AUSTIN (Nexstar) — After her coma, Michele Gonzales spent months relearning how to walk, eat and talk. The accident that nearly left her dead unfolded in seconds, as she walked across the parking lot of a south Austin gas station.
Video of the incident, captured at 2 a.m. on Feb. 8, 2018, shows Gonzales illuminated for a moment by the headlights of Adam Bryant Marsh’s Dodge pickup just before she’s hit.
Midway through a wide turn around the gas pumps, Marsh’s truck slams squarely into Gonzales, her head barely above the hood of his lifted pickup. The truck pops up twice, as Marsh’s front and back tires roll over and crush Gonzales’ body. Then, the truck is gone. Marsh, a 33-year-old Austin Independent School District police officer at the time, did not stop or call 911.
Gonzales will never fully heal. She was disfigured and continues to suffer medical problems, according to a pending civil lawsuit against Marsh.
Robert McCabe, an attorney representing Marsh, previously said Marsh never saw Gonzales and didn’t know he’d hit anyone. It wasn’t until weeks later, as the police searched for the truck and driver and news stations including KXAN began airing footage of the incident, that Marsh realized what had happened. He then turned himself in and voluntarily resigned from AISD PD, McCabe said.
Five months after the gas station incident, Marsh was indicted in Travis County on a third-degree felony — accident involving serious bodily injury — punishable by two to 10 years in prison.
But the sentencing judge didn’t order Marsh to serve any time behind bars. Instead, Marsh pleaded no contest and accepted a plea agreement that included three years deferred adjudication, 80 hours of community service and the permanent surrender of his peace officer license, barring him from ever working as a police officer in Texas again, according to court records.
Gonzales said the sentence was “not enough.”
“I want to know why I was treated like absolutely nothing, like my life had no meaning,” she said at Marsh’s January 2020 sentencing hearing. Gonzales has sued Marsh in civil court, and the case remains pending.
Marsh could not be reached for comment for this report. However, Marsh’s attorney provided a statement concerning the license surrender.
“The incident had no connection to his job as a peace officer. Despite that, for whatever reason, it was critically important to the complainant (Gonzales) in that case that Mr. Marsh not be a police officer any longer. Given the remaining favorable parameters of the plea offer that we negotiated, volunteering to permanently surrender his peace officers license was acceptable to Mr. Marsh. Jail time was never negotiated away in exchange for the surrender,” McCabe wrote in a statement to KXAN.
Austin ISD did not provide comment concerning Marsh’s tenure with the district or his resignation. “Only comment is to confirm that the officer is no longer an employee at AISD,” wrote Scott Thomas, AISD’s Assistant Director of Public Affairs and Operations, in an email responding to a request for comment.
Gonzales’ concern with the severity of Marsh’s sentence, and Marsh’s plea bargain involving the surrender of his peace officer license, is not isolated.
In a 2019 investigation, KXAN reviewed nearly 300 permanent surrender cases and found most involved a criminal charge or allegation of criminal misconduct. In most cases, the accused officers and jailers negotiated plea bargains and rarely spent time behind bars. In some cases, officers were allowed to surrender their license to stop criminal investigations by their own department, meaning they were never arrested or charged with a crime.
In a follow up investigation, KXAN found 145 more permanent surrenders, from late 2018 though spring of 2021, follow a similar pattern. Peace officers charged with serious crimes — including felonies for violent offenses, sex crimes or abuses of official power — continue to bargain their badges and few serve time in prison.
Out of 145 cases, 109 officers took plea agreements. In 32 remaining cases, it is not clear if a plea agreement was reached or an officer faced jail time. KXAN found only seven cases in which a licensed officer was sentenced to jail or prison–three of those sentences were for three days in county jail, two were jail sentences of less than six months and only one case, a seven year sentence, involved prison.
