is important is the evidence—not news media reports.”     Yates also objected to statements that his client was cultivating and selling marijuana from his RR 337 home in 1999 when the saga began. He said such a statement could be used to inflame the jury.     Bass countered, stating that the presence of marijuana was important to prove that Tucker was reasonable in using force.     Judge Furgeson told both attorneys that he was prepared to try a Fourth Amendment case concerning excessive force and unreasonable seizure. He said the jury should know the worst facts about Ham during the jury selection process so that jurors who did not think they could make a fair decision could dismiss themselves.     After the jury panel of 12 women and two men were seated, Furgeson told jurors that his goal was a fair trial and that he would hold them to a “reasonable person standard. Would a reasonable person have acted this way? I want these parties to have a fair trial. Find from the evidence what the facts are. Running away from a police officer by itself is not grounds for deadly force.”     During his opening statement, Yates said that he would present evidence to prove that Tucker was not in uniform when he spent the night in Ham’s house waiting for Ham to return. He said Tucker did not identify himself to Ham as an officer. “He threw Bradley to the floor and searched him, finding no weapons. Bradley was not cuffed at any time.”     Ham slipped out of the house and ran approximately 200 yards before one of the five bullets reportedly fired struck him in the leg. Tucker told Ham he had fired shots because Ham was running toward Tucker’s unlocked truck, which contained weapons. Ham replied, “You’re lying. You know I meant you no harm.”     Ham claimed he did not know sheriff department vehicles were hidden in the woods and had run past them before he was shot. The vehicles were moved before Texas Ranger Coy Smith arrived to investigate.     Bass argued that Tucker had used reasonable restraint. “Had it not been for the flight toward the vehicles, I don’t think we’d be here today. Tucker was an officer having to worry about a number of rapidly evolving events. He had to decide, ‘Do I allow this individual to continue or bring a stop to his flight?”

Case closed -- three dogs destroyed by Judith Pannebaker BCC Editor Published Jan. 17, 2008    “The dogs are just lost in all this,” observed one person who attended a Friday, Jan. 11, proceeding at the Bandera County Courthouse that was supposedly scheduled to determine the fate of a trio of purported goat-killing canines.     The “all this” to which the observer referred was the legal wrangling and verbiage, seeming confusion and magisterial insults that highlighted the two-and-a-half-hour proceeding. In the end, the dogs’ destiny was sealed and the canines, a blue heeler and two puppies, were euthanized almost immediately after the court was adjourned.     Judicial pique     Senior Judge Charles Sherrill of the 216th District Court replaced Bandera County Judge Richard Evans, who had recused himself on Dec. 27. At hearings on Dec. 20 and again on Dec. 26, Evans had issued orders for the dogs’ destruction.     During last week’s proceeding, attorney Carole Boyd assumed dual roles, representing the Cowboy Capital Pet Assistance League in a civil action that would allow the nonprofit animal rescue agency to be designated an intervener or “party of interest” in the matter. In its capacity as a no-kill animal shelter, CCPAL requested custody of the dogs. They would either adopt the dogs to families outside Bandera County or return the dogs to their owner Mark Turner and supervise their continued containment. In addition, Boyd represented Turner in both the civil and criminal matters.     From the onset, however, Sherrill attacked Boyd’s competency in a display of judicial pique that he maintained throughout the proceeding.     “Texas Rules of Procedure must be strictly followed and you have violated many rules. You can only represent one person at a time. You are representing the defendant (Turner) as well as another party of interest. I am concerned about Mr. Turner. If he is convicted, he can charge ‘incompetent counsel.’ (I believe you’re here as a) safety valve for Mr. Turner. This court doesn’t like to be set up,” Sherrill said.     He also questioned Boyd about the length of time she had been an attorney, when she had been admitted to the State Bar of Texas and even which law school she had attended.     