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More discovery disputes bog down Carrizal trial

Testimony in the trial of Jacob Carrizal — the first biker to be prosecuted in the Twin Peaks shootout — ended Monday as it began, with Carrizal’s attorney alleging the state’s repeated late disclosure of evidence she already has requested is unjust, “criminal and intentional.”

Carrizal’s attorney, Casie Gotro, has lodged numerous complaints for months about prosecutors not providing her with evidence in the case despite their continual assertions that everything has been provided to her or does not exist.

On Monday, Gotro asked the judge to dismiss the case because of prosecutorial misconduct and alleged prosecutors willfully have hidden evidence from her that she is entitled to and requested long ago.

Judge Matt Johnson of Waco’s 54th State District Court denied her motion to dismiss the charges, but ordered the state to turn over the latest round of statements, which were not provided to the state by local, state and federal authorities because they alleged the information was privileged because they were trying to protect confidential sources.

One of the statements was brought to the judge’s attention Friday morning. He listened to it in his chambers and ordered the state to supply it to Gotro by 5 p.m. Friday.

That discovery was made while the trial was on a two-day break so Gotro would have time to review another round of statements that were not turned over to her until three weeks into the trial.

Johnson ordered a hearing for 8 a.m. Monday to try to sort through the discovery conflicts, meeting with Assistant U.S. Attorneys Mark Frazier and Greg Gloff and an attorney for the Department of Public Safety in his office. The judge ordered all statements turned over to Gotro, despite unwillingness by the DPS to waive its privilege claim.

The judge gave Gotro 45 minutes Monday morning to review the statements before she gave a brief opening statement and started calling defense witnesses.

Before Gotro started her break, she asked the judge to dismiss the charges based on the claims of prosecutorial misconduct. She has not asked for a mistrial.

Gotro argued that District Attorney Abel Reyna and prosecutors Michael Jarrett and Amanda Dillon were in a room when a Cossack provided exculpatory evidence she had not been provided. She said they were aware of the statements and willfully failed to divulge the information to the defense.

Jarrett countered that he and Reyna left the room because they knew the man was lying. However, Gotro argued that the state has an obligation to provide the materials to the defense and does not get to decide what to turn over based on whether they think someone is credible or not.

As the bickering between Gotro and Jarrett intensified, Gotro stormed out of the courtroom during a break, yelling over her shoulder that the prosecutors’ actions are “criminal and intentional. It’s criminal.”

After the jury was recessed Monday evening, Gotro continued her objections to the state’s late discovery practices. She said she would have changed the way she cross-examined a number of the state’s witnesses had she known of the Cossack’s statement that the whole beef with the Bandidos had nothing to do with the “Texas” bottom rocker patch on the back of their vests.

The state contends that the Bandidos are the controlling biker group in Texas and other groups must get their permission if they want to wear the “Texas” patch on their vests.

Prosecutors have said the Cossacks were challenging the Bandidos by wearing the rocker patches without permission, causing several skirmishes around the state between the groups before the May 17, 2015, shootout at the former Twin Peaks restaurant in Waco that left nine dead and 20 injured.

Jarrett assured Gotro on Monday that if she wants to cross-examine any of the state’s witnesses again, they will be available to her.

Before the jury came in Monday morning, the defense asked the judge to grant an instructed verdict of not guilty, saying the state failed in its burden to tie Carrizal to the murders of nine bikers as alleged in the indictment.

Gotro called Waco police Detective Jeff Rogers, the department’s street gang investigator, as her first witness.

Rogers said he considers the Bandidos a criminal street gang, but he could not list any crimes Carrizal has been involved in before he got to Twin Peaks. Gotro asked what crime he committed at Twin Peaks, and Rogers said he sent text messages to members to rally in Waco, he told them to bring their guns and leave their women at home and he came here knowing there was high potential for a fight with the Cossacks.

Gotro asked Rogers about interviews he had with a Cossack named Mark White in April and May of 2015. Rogers said White was arrested before for unlawfully carrying a weapon and Rogers told White he would personally take his case to the DA and let him know he was cooperating with police.

Rogers said in the weeks leading up to the May 2015 meeting at Twin Peaks, he became concerned that there would be violence because of previous conflicts between the two groups, including one in Lorena.

On the day of the biker meeting at Twin Peaks, he and other officers from Waco and the DPS went to Twin Peaks in hopes that an obvious police presence would deter any violence.

He said the hair stood up on the back of his neck with he saw that the patio area had been taken over by a horde of Cossacks, who were not members of the biker coalition meeting that day.

Gotro asked why he didn’t take some action to break up the meeting if he felt so strongly that something bad was about to happen.

“I don’t have an answer for that, ma’am,” Rogers said.