In Jefferson County a police officer working at Beaumont United High School was indicted in April 2019 for “deviate sexual intercourse” with a student. He was charged with improper relationship with a student, a second-degree felony punishable by two decades in prison. He accepted a plea deal, surrendered his license and got 10 years deferred adjudication. He was not sentenced to prison and was not required to register as a sex offender, according to court records.
In Brown County, a jailer was arrested for having sex with a person incarcerated in the jail. The jailer was charged with violating that person’s civil rights and faced up to two years behind bars for the state jail felony. The jailer took a plea deal, surrendered his license and received five years of deferred adjudication, according to court records.
Many of these plea bargain cases have happened in Central Texas, as well. Alan Dieguez, a former El Paso police officer, was accused of speeding at approximately 100 mph with a blood-alcohol level twice the legal limit and crashing his car into the back of an 18-wheeler on Interstate-35 in Williamson County on June 21, 2016.
The driver of the semi-truck that was hit, 56-year-old Dane Rutter, got out and was struck and killed by a separate 18-wheeler that lost control after hitting debris from the initial wreck. Investigators believe Rutter was trying to check on Dieguez and possibly render aid, according to district court records and state trooper dashcam video of the crash’s aftermath.
Rutter’s daughter, Michelle Postert, said her dad was a hunter, a fisherman, a trucker and an “awesome guy.”
“My father was very loved … He is very missed,” Postert said. “He was a person. He wasn’t just somebody that got ran over.”
Postert and her dad lived next door to one another in Stockdale, a small town about 40 miles southeast of San Antonio. Postert said they spoke daily. She was not surprised to learn her dad had exited his truck, apparently to help Dieguez, because he had been an EMT at one time.
“He would help anybody. If you were standing on the side of the road, he would stop and help you,” Postert said.
The Williamson County grand jury indicted Dieguez on a single count of intoxication manslaughter in October 2018. He faced between two and 20 years in prison, but a plea agreement with the Williamson County District Attorney’s Office allowed Dieguez to avoid prison.
“The case wasn’t strong enough for a conviction,” Dieguez told KXAN in an April 6 phone call. When asked why he decided to plead guilty in May 2019, Dieguez said he “Had a kid on the way” and “didn’t want to take the chances” of a prison sentence that could’ve stretched two decades.
“I had a 50/50 chance of getting sentenced by people who don’t know me and that’s a big risk,” Dieguez said in the call.
The judge sentenced Dieguez to eight years of community supervision and permanently stripped his peace officer license. In an unusual twist, KXAN’s investigation discovered Dieguez was sentenced to 120 days in the Williamson County Jail, but there is no record in either Williamson County or El Paso County of Dieguez serving that time.
For Postert, the punishment was never adequate.
“I think they let him go because he was a cop,” Postert said. “If it would have been you or I, I don’t believe we would have got the same treatment.”
Williamson County District Attorney Shawn Dick said the facts of the Dieguez case were more complicated than his being a police officer and the importance of his TCOLE license. Dieguez was technically not the person who directly killed Rutter, but “his actions set in place a chain of events that led to the victim’s death,” Dick said. He believes the state likely would have had trouble convincing a jury to convict Dieguez on an involuntary manslaughter charge related to Rutter’s death. Instead, they settled the case with a plea agreement.
The El Paso Police Department terminated Dieguez’s employment May 13, 2019 — five days after Dieguez pleaded guilty to the second-degree felony. The termination notice KXAN obtained from the department said Dieguez’s off-duty drunk driving crash in Williamson County and his guilty plea to intoxication manslaughter violated the city’s policies and regulations and “brought discredit to the department,” according to a termination notice signed by EPPD Chief Greg Allen.
Experts in police licensing and officials in district attorneys’ offices in Travis, Williamson and Bexar counties have told KXAN this system of plea bargains and permanent surrenders is a consequence of the Texas Commission on Law Enforcement’s limited authority to revoke licenses.
Dick said taking an officer’s badge does become part of the calculation in handling these cases. But a better system would give that administrative authority to TCOLE. Dick acknowledged TCOLE can strip an officer’s license, but that “authority is very limited and used very infrequently.”