For the record, Boyd graduated with a Doctor of Jurisprudence from New York Law School in 1983. She was licensed to practice law in Texas in 1992, but the majority of her practice – approximately 20 years – had been spent in Milford, New Jersey. In addition, Boyd has received no disciplinary actions nor has she ever been sued by a client for incompetency.     'Proceeding' continued     After reiterating, “I feel you do not understand the Texas Rules of Procedure,” Sherrill allowed the proceeding to continue, noting that Evans had previously ruled that CCPAL was not an interested party in the matter.     Recapping the Dec. 20 hearing, Boyd told the judge Turner did not have an attorney present and, in fact, had not been advised he had the right to an attorney.     She also described CCPAL as an entity that operates the county animal pound under a contract with Bandera County. After deputies with the Bandera County Sheriff’s Office impounded the three dogs accused of killing goat(s) belonging to TE “Gene” Carnes Dec. 12, CCPAL assumed responsibility for the animals’ care, which included paying for veterinarian costs not authorized by the county. As operator of the county animal pound, CCPAL had an interest in the final disposal of the animals, Boyd argued.     In addition, she said during the Dec. 20 hearing no proof had been offered indicating a goat(s) had been killed nor was any expert testimony given regarding the dangerous nature of the three dogs. Evans, she said, could have returned the dogs to Turner or ordered them destroyed. According to County Attorney Kerry Schneider, another alternative, turning the dogs over to a third party for out-of-county adoptions, was not an option because the victim, Carnes, wanted the dogs destroyed. “Judge Evans ordered the dogs destroyed,” Boyd said, adding the decision troubled both CCPAL and Turner.     However, the ordinance under which the dogs were ordered destroyed, Section 7 of the Bandera County Animal Control ordinance, does not include the so-called “third option” set forth by Schneider.     Sherrill pointed out that during a Dec. 26 hearing, CCPAL was not recognized as an intervener. “To be a portion of a lawsuit, you must petition the court. The correct procedure would have been to file a motion for a new trial, but the time’s up now.”     ‘Best be careful’     “I filed a motion for a new hearing and a stay of execution for the dogs,” Boyd insisted. During a subsequent recess, she produced paperwork that underscored her assertion.     A discussion ensued about the dogs being scheduled for destruction prior to a hearing.     According to Schneider, Turner disavowed ownership of the dogs. Impounded stray or abandoned dogs can apparently be euthanized without a hearing. However, the official complaint, signed by Deputy Shane Merritt Dec. 14, clearly lists Turner as owner of all the dogs.     In addition, Schneider inadvertently informed the court Boyd had filed for a full hearing, adding “whatever that is,” regarding the dogs’ destruction.     “Your honor, Ms. Schneider just admitted I had filed for a full hearing. Since it had not been a trial, I asked for a re-hearing,” Boyd said.     “Ma’am, if you’re trying to split terminology here, you’d best be careful,” Sherrill admonished Boyd.     The fact remains, however, judicial proceedings Dec. 20, Dec. 26 and Dec. 27 were hearings.     Neither Turner nor CCPAL were ever involved in a trial stemming from the Dec. 12 incident.     “Where is the motion for a new trial?” Sherrill continued to ask Boyd.     Boyd’s motion for a new hearing, which she filed Dec. 27, was finally located. Despite Schneider’s insistence to the contrary, the motion had been signed by Turner as required. Boyd’s pleadings included a temporary restraining order for destruction of the dogs, a full hearing with discovery, a permanent injunction against destruction of the dogs and a motion to intervene, among other pleadings.     “I ask that all pleadings be struck and move that CCPAL be held responsible for all attorney’s fees and for sanctions against Ms. Boyd,” said Schneider.     After lecturing Boyd that she could not “bootstrap what (she was) trying to do,” Sherrill ruled in favor of Schneider. In a final blow, he said, “The court does deem and find you are incompetent counsel in this matter.”     Belying his words however, Sherrill immediately allowed Boyd to represent Turner in the criminal arraignment. In addition, he suggested her name be included on a list of court-appointed attorneys for the 216th District Court.     Show of force     After conferring with Schneider and Boyd, Turner pled “no contest” to two counts of dogs running at large and failure to vaccinate them against rabies. For each count, he was fined $200 plus $156 in court costs. In addition, he must pay Carnes $368 for the dead goat(s). Eight other charges filed against Turner were dismissed.     