Rogers said he saw the Bandidos ride in and the Cossacks streamed from the patio area and surrounded them before they had time to park their bikes. He said he saw a Cossack push someone, saw a fist raised in the air and go downward and then heard the first shot, which he said came from the “middle of the pack.”

He got out of his car because he thought it was struck by several bullets, but it was the car next to his, he said.

Under cross-examination from Jarrett, Rogers said White, like Carrizal, is charged with engaging in organized criminal activity from the Twin Peaks shootout and he deserves to go to prison, also.

Jarrett asked Rogers if he had the authority to get a warrant before the Twin Peaks incident, to shut down the restaurant that day or to run the bikers out of town. The detective said no.

In other defense testimony Monday, Gotro called Yvonne Reeves, whose son, Richard Jordan Jr., a Cossack, was killed at Twin Peaks. Her husband, Owen Reeves, also a Cossack, called her and told her her son had been shot at Twin Peaks, she said, frequently becoming overcome with emotion.

Reeves said she was on her way to the meeting at Twin Peaks but was delayed by some friends .

She said the Cossacks were not members of the biker confederation and she did not know why they were going to the meeting .

She said after her husband called, she went to Twin Peaks to try to find her 31-year-old son. However, police held her back and she spent most of the day in the shopping center parking lot trying to get news about her son. She said the next time she spoke to her husband, he was calling from jail after he had been treated at a hospital because he was struck in the head and had convulsions.

Defense testimony resumes at 9 a.m. Tuesday.

Couple to bring Southwest food, local beer to historic Sturgis House downtown

Tesla’s Café and Coffee Pub, a Southwestern-style eatery that’s about to open in the historic Sturgis House on Washington Avenue, is the culmination of one woman’s dream.

Not a dream in the sense of a long-held ambition, mind you, but a literal dream.

Margaret Smelser, co-owner of the new business, had never entertained fantasies of being in the restaurant business before she and her boyfriend, Heath Collard, began their move to Waco earlier this year from Las Cruces, New Mexico. Collard planned to continue his career as a massage therapist. Smelser already had a successful dog kennel business and thought she would do something entrepreneurial here. But not a restaurant, until her subconscious mind told her otherwise.

“In March, I had a dream that I was working behind a counter of a café that served sandwiches, had white dishes, had a long countertop, front porch just like this, and it was a Victorian house,” she said, standing on the wooden porch of the 1887 brick home.

She recounted how Collard had been looking for a location to lease for his massage practice. Texas Star Properties, owner of an old house he wanted to lease on Columbus Avenue, decided to turn that house into a vacation rental, but the firm’s owners steered him to the Sturgis home at 1316 Washington Avenue.

He called up Smelser, and she was smitten.

“I said, ‘This is it, this is the house,’ ” Smelser said. “Right then and there, we said, ‘We’ll take it.’ ”

Since then, the couple has been renovating the kitchen, dreaming up a menu and negotiating the rules of operating a modern business in a 19th-century state historic landmark.

The house and associated servants quarters were originally built by James N. Harris, with 13-inch solid walls made of handmade Brazos River brick. The family of James H. Carroll bought the house in 1912, and it long served as home of Waco civic leaders Carroll and Frances Sturgis.

A 1963 article boasted that the house had 28 windows with the original cypress wood shutters, and it was of “such sound and sensible construction that the owner has found no major renovation necessary.”

The house finally did get a major restoration in 1983, when attorneys Lyndon and Charles Olson turned it into their law office. Since then it has served as Brazos House Bed and Breakfast and as various professional offices.

Collard said the house already had a commercial kitchen from its days as an inn. The couple plans to make few changes to the building, other than the addition of a handicap-accessible ramp. They will decorate the interior with a “steampunk” aesthetic, a tongue-in-cheek style that incorporates futuristic fantasies from a century or more ago.

The name of the café refers to the same man as the name of the electric car company: Nikola Tesla, the inventor and futurist who competed with Thomas Edison in harnessing the potential of electricity.

They plan to serve coffee from a roaster in Crawford and beer from Waco-based Bare Arms Brewing Co., along with homemade lemonade and sun tea.

They’re planning a simple lunch and breakfast menu that includes Belgian waffles, homemade stuffed pita bread, bratwurst, a boneless rib sandwich and Southwestern-style pozole, a stew of hominy, pork and New Mexico chiles. They will also hold special dinners, sometimes incorporating the outside of the property.

Collard said he expects the establishment to be a quiet, low-key place to gather or just hang out.

He is planning to maintain his licensing as a massage therapist, but for now he’ll focus on the business and the family.

Collard and Smelser are raising four children between them, ages 8 to 14, and the children are the main reason they moved to Waco.

Natives of New Mexico, they decided to do a nationwide search for a place that has good schools and a climate that is warm but not dusty.

“We were tired of eating dirt,” Collard said.

After some research they ruled out Hawaii because the public schools were lacking, and California, because real estate was too expensive.