“I think if TCOLE were able to handle those problems, you would get a lot more immediate response from law enforcement agencies and you could really eliminate problem officers sooner and quicker and not jeopardize cases — not jeopardize the community,” Dick said. “The vast majority of police officers are doing it right. The vast majority of prosecutors are doing it right. But when prosecutors or police officers do something wrong, they need to be held to account. Otherwise, the public loses faith in everything we do — in our whole system.”
In a previous interview, former Travis County District Attorney Margaret Moore, who lost her post in 2020, said taking police officers to a trial is a “huge gamble.” Losing at trial can mean those officers are free to go back to policing.
Representatives of the law enforcement community, like Kevin Lawrence, agreed that bad officers exist and should be removed from law enforcement. Lawrence is executive director of Texas Municipal Police Association, TMPA, a major police union in the state representing 30,000 municipal peace officers.
“Nobody hates a bad cop more than a good cop. And being a bad cop is not limited to just committing criminal offenses. There are some people who are just not cut out for this business,” Lawrence said.
But, he said, Texas should be cautious about giving TCOLE authority that could undermine officers’ due process rights. If TCOLE were given more authority to revoke a license, that process “should include due process, and it should include standardized provisions about what constitutes cause,” he added.
TCOLE’s authority to permanently revoke a peace officer’s license is mostly confined to cases of officers convicted of felony or certain misdemeanors, or being placed on community supervision, according to state administrative code. There are some exceptions; for example, a license can be revoked for repeatedly failing to obtain continuing education, a dishonorable military discharge or making a false report to TCOLE.
The problem with restricting a licensing authority’s revocation power, Becar said, “is that an officer can commit a lot of misconduct that never rises to a felony.”
When officers are fired rather than stripped of their license, they can continue working and move to another department that is often smaller, said Roger Goldman, a law professor at St. Louis University School of Law and a nationally recognized expert on police licensing.
Goldman called them “wandering officers,” referencing a term coined by two professors, Ben Grunwald and John Rappaport, in their 2020 study of the phenomenon of roving cops with troubled work histories. Goldman said he believes it is the largest study of the issue ever undertaken.
Grunwald and Rappaport examined 98,000 full time Florida law enforcement officers over a 30-year period, according to their Yale Law Journal article. They found an average of about 1,100 previously fired officers in any given year were working for a Florida law enforcement agency. Those fired officers struggled to find new work and typically moved to smaller agencies with fewer resources, the report found. It also said those smaller agencies tended to police areas with slightly larger communities of color.
“Wandering officers are more likely than both officers hired as rookies and those hired as veterans who have never been fired to be fired from their next job or to receive a complaint for a ‘moral character violation,’” according to the article. “These results suggest that wandering officers may pose serious risks, particularly given how difficult it is to fire a police officer.”
Goldman said it is the best interests of good officers to weed out “bad apples” that can bring disrepute on an agency.
Kim Vickers, executive director of TCOLE and President of IADLEST, echoed that sentiment.
“I may be a little blunt with this, but we’ve got people out there that don’t need to be wearing a badge and a gun, and I truly believe that in my heart.”KIM VICKERS, TCOLE EXECUTIVE DIRECTOR
“We’ve got to sit here, and our job is to regulate that, and we’re kind of hamstrung a little bit as to what we can do on some of that,” Vickers added.
Outside of an adjudication in a criminal case, Vickers said TCOLE has little authority to revoke an officer’s license. Though Vickers said he considers Texas a leader in law enforcement, “in this particular area, in my opinion, we’ve fallen behind.”
There are currently two bills working through the state legislature that could further empower TCOLE. Vickers said he is “excited” about potential improvements.
State Sen. Juan “Chuy” Hinojosa, D-McAllen, authored SB 485. The legislation would direct TCOLE to make policies for investigating licensed officers for disciplinary action, issue subpoenas, temporarily suspend a license on an emergency basis and revoke a license for “improper or unlawful acts in connection with employment as an officer that could result in a miscarriage of justice or discrimination.” The bill specifies a list of such acts that includes using excessive force on multiple occasions and several other potentially illegal acts.