Despite popular belief, a plea of no contest in a criminal action cannot be used against a defendant in a later civil action. Nevertheless, Boyd received a verbal agreement from Carnes that he would not file a civil suit against Turner at a later date.     Carnes is currently embroiled in a civil lawsuit against CCPAL and its Director Marlene Heavner because two dogs under the care of the animal rescue organization allegedly killed one of his goat(s) last fall. Without benefit of counsel, Heavner pled no contest to allowing the two dogs to run at large and paid a $400 fine after being assured by Schneider the plea would “make the matter go away.”     Also attending the proceeding were Bandera County Sheriff Weldon Tucker, six deputies, Jail Administrator Della Baker, Evans and 216th Assistant District Attorney Mark Shurley, self-described as doing pro bono work for the district. Sherrill characterized Shurley as attending the proceeding “to make sure this doesn’t get into district court.”     Attempting to explaining the show of force, Tucker said, “Three of the deputies were here to testify – two who responded to the original call and the other to testify on the ordinance.”     Dismissing county law enforcement officers, Sherrill said, “The officers are excused if they like. They can go back to protecting Bandera society.”     Questionable timing     The proceeding adjourned at 11:20 am. The county animal control officer reportedly left the courthouse after 11:30 am. By 12:10 pm, however, the three dogs had been delivered to a veterinary clinic on Highway 16 South and shortly thereafter were euthanized.     Questions have been raised about the timing of the transferal. The officer would have had to travel from the courthouse to the CCPAL facility on Highway 16 North by Mansfield Park, load the three dogs in his vehicle and arrive in Pipe Creek in record time, many noted.     As one person commented, “To do that, the operation would have had to run with the efficiency of a German railroad – or the hearing was just a foregone conclusion.”

CCPAL unwilling to let dogs die, while judges drop like flies by Judith Pannebaker BCC Editor Published Jan. 10, 2008    The Cowboy Capital Pet Assistance League Executive Director Marlene Heavner and General Counsel Carole Boyd might be back in court Friday, Dec. 11, attempting to save the lives of three dogs, characterized by County Attorney Kerry Schneider as "dangerous." After allegedly "exhibiting aggression toward domesticated animals," the canine trio was set to be destroyed. However, County Judge Richard Evans won't hear the case.     Recusals of Ables & Evans     On Thursday, Dec. 27, Evans recused himself without explanation — the second judge to do so after becoming involved in a controversial matter involving the popular nonprofit pet assistance organization.     On Dec. 20, County Judge Richard Evans sentenced the dogs to be euthanized after he found they had killed goats belonging to Pipe Creek resident TE "Gene" Carnes.     Carnes is also embroiled in a civil lawsuit with CCPAL and its director, Marlene Heavner. In that suit, he also alleges two dogs under the care of the animal rescue organization killed one of his goat(s).     Carnes is seeking compensation of $25,000 for exemplary damages and $50,000 as damages for private nuisance from both CCPAL and Heavner, as well as attorney's fees.     Carnes is represented by James Higdon, a partner in the San Antonio law firm of Higdon, Hardy & Zuflacht, LLP. During the litigation, 216th District Judge Stephen Ables recused himself from hearing the case after it was discovered he had been "recognized" at a series of Judicial RoundUps, fundraisers for district judge candidates. Higdon's law firm underwrites the annual Judicial RoundUps.     During a telephone interview Tuesday, Nov. 6, Ables informed the Courier of his decision to recuse himself. "I am voluntarily allowing the Chief Justice (Wallace Jefferson) of the Supreme Court to appoint a judge to hear the case," Ables said. "It will be easier to have the Chief Justice assign another judge to hear the case." He added, given the current "atmosphere," it might prove impossible for anyone involved in the case to feel they've gotten a "fair shake."     Case #2     In this second case involving Carnes, testimony was unclear as to which, if any, deputy with the Bandera County Sheriff's Office actually determined that a goat had been killed — although County Animal Control Officer Rick Neely stated a goat had been "wounded" or "injured."     