Mesquite police retaliate against local woman

Undercover police officers lie. That's their job. They create a persona and use it to gain entree into a world of lawlessness.

But where does the lying stop? Does it stop after the bust? After the offense report? After taking an oath to tell the truth on the stand? Or after the trial is over?

Melissa Walthall of Mesquite, Texas, had a friend who was upset at the testimony of an undercover narcotics officer. And, when Ms. Walthall came across a picture of the officer on a flyer, she posted it on Facebook with the caption "Anyone know this b****?"

Mesquite Police weren't amused. Investigators decided that Ms. Walthall's message posed a "viable threat to the officer's safety" so they charged her with felony retaliation.

Sec. 36.06. OBSTRUCTION OR RETALIATION. (a) [amended 9/1/97] A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or status of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime.
(b) For purposes of this section, "informant" means a person who has communicated information to the government in connection with any governmental function.
(c) An offense under this section is a felony of the third degree.

But what exactly did Ms. Walthall do wrong? She didn't harm the officer. She didn't threaten to harm the officer. She didn't ask anyone else to harm the officer. She just posted a picture she saw on a flyer and called the officer a bad name.

Yes, she busted the officer's cover. But so freaking what? He works undercover - that's one of the hazards of his job.

In order to convict Ms. Walthall, the government must first prove that she meant to harm or threaten to harm the officer. The government must then prove that she meant to harm or cause harm through an unlawful act.

I don't think the government can even prove the mens rea of the crime. She posted a picture with a derogatory caption. There was no threat in the caption. Moreover, there was no unlawful act. It's not against the law to post the picture of an undercover officer. Nor should it be against the law.

Ms. Walthall has a right under the First Amendment to speak freely. Her posting of the picture with the caption is clearly an act of speech. That act of speech is protected under the Bill of Rights. The actions of the Mesquite Police Department were clearly retaliatory.

The police are using their badges and guns to quell speech with which they don't agree. She was arrested for constitutionally protected activity by officers acting under color of law. That sounds like official oppression to me.

§ 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office 

or employment commits an offense if he: (1) intentionally subjects another to

 mistreatment or to arrest, detention, search, seizure, dispossession, assessment,
 or lien that he knows is unlawful; (2) intentionally denies or impedes another in
 the exercise or enjoyment of any right, privilege, power, or immunity, knowing
 his conduct is unlawful; or (3) intentionally subjects another to sexual
 harassment.

But what's the likelihood that anyone up there is going to have the guts to do the right thing and charge the officers with the crime?

The investigators are aware that we all enjoy the right to speech free from government restriction under the First Amendment. The act of arresting Ms. Walthall impeded her ability to enjoy her right to free speech. What could be clearer? The action could also set the department up for a civil rights lawsuit under Chapter 1983.

The actions of the police in Mesquite were illegal and thuggish and were designed to discourage people from exercising their right to free speech. Thuggery is always the last resort for those who know they can't make a logical argument in defense of their actions.

When is a horse a motor vehicle?

In the State of Texas, a motorist commits the offense of driving while intoxicated if he operates a motor vehicle in a public place.

Motor vehicle is defined in the Texas Penal Code as "a device in, on or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks."

Recently in Austin, two men were arrested for DWI when police discovered they were riding a horse and a mule down Sixth Street (perfectly legal in Austin) while drunk. While it is pretty clear from the video that at least one of the men is not, shall we say, in complete control of his faculties, did they commit a criminal offense?

While the definition of motor vehicle in Texas is quite broad in scope, a horse or a mule is not "a device." There's also the issue of whether or not a motor vehicle must have a motor. To claim that a horse is a motor vehicle is absurd given the principle that every word in a statute means something.

So, the Austin Police Department charged two individuals with a crime they didn't commit and that the state can never prove, just to get some publicity. It would seem that if anyone is charged with a criminal offense it should be the police officers who should be charged with official oppression for subjecting an individual to an arrest that the officer knew was unlawful.

Convicted judge resigns from bench

Donald Jackson is now a former judge having submitted his resignation earlier today. For those of you wanting to know the fate of the complaining witness, Ms. Ariana Venegas, her DWI case is still pending almost a year after being filed.

She was granted a personal bond, however.

If you live in a glass house...

The sad saga of Judge Donald Jackson took an odd turn yesterday when an attorney representing Ariana Venegas fired off a letter to Judge Jackson's attorneys and the press demanding a formal apology for his actions - and the fact that his attorneys presented a vigorous defense in court.

The irony is that Ms. Venegas' attorney, Mr. Rob Todd, is a former city councilman in Houston who carried on an affair with another (former) councilman's wife while serving on city council.

Mr. Todd has threatened to file suit against the county, Judge Jackson and his attorneys should his client not receive the requested apology by 5:00 p.m. this afternoon.

Is this the future of litigation - threatening to file defamation suits against criminal defendants who put on a defense at trial? Or is Mr. Todd trying to drum up business now that tort reform has all but killed off personal injury and medical malpractice work in Harris County?