Hinojosa’s bill has not gotten a public hearing as of mid-April.
Rep. John Cyrier’s bill, HB 1550, which also impact’s TCOLE’s regulator authority, has gotten a hearing.
Cyrier, a Lockhart Republican, chairs the House Sunset Commission. That commission reviews state agencies and recommends improvements to them or abolishing ones that are no longer relevant. TCOLE has been in sunset evaluation, and Cyrier said his bill addresses problems discovered during that process.
At an April 1 hearing before the House Homeland Security and Public Safety Committee, Cyrier testified on his bill. He said the Sunset Commission probe found TCOLE “has no meaningful role in enforcing standards of conduct or establishing disciplinary standards of conduct for law enforcement,” and “the state’s current regulation is toothless and fragmented with poor accountability, a lack of statewide standards and outdated training.”
In a word, Cyrier called TCOLE “broken.”
Regarding changes to TCOLE’s ability to revoke a peace officer’s license, the main difference between the mechanics of two bills is that Hinojosa’s would directly enact statewide changes and bolster TCOLE’s authority.
Should those bills pass, TCOLE could get more authority to delicense officers, but the bills face tough questions and opposition from some in the law enforcement community.
Had TCOLE the ability to delicense officers for misconduct, many of the cases reviewed by KXAN may not have had the permanent surrender baked into the plea agreement. For example, in the case of Alan Dieguez in Williamson County, TCOLE may have stripped the former El Paso police officer’s license after his blood-alcohol level was found to be over twice the legal limit.
Without a change to Texas’ law, and TCOLE’s authority, that bargaining power Dieguez had will remain. The pattern KXAN discovered of hundreds of officers using their badges in plea deals will continue.
Cartel concerns grow amid surge of children at the border
As the state struggles to find resources for families seeking asylum, Nexstar’s Border Report found out some children are being flown to California by the federal government.
Law enforcement in South Texas is stretched thin as the number of children and families crossing the border increase. March saw a 100% increase from February in unaccompanied minors crossing the Mexican border, according to U.S. Customs and Border Protection.
Senator John Cornyn, R-Texas, said he’s working on bi-partisan legislation in Washington, D.C., to address the border crisis. Cornyn aims to create a system that allows judges to hear children’s cases quickly while the children are in an immigration facility.
Cornyn has also expressed concern about the role cartels play in the recent migration surge.
“This is a very sophisticated criminal organization that is running people and drugs across the United States, across the border into the United States,” Cornyn said. “For example, one reason they are flooding with so many children is because they know the Border Patrol will have to come off the front line. Meanwhile, they drug cartels run drugs, methamphetamine, heroin, fentanyl, and the like, into the United States through those openings. And frankly, this is all about money for them and is part of a global smuggling enterprise that makes them rich.”
Governor Greg Abbott called on President Joe Biden to designate Mexican drug cartels as foreign terrorists. In a letter addressed to Biden and Vice President Kamala Harris, Abbott described all the reasons he requested this immediate action.
“These cartels bring terror into our communities,” Abbott wrote. “They smuggle narcotics and weapons into the United States to fund their illegal enterprises. They force women and children into human and sex trafficking – enriching themselves on the misery and enslavement of immigrants. They murder innocent people, including women and children. These Mexican drug cartels are foreign terrorist organizations, and it is time for the federal government to designate them as such.”
Designating Mexican drug cartels as foreign terrorists could give the government the ability to apply enhanced legal pressure on these criminal groups.
Border Report learned that cartels use different colored wristbands to distinguish the people they are smuggling into the United States. Border Patrol agents in La Joya, Texas, discovered these wristbands on migrants they apprehended.
Representative Henry Cuellar, D-Texas, told Border Report that the colors and wording on the bracelets represent how many chances a person has left and if they owe money. Different colors indicate how many times a person has tried to cross the border.