However, Carnes testified that one goat had been killed and another was "critical." To Evans' query about treatment for the animal, he said he was taking care of the injured goat himself because he "couldn't afford" veterinary care.     Under oath, Carnes also claimed, "If dogs taste blood, they will continue to attack. I'm not convinced they won't attack other animals."     Carnes' "old saw" was the only testimony offered regarding the charge that the dogs were dangerous.     Schneider offered Evans the option of returning the dogs to their owner, Mark Turner, or having them destroyed. A third option, she said, would be to relocate them out of the county.     However, according to Schneider, that option could be offered as an alternative only with the concurrence of the "victim."     Carnes told the court he wanted the dogs destroyed.     In a later interview, Evans ceded the third option was not included in Section 7 of the Bandera County Animal Control ordinance.     However, he said that option had been used in the past.     Heavner also agreed the third option had been used previously.     However, according to her account, the caveat "only if the victim agrees" had never been a part of the equation. "We sent two Great Pyrenees to a rescue organization and Kerry had no problem with that. I don't understand why she trying so hard to get these dogs destroyed. It makes you wonder if there's not something else behind this."     Stay of execution     On Dec. 12, Carnes fired at six dogs he claimed had been in his pasture attacking his goats. He killed one dog outright. Another was never found and presumably had been mortally wounded. The remaining four dogs were impounded by deputies and taken to the Bandera County Animal Control Facility on Highway 16 North — a facility run by CCPAL.     Later, CCPAL volunteers discovered one of the four dogs had bled to death from an undiscovered bullet wound.     Another that had been shot in the head was taken to a local veterinarian for emergency surgery, and survived.     During the December hearing regarding the fate of his dogs, Turner was not represented by counsel, and only said repeatedly, "I don't know why you want to destroy my dogs." After receiving notices from the animal control officer about the animals running at large, Turner said although he had purchased an electric fence to contain the dogs, he had not yet installed it. He also admitted none of his animals had been vaccinated.     During a Wednesday, Dec. 26 hearing, Boyd filed a motion for a temporary restraining order to stay the dogs execution.     In turn, Schneider claimed CCPAL was not an "interested party" because the dogs were housed at the "Bandera County Animal Facility, not CCPAL."     Countering the argument, Boyd said the dog's medical treatment at the vet was paid for by CCPAL and the "Bandera County Animal Facility" and the CCPAL Center are one and the same. In addition, she said she had obtained a verbal authorization from Turner to represent him in the matter.     Boyd then requested to have a re-hearing in the original matter.     "In the (Dec. 20) hearing, the court didn't have the facts. According to ordinance 7.09, you could have turned the dogs over to CCPAL or another third party," she said. "Mr. Turner is aware he didn't say the right things to the court.     In addition, the last hearing contained no testimony that these animals are dangerous as the court ruled. Chasing a goat does not make a dog 'dangerous.' You must hear expert testimony before you can determine if a dog is dangerous."     Disinclined to see things Boyd's way, Evans granted Schneider's request to dismiss CCPAL's request for a temporary restraining order.     More hearings     That should have been that — but it wasn't.     Unwilling to leave the dogs to their fate without a fight, Boyd requested another hearing with Evans the next day — prior to a commissioners court meeting.     At that time, Evans set a fourth hearing on Jan. 11, and recused himself later that day. Ables, as presiding judge of the Sixth Administrative Judicial Region, appointed Senior District Judge of the 112th District Count Charles Sherrill to hear the matter. During the hearing, CCPAL will attempt to gain custody of the dogs belonging to Turner and relocate them out of the county, while Schneider, on behalf of Carnes, will continue to insist the dogs be destroyed. However, whether the hearing will take place tomorrow remains to be seen.     In addition, the next hearing on Carnes' lawsuit against Heavner and CCPAL has not yet been scheduled.