A farm and ranch website led them to a house and some acreage in China Spring that is big enough for their family and horses.

“We looked at the ratings for the schools and said, ‘Wow, the schools are really good. Let’s make a trip to China Spring,’ ” Smelser said. “So we made a trip to China Spring. It was true. They’re great schools with great staff and great teachers. They really had it together.”

Waco ISD superintendent discusses repurposing 5 campuses, possible nonprofit partnerships to save schools

As Superintendent A. Marcus Nelson started his last of three community meetings about contingency plans for five schools on the verge of closure, he dove into deeper details about what realigning campuses or nonprofit partnerships could look like if the schools don’t pass state standards again in May.

He reiterated the options under state law for a third time Monday at the Cen-Tex Hispanic Chamber of Commerce, and focused on what’s next for his administration and the Waco ISD school board between now and January.

“We want to be emphatically clear, there’s a change coming to Waco ISD and it is intended to improve the organization,” Nelson said. “No matter what school we have in our organization, all of our schools can do better. With these rising levels of accountability coming from the Texas Education Agency, urban school districts are going to have to be more fierce in our expectations and how we go about doing our business, but we’re not going to be able to do it alone.”

Alta Vista Elementary School, Brook Avenue Elementary School, J.H. Hines Elementary School, G.W. Carver Middle School and Indian Spring Middle School have failed state academic standards for five consecutive years or more.

If the five schools don’t meet state accountability ratings in May, a 2015 law requires the campuses to close or the district’s elected school board to be replaced with state appointees. Again, Nelson said, Texas Education Agency officials told the district replacing the school board isn’t an option because the board is considered one of the top in the state. The district received the application for an alternative plan last week and administrators are looking over the application process, he said.

But a law passed this year gives districts a chance to come up with an alternative plan to keep the schools open another two years if approved by the state.

“They’re going to have to take these schools out of my dead, cold hands,” Nelson told a full crowd.

Waco ISD must come up with a plan for the school board to approve in January and submit to the state in February. If it doesn’t, the state will take it to mean Waco ISD isn’t proactively pursuing changes. Under the new law, Waco ISD can repurpose schools with a new campus ID number, effectively making them new schools, create partnerships with a for-profit charter school or create a partnership with a nonprofit group, Nelson said.

But Nelson has already said surrendering to a for-profit charter school system wasn’t an option, so the other options have included repurposing campuses.

“I’m looking at the community of Waco, and I’m like, ‘Do you understand how unacceptable it would be in Waco ISD if we just closed two middle schools next fall?’ ” Nelson said. “Where are they going to go? What the state of Texas wants me to do is put them on buses and send them to Tennyson (Middle School) and put portables up and send them to Tennyson.

“I’m willing to bet if I looked at the history of Waco ISD, there was a time when we did that in the ’50s or the ’60s. I’m not busing kids from South Waco or East Waco to another school, so it’s harder for their parents to be engaged. It’s harder for their parents to get to school. ... We’re not going backward.”

The five campuses serve an estimated 2,400 students. Waco ISD students are resilient and diversity is Waco’s strength, Nelson said.

In his first two meetings, he presented the initial idea of considering making both middle schools single-gender campuses, creating a sixth-grade center. But after community feedback, he said the district might be hesitant to pursue the option.

Nelson said he would give single-gender campuses 24 months to improve before possibly considering another change, but emphasized any plan the district goes with to change campuses would be a plan that would show improvement.

Nelson also proposed realigning J.H. Hines and South Waco elementaries to serve prekindergarten through second grade, while Alta Vista and Brook Avenue could be realigned to serve third through fifth grades.

Bryan Dalco, pastor of One Fellowship United Methodist Church and volunteer at South Waco Elementary encouraged residents to take action in their schools on a regular basis. He also asked several questions on behalf of South Waco residents about the possible realignment plan, including why his campus was part of the discussion when it’s considered successful by the state.

“I challenge everyone here to not just show up to these meetings, but to be actively engaged in these schools,” Dalco said. “They really need you there. ... Everybody needs to be there. This is Waco’s problem, not just the school board’s and not just the superintendent’s problem.”

Nelson responded by saying South Waco would be involved in the realignment because its location would allow for a central location for help from nonprofits and to avoid the possibility of busing students across Interstate 35.

As for nonprofits, Nelson said he believes Waco has several viable options that could help the district accomplish its goals, including the United Way of Waco-McLennan County, Prosper Waco and others.

“I really don’t know how we’ll do this planning with a nonprofit, and then dealing with it once our schools make it. I haven’t got that far yet,” Nelson said. “But I know right now we spend every day working in our campuses as if our schools are going to make it. It’s just the administration at the senior level that’s working on some of these contingency plans in the event we don’t.”