“First time crossers get red bracelets. If unsuccessful, they get another color,” Cuellar’s office said in an email to Border Report. “Aliens receive purple bracelets when it’s their last chance to cross. The wording represents who has paid and who still owes money for the smuggling.”
When a person pays a coyote, or human trafficker, to help them cross the Rio Grande, they typically get three tries to cross the border
The wristbands also have words on them, such as “entregas,” meaning deliveries, “entregadas,” meaning delivered, or “llegadas,” meaning arrivals.
Migrants told Sandra Sanchez from Border Report, who broke the story, that different colored wristbands also represent the different cartels they paid.
Bill aims to better track data on moms dying, barely surviving childbirth
Jamie Brown-Rosas had a healthy pregnancy and didn’t think she would have any complications delivering her baby girl.
But she quickly realized something was wrong right before her delivery in June of 2018. She remembers being told that she couldn’t get an epidural because her blood platelets were severely low and she was at risk of bleeding out.
“When they’re telling you all of this, you’re just, you don’t even know what to say. You have a baby you’re trying to deliver, and they’re giving you all this information and it’s the first time you’re hearing it. So, it’s very scary,” explained Brown-Rosas.
The former Austin resident now lives outside of Houston and was diagnosed with HELLP syndrome during the birth of her daughter. It would be a complication that would reappear again during the delivery of her second child, a baby boy.
According to the March of Dimes, HELLP syndrome is a serious pregnancy complication that affects the blood and liver. HELLP stands for hemolysis, elevated liver enzymes, and a low platelet count.
“You think this is a completely natural occurrence to, to be pregnant and to have your baby in the hospital. And when it’s not, it’s very scary and it’s even scarier when you could possibly lose your life, lose your baby,” said the mom.
The complication is one State Rep. Shawn Thierry, D-Houston, said should be tracked by the state.
She refiled a bill this session that would create the development of a work group to establish the first statewide, online maternal mortality and morbidity data registry.
The work group would include members with appropriate expertise including physicians, an epidemiologist and a number of others with experience in maternal health.
The web portal would collect and store data from hospitals and other health care providers across the state on deaths during or within one year of delivery and near deaths.
KXAN’s “Mothers Erased” investigation in 2019 highlighted problems with how the state tracks maternal deaths and near-deaths data.
“We had inconsistent data in Texas. The collection process was not the same,” explained Thierry. “For example, if a woman died 43 days after giving birth that was not considered a maternal mortality whereas the woman who died 42 days before would be.”
House Bill 136 would require that data to be collected on a daily basis and would also include the most high-risk conditions and complications. Demographic data and patients health benefit coverage status would also be detailed.
The Department of State Health Services would oversee the data registry.
“If we do not begin to use a uniform process and start to collect this data in real time, we’re going to be talking about this for years to come – decades we’ll still be talking about the maternal and morbidity rates in Texas,” said Thierry.
The bill was referred to the Public Health Committee in late February, but there wasn’t much other movement.
A hearing is now scheduled for Wednesday, April 21st at 8 a.m. It comes a week after KXAN filed this update regarding the bill.
Thierry is hopeful and pushing for the bill to make it out of committee and to Gov. Greg Abbott’s desk. Last session, the bill cleared the same committee but never made it to the full chamber.
“We’ve still got a little time but the clock is ticking for session,” said Thierry.
She said funding for the bill would come out of the state budget which already has set aside money for improving maternal health.
Thierry explained that the data can lead to programs and services to improve outcomes.
“I’ve lived this and at the time – when in 2012 – when I had my daughter and almost lost my life, I had no idea what the statistics were,” said Thierry. I didn’t know that Black women were three times more likely to die in childbirth. I didn’t know that all women in Texas were dying at higher rates than women around the country.”
She explained that the pandemic has really shown the importance of prioritizing women’s health.
After her HELLP syndrome diagnosis during the birth of her daughter, Brown-Rosas said she was closely monitored during her second pregnancy.
