The Johnson County attorney is dismissing its driving while intoxicated case against Tarrant County state District Judge Elizabeth Berry.
County Attorney Bill Moore’s decision to drop the case comes after the 10th Court of Appeals dismissed his appeal of a lower court ruling that threw out blood tests taken after she was arrested last year.
"After reviewing the evidence, we determined that because of the ruling on the suppression of the blood test, our only alternative is to dismiss the case against Elizabeth Berry," Moore said. "Our opinion was that we could not prove DWI/open container beyond a reasonable doubt without the blood test."
Moore filed the dismissal on Tuesday after the Waco appeals court tossed out his appeal on a technicality because Moore did not sign the required notice of appeal. An assistant county attorney signed the document.
Moore could have filed an appeal with the Texas Court of Criminal Appeals in Austin.
Berry was charged with misdemeanor DWI based on the results of a blood draw taken three hours after she was arrested Nov. 8 by Alvarado police. Officers said she was driving 92 mph in a 65-mph zone on Interstate 35W when they stopped her.
Moore has refused to release the blood test results. In Texas, drivers with a blood-alcohol level of 0.08 are considered intoxicated.
After a three-hour hearing in January, Senior Judge Robert Dohoney ruled that the results could not be used to try Berry on the DWI charge because the facts cited by the arresting officer were not enough to support the search warrant granted by a judge to obtain her blood.
Berry, 44, announced in June that she will not seek re-election when her four-year term expires next year. She has presided over Criminal District Court No. 3 since 2003.
Since her arrest, Berry has transferred all alcohol-related cases in her court to another judge.
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Monday, September 28, 2009
Monday, September 7, 2009
DA Peck reviews allegations of prisoner beaten by prison guards
Westmoreland County District Attorney John Peck said he is reviewing a report of an internal investigation into the alleged beating of an inmate in the county prison this month before deciding whether a criminal probe is warranted.
A sergeant, two corrections officers and a former guard are under investigation by prison officials for allegedly assaulting James Edwards, 27, of Austin, Texas, who claims he was beaten by guards in the middle of the night in a counselor's room, out of sight of video cameras.
After the incident, Edwards was returned to Texas on a parole violation. He has since been released from prison.
"As soon as I get the report, I'll look at it," Peck said. "We'll read the report and make a decision whether a future investigation needs to be done. I am aware of the incident. The warden told me they have a truthful account of what occurred.
"The warden called and gave me a thumbnail sketch of what occurred," Peck said. "We have to learn the extent of his injuries. This is a big issue in deciding if it could be simple assault or aggravated assault."
The beating allegedly occurred June 5. Peck said he wasn't notified until June 17.
Warden John Walton said he didn't notify Peck until the investigation was completed.
"We don't notify the DA until we're done," Walton said.
The warden would not say whether any disciplinary action has been taken against the guards.
Commissioner Tom Ceraso, chairman of the county's prison board, said he can't comment on a personnel issue.
"I can't comment about anything that's going on at the jail," Ceraso said.
Edwards' mother, Patty Varhola of New Kensington, said her son had a warrant issued against him for a technical parole violation after he missed an appointment with his parole officer. Edwards had served part of a 10-year sentence in a Texas prison on a charge of attempted capital murder, according to court records.
Edwards was involved in a New Kensington drug ring in 2001 and traveled to Texas with another man to buy drugs, court records show. There was a shootout between Edwards' companion and a drug dealer, who was wounded.
Edwards was arrested in 2001 and sentenced in 2003 in Travis County, Texas. His sentence was set to expire in 2013, court records show.
Edwards left Texas to visit Varhola, who was a patient at the Alle-Kiski Medical Center in Natrona Heights, his mother said. While he was in the area, Edwards was stopped by Upper Burrell Police. They discovered the outstanding warrant and took him to the New Kensington Police Station, then to the county lockup, she said.
She said the beating incident occurred after officers found some inmates smoking, a violation of prison policy, and ordered them to return to their cells. Edwards protested, saying he wasn't smoking, and asked if he could remain outside his cell.
Varhola said officers came to her son's cell late that night, took him to a counselor's office and ordered him to put his hands over his head. Then they handcuffed him and took turns beating and choking him, allegedly slamming his head against a desk, Edwards said.
Varhola said her son weighs 130 pounds and has "mental health issues" but is not violent.
"He's very frail," she added.
Peck's office has investigated a number of allegations of assaults on inmates — some of them mentally ill — by guards over the past several years. Only one has been successfully prosecuted.
In February, a former guard pleaded guilty to charges of official oppression for forcing inmates to kneel, bark like dogs and sing nursery rhymes.
Source
A sergeant, two corrections officers and a former guard are under investigation by prison officials for allegedly assaulting James Edwards, 27, of Austin, Texas, who claims he was beaten by guards in the middle of the night in a counselor's room, out of sight of video cameras.
After the incident, Edwards was returned to Texas on a parole violation. He has since been released from prison.
"As soon as I get the report, I'll look at it," Peck said. "We'll read the report and make a decision whether a future investigation needs to be done. I am aware of the incident. The warden told me they have a truthful account of what occurred.
"The warden called and gave me a thumbnail sketch of what occurred," Peck said. "We have to learn the extent of his injuries. This is a big issue in deciding if it could be simple assault or aggravated assault."
The beating allegedly occurred June 5. Peck said he wasn't notified until June 17.
Warden John Walton said he didn't notify Peck until the investigation was completed.
"We don't notify the DA until we're done," Walton said.
The warden would not say whether any disciplinary action has been taken against the guards.
Commissioner Tom Ceraso, chairman of the county's prison board, said he can't comment on a personnel issue.
"I can't comment about anything that's going on at the jail," Ceraso said.
Edwards' mother, Patty Varhola of New Kensington, said her son had a warrant issued against him for a technical parole violation after he missed an appointment with his parole officer. Edwards had served part of a 10-year sentence in a Texas prison on a charge of attempted capital murder, according to court records.
Edwards was involved in a New Kensington drug ring in 2001 and traveled to Texas with another man to buy drugs, court records show. There was a shootout between Edwards' companion and a drug dealer, who was wounded.
Edwards was arrested in 2001 and sentenced in 2003 in Travis County, Texas. His sentence was set to expire in 2013, court records show.
Edwards left Texas to visit Varhola, who was a patient at the Alle-Kiski Medical Center in Natrona Heights, his mother said. While he was in the area, Edwards was stopped by Upper Burrell Police. They discovered the outstanding warrant and took him to the New Kensington Police Station, then to the county lockup, she said.
She said the beating incident occurred after officers found some inmates smoking, a violation of prison policy, and ordered them to return to their cells. Edwards protested, saying he wasn't smoking, and asked if he could remain outside his cell.
Varhola said officers came to her son's cell late that night, took him to a counselor's office and ordered him to put his hands over his head. Then they handcuffed him and took turns beating and choking him, allegedly slamming his head against a desk, Edwards said.
Varhola said her son weighs 130 pounds and has "mental health issues" but is not violent.
"He's very frail," she added.
Peck's office has investigated a number of allegations of assaults on inmates — some of them mentally ill — by guards over the past several years. Only one has been successfully prosecuted.
In February, a former guard pleaded guilty to charges of official oppression for forcing inmates to kneel, bark like dogs and sing nursery rhymes.
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