Harris County judge sentenced to 30 days in jail

In a sad end to a judicial career, Judge Donald Jackson, who was convicted of official oppression last Friday, was sentenced to 2 years probation, with 30 days in the county jail as a condition, fined $4,000 and ordered to perform 200 hours of community service for trying to solicit a romantic relationship from a DWI client in exchange for appointing her a new attorney.

“We are all tarnished by your stupidity." Judge Mark Kent Ellis

Judge Ellis also ruled that Jackson must leave the bench pending appeal.

The State of Texas v. Donald Wayne Jackson

This the language of the indictment in Cause No. 1230102; The State of Texas v. Donald Wayne Jackson; In the 351st Judicial District Court of Harris County, Texas:

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, DONALD WAYNE JACKSON, hereafter styled the Defendant, heretofore on or about FEBRUARY 19, 2009, did then and there unlawfully, while a public servant acting under color of his office and employment, namely THE JUDGE OF COUNTY CRIMINAL COURT AT LAW NO. 3 OF HARRIS COUNTY, TEXAS, intentionally subject __________ hereafter styled the Complainant, to sexual harassment, to-wit UNWELCOME SEXUAL ADVANCES submission to which was EXPLICITLY AND IMPLICITLY made a term and condition of the Complainant’s exercise and enjoyment of a RIGHT AND PRIVILEGE by OFFERING TO GET THE COMPLAINANT A DIFFERENT ATTORNEY TO GET HER CASE DISMISSED IF SHE WOULD BE INTERESTED IN THE DEFENDANT AND ENTER INTO A RELATIONSHIP WITH HIM THAT WAS MORE THAN A ONE-NIGHT STAND.

It is further presented that in Harris County, Texas, DONALD WAYNE JACKSON, hereafter styled the Defendant, heretofore on or about FEBRUARY 19, 2009, did then and there unlawfully, while a public servant acting under color of his office and employment, namely THE JUDGE OF COUNTY CRIMINAL COURT AT LAW NO. 3 OF HARRIS COUNTY, TEXAS, intentionally subject __________ hereafter styled the Complainant, to sexual harassment, to-wit REQUEST FOR SEXUAL FAVORS submission to which was EXPLICITLY AND IMPLICITLY made a term and condition of the Complainant’s exercise and enjoyment of a RIGHT AND PRIVILEGE by OFFERING TO GET THE COMPLAINANT A DIFFERENT ATTORNEY TO GET HER CASE DISMISSED IF SHE WOULD BE INTERESTED IN THE DEFENDANT AND ENTER INTO A RELATIONSHIP WITH HIM THAT WAS MORE THAN A ONE-NIGHT STAND.

It is further presented that in Harris County, Texas, DONALD WAYNE JACKSON, hereafter styled the Defendant, heretofore on or about FEBRUARY 19, 2009, did then and there unlawfully, while a public servant acting under color of his office and employment, namely THE JUDGE OF COUNTY CRIMINAL COURT AT LAW NO. 3 OF HARRIS COUNTY, TEXAS, intentionally subject __________ hereafter styled the Complainant, to sexual harassment, to-wit VERBAL CONDUCT OF A SEXUAL NATURE submission to which was EXPLICITLY AND IMPLICITLY made a term and condition of the Complainant’s exercise and enjoyment of a RIGHT AND PRIVILEGE by OFFERING TO GET THE COMPLAINANT A DIFFERENT ATTORNEY TO GET HER CASE DISMISSED IF SHE WOULD BE INTERESTED IN THE DEFENDANT AND ENTER INTO A RELATIONSHIP WITH HIM THAT WAS MORE THAN A ONE-NIGHT STAND.

AGAINST THE PEACE AND DIGNITY OF THE STATE.

It makes one wonder if the rumors earlier this month regarding Judge Jackson's supposed resignation were actually the terms of a proposed plea bargain. Was Judge Jackson afforded the opportunity to resign his bench in exchange for the matter being dropped?

Not being one to say "I told you so," but...

Well, it appears that, in the end, I was right. Okay, he hasn't resigned but a special judge is being appointed to sit in his court after this morning's bombshell.

I received a phone call from a reporter at KHOU-TV at lunchtime today asking me whether I knew if Judge Donald Jackson was resigning from the bench after being indicted for misdemeanor official oppression.

So, Mr. Anonymous (and since there are at least two of y'all, I don't know who is who), I'll toss your snarky comment back at you...

Anonymous said...

Not sure where you get your information, but to my knowledge and resources, Judge Jackson has not resigned. It may be wise to get the facts with confirmation before spreading defaming blotter about an elected official. It is obvious you wanted to be the one to 'break the news' as if you are some sort of an insider, but instead, you 'broke' the law!

Section 39.03 of the Texas Penal Code defines the offense of official oppression.

A public servant acting under color of his office or employment commits an offense if he...intentionally subjects another to sexual harassment.

Allegedly telling a defendant that things would go much easier if she laid down seems to fall under the category of "unwelcome sexual advances, request for sexual favors, or other verbal of physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power or immunity, either explicitly or implicitly." (Texas Penal Code Section 39.03(c)).

Official oppression is a Class A misdemeanor carrying a maximum punishment of up to one year in the county jail and a fine of up to $4,000.