Though she said she was more prepared she ended up having an emergency C-section during her baby boy’s delivery six months ago.
Once again her blood platelets dipped low and this time the umbilical cord was also wrapped around the baby.
“I do remember laying on the operating table, wondering if him and I were gonna make it,” said Brown Rosas. “So, it’s intense.”
The mom is grateful that she and her babies survived complications twice.
She is now pushing for more awareness and believes a data registry would give moms like her a better idea of what’s happening statewide with deaths and complications.
“Knowledge is power, so we need it,” said Brown-Rosas.
Permitless carry gun legislation moves forward
On Friday, House lawmakers approved a bill that would allow Texans over 21 to carry a gun without a license. House Bill 1927 now heads to the Texas Senate.
Under HB 1927, authored by Texas Rep. Matt Shaefer, R-Tyler, Texas will no longer require a permit or training that current is needed to carry a gun in public. Although many Texas gun owners support this legislation, the bill is getting a lot of criticism from law enforcement agencies.
Supporters, like Rick Rinehart, a gun owner from Pflugerville, rallied to support the constitutional carry legislation.
“If the federal government says that you can own that gun, you should be able to carry that gun,” Rinehart said.
The lawmaker behind this legislation says it won’t change who is allowed to purchase a firearm, calling it common sense gun legislation.
“People who are prohibited from possessing a handgun will still be prohibited from possessing a handgun,” Shaefer said during discussion of the bill on Thursday.
Ed Scruggs of Texas Gun Sense fired back saying, “True, but it’s a lot easier for a felon or someone who shouldn’t have a firearm to obtain that weapon and to carry it into a public space.”
On Tuesday, police associations from across Texas held a press conference to voice their opposition to this legislation. Without a requirement for licenses, police say it’s nearly impossible to know if a gun is legally owned when responding to an incident.
Kevin Lawrence of the Texas Municipal Police Association says he’s not against Texans legally carrying guns, but there should be a vetting process.
“If you’re a convicted felon, if you’re under the age of 21, if you have diagnosed violent mental disability, you cannot carry a gun,” Lawrence said. “Somebody’s got to enforce that.”
“The vetting shouldn’t be done by the street cop at three o’clock in the morning,” Lawrence added.
While Republicans continue pushing “back-the-blue” legislation, they’re in opposition of the cops on this matter. Scruggs said this makes it seem more like a political matter than a public safety matter.
“Here you have the public safety officers that you claim to fully support telling you, this will make us less safe, and yet you’re going to ignore what they say,” Scruggs said.
Schaefer said the push-back on this bill isn’t anything new, but he spoke with officers in his district who support constitutional carry.
“Those same organizations said the same thing about the open carry law that we passed several years ago,” Schaefer said. “And none of their predictions have come true.”
During the long back and forth on the House floor, Texas Democrats offered nearly 20 amendments to the bill. Most amendments were rejected, including one attempting to keep guns away from white supremacists.
Many lawmakers were frustrated in light of recent mass shootings. Texas Rep. Lina Ortega, D-El Paso, recalled promises made by Gov. Greg Abbott after 2019’s deadly Walmart shooting in her district.
“I think that everybody in the delegation has been fighting hard to actually do something to have the state of Texas recognize and the governor do what he promised us that he was going to actually take action,” Ortega said.
“Shortly after this horrific incident occurred in Walmart, in August of 2019. [Abbott] was out in El Paso shortly after it happened,” Ortega added. “And he came back in September and we had roundtable discussions. And we were promised that even though there may not be a special session to address it, he promised us that things would take place during this session that will assist and stop this from happening in the future. What we’re seeing here today is completely, completely contrary to what was promised.”
Texas House members will soon consider another gun rights bill introduced by GOP state lawmakers to prohibit state agencies and local governments from enforcing new federal gun laws or rules. This is part of Abbott’s pledge to make Texas a “Second Amendment sanctuary state,” after President Joe Biden introduced a series of gun control related executive actions last week.