Judge Kelly Case declined to return to the courthouse Monday to hear a motion to quash subpoenas issued by local defense attorney Gilbert Garcia in the Child Pornography case that recently resulted in a fifth mandamus filed against the 9th District Court Judge. Despite the filing of written motions to quash the subpoenas by both the District and County Attorney and requesting a Monday afternoon hearing, Case, who was not at the courthouse, refused to return and have the hearing and allowed the subpoenas to stand.
Case recently withdrew a discovery order request by Gilbert Garcia, local defense attorney and former political opponent of Brett Ligon, to produce virtually all the documents ever produced by the local Internet Crimes Against Children Task Force. This team, which follows established National Center for Missing and Exploited Children protocols, investigates individuals that actively trade in child pornography and search the internet for underage children to lure into sexual relationships. Case withdrew the order upon the acceptance by the Court of Appeals of the fifth mandamus action filed against him by the District and County Attorney’s offices. The mandamus sought to prevent the implementation of the discovery order citing its overbroad attempt to turn over every investigation and investigative technique used by the ICAC task force.
Gilbert Garcia responded by filing a motion for a gag order in the case preventing the prosecution from making any more public comments regarding his client’s case. In addition he issued subpoenas for the elected District and County Attorneys, First Assistant Phil Grant, Bureau Chief Bill Delmore and prosecutors from the county and district attorney’s offices to appear before Judge Case in the hearing on Tuesday morning.
Both offices filed motions to quash the subpoenas. This action is designed to prevent the misuse of subpoenas by any party in a criminal case. The law requires that witnesses called to testify have material information on the specific case in question. All but one of the attorneys subpoenaed are not involved in the criminal matter and do not meet the requirements for a lawful subpoena. Judge Case’s office was approached about having an emergency hearing on the issue Monday afternoon, but Case was not in the courthouse and declined to return. He also declined to allow another sitting judge to hear the matter.
“I am concerned with the fairness of being subjected to a hearing by Mr. Garcia, my former political opponent, before a judge we’ve had to mandamus five times,” stated Brett Ligon. “The Court should always act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Wednesday, the Court of Appeals for the Ninth District of Texas in Beaumont reversed the order issued by Judge Case. The Court of Appeals held that Case correctly determined that a deadly weapon was used in the commission of the offense when he originally heard the case, and that there was no reason for him to reconsider his own ruling and to conduct a second punishment hearing.
In February of this year, Case conducted a punishment hearing without a jury and sentenced Kevin Dewayne Sneed to imprisonment for ten years, and he found that Sneed used a vehicle as a deadly weapon during a lengthy high-speed chase involving Montgomery County sheriff’s deputies. In April, Case granted the defendant’s motion for a new trial because Case believed the evidence was insufficient to support his own finding of the use of a deadly weapon, and because of his uncertainty regarding the punishment level of the offense.
The Court of Appeals stated in its opinion that Sneed did use his vehicle as a deadly weapon and that Case’s original finding on the issue was correct. The Court noted that Sneed fled at speeds in excess of 100 m.p.h., narrowly avoided collisions with other vehicles, failed to slow down or stop at intersections, and continued to flee even after he struck a curb and blew out two tires. Sneed eventually abandoned his vehicle in the parking lot of a nightclub and was arrested after a foot chase.
The Court of Appeals also held that Sneed was correctly prosecuted for a felony of the third degree. The 2011 Legislature amended the evading arrest statute several times, but only the last of the amendments affected the punishment range, making a first offense in a vehicle a third degree felony.
This was the second time the State has successfully appealed one of Case’s orders. In February of this year, the Texas Court of Criminal Appeals reversed Case’s order for additional DNA testing in the Larry Ray Swearingen capital murder. In addition, Case has been the subject of five mandamus proceedings, three of which resulted in the Court of Appeals finding that Case was required to withdraw unlawful orders. A fourth mandamus petition was dismissed after Case withdrew his own order, and a fifth remains pending in the Court of Appeals.
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