Realistically, the effort would take the collaborative work of many organizations to support students and family, Prosper Waco Executive Director Matthew Polk stated in an email to the Tribune-Herald on Friday. If Prosper Waco is asked to formally partner with Waco ISD to help operate the campuses, the collaborative nonprofit would do so as a backbone organization that helps pull resources together in innovative ways, Polk stated.

“A significant part of the Prosper Waco effort over the last three years has been to partner with and support Waco ISD (and other local districts) in improving education outcomes for Waco kids. Our board has told Dr. Nelson that we’re ready to step up that partnership however needed to serve students on the campuses that could be closed if they fail to meet state standards this school year,” Polk wrote.

From here, discussion about an alternative plan for the five campuses will be on every school board agenda between now and January before the board makes a final decision, Nelson said. District officials will also reach out to transformation committee members for feedback.

Waco ISD is also pushing for more family engagement focused on improving literacy gaps at all levels, the district’s biggest challenge going into 2020, Nelson said last week. The district will host a literacy night 6 p.m. Tuesday at Waco High and University High for parents from feeder elementary schools to learn how they can help their children at home.

The next school board meeting is scheduled for 6 p.m. Nov. 16 at the at the Waco ISD Conference Center, 115 S. Fifth St.

“I knew what I signed up for, and I want this for Waco. I want Waco to want this as bad as I want this for us,” Nelson said. “I want us to boldly proclaim in the same newspaper that puts on the front page, ‘Closure looms,’ ‘Sky’s falling,’ – I want that same newspaper to put, ‘Oh my, they made it.’ Our principals and teachers will tell you, our kids understand this, and our kids want their schools to stay open. We need to help them. We need to help them accomplish that task.”

Baylor ordered in lawsuit to disclose medical, counseling records of assault victims

In a Monday morning legal blow in a Title IX lawsuit filed by 10 former students, a federal judge ordered Baylor University to disclose several years’ worth of certain pieces of medical and counseling records of all female students who reported they were sexually assaulted while attending the school.

The records are “indisputably important,” U.S. District Judge Robert Pitman wrote, to the claims of the 10 women suing Baylor who were allegedly denied educational opportunities after their assaults.

Unlikely to be available for public viewing, the records will contain detailed spreadsheets describing the reports women made to Baylor medical and counseling officials since 2006 and 2009, respectively, because the university began electronically storing the records at those times.

The spreadsheets will include the reports themselves, the dates of said reports, the dates of the assaults, whether the alleged assailants were Baylor students and the gender of the alleged assailants.

For months, Baylor has fought to protect these records. The university had signaled an intention to seek a higher court ruling on whether the records be made discoverable, but a mandamus brief to the 5th U.S. Circuit Court of Appeals has not yet been filed.

A Baylor spokesman said the university continues to have ongoing concerns about the confidentiality of student records unrelated to the case.

Pitman, however, wrote that the records would not include “personally identifiable information” — such as the names of the alleged victims — thus making the privacy statutes inapplicable.

The allegations of the 10 women have moved forward on the claim that Baylor had an official policy of discrimination that created a heightened risk of sexual assault. Pitman agrees with the plaintiffs’ claim that “accurate numbers of the extent of sexual assaults on campus go to the heart of the enhanced risk case.”

Waco attorney Jim Dunnam, who represents the 10 plaintiffs, declined to comment on the ruling.

Pitman has already ruled Baylor must disclose information found in the Pepper Hamilton LLP investigation, which led to top-level dismissals at the school and several lawsuits and investigations into how the university handled reports of sexual violence by students. Several top Baylor officials face depositions, Dunnam disclosed in a motion last week.

Sheriff: Double-homicide victims were 'targeted'

A 24-year-old mother and her 1-year-old daughter were victims of a “targeted” attack near a park site outside of Hallsburg on Sunday afternoon, McLennan County Sheriff Parnell McNamara said Monday.

The bodies of Valarie Martinez and her infant daughter, Azariah, were found at McLennan Park 3, near Tradinghouse Creek Reservoir, shortly before 1:30 p.m. Sunday. Authorities found Martinez shot to death outside of a car while her daughter was found shot to death while she was still buckled into a car seat in the car.

“This was not a random act and we believe these people were targeted,” McNamara said. “We are working around the clock on this thing and we have a lot of detectives and officers assigned to it.”

Investigators worked throughout the night after the “heartbreaking” double homicide was discovered, McNamara said. No arrests were made overnight as detectives continue to look into the circumstances around the pair’s deaths.

According to the Texas penal code, the death of one or more people during the same criminal transaction makes a suspect eligible for a charge of capital murder. The murder of a person under the age of 10 years old also makes a suspect eligible for a charge of capital murder.

“We have had leads come in from the public and the media. We are following up on all of them,” McNamara said.

A candlelight vigil has been organized for 6 p.m. Sunday at the park, off Willbanks Drive near the waterfront.