State of Texas v. Charles Herr

March 27-28, 2017

Charles Anthony Herr, 24 years-old, sits next to his defense attorneys Ryan Kreck and Eddie Cawlfield at the Collin County Courthouse, awaiting the jury to reach a verdict for his trial.

While initially appearing as an open and shut case, certain revelations have left the ultimate decision of the jurors anyone’s guess.

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Judge David Rippel presided over this case.

Herr is being charged with driving while intoxicated after being arrested on the night of April 14, 2016. Herr was reportedly speeding at around 55 mph on a 45 mph street, a few blocks from the shops of legacy – a district in Plano that offers shopping, bars and restaurants. After noticing Herr’s vehicle not come to a complete stop when turning on a red light, and then speeding by a construction zone, officer William Dover of the Plano Police Department pulled the vehicle over. Smelling alcohol coming off of Herr’s person, Dover conducted a field sobriety test. Concluding the test, Herr was arrested for DWI.

After arriving at the police station, Herr refused to have his blood alcohol concentration (BAC) tested, upon which a warrant was requested and granted roughly three hours later. Weeks later after Herr’s blood was tested, it was revealed to have a BAC of .137, well over the legal limit.

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The bar Herr supposedly was drinking at.

The two state prosecutors, Courtney Floyd and Emily Doron, call their first witness to the stand: officer William Dover. The state prosecutors go over the events of that April night with the police officer, emphasizing and discussing any abnormalities with Herr’s behavior.

“[He was] trying to hand me his license [right away], which is out of the norm.” said Dover. “[I] smelled the odor [of alcohol].”

Dover said that Herr was overly chatty, and that he spoke “thick tongued.” He also mentions how Herr took a selfie with the officer, which he thought was out of the ordinary. Dover explains the tests he asked Herr to perform, being the nystagmus test (eye test), the walk and turn test, the one leg stand test, all part of standardized sobriety testing. Dover also had Herr perform the alphabet test (recieting the alphabet from a certain letter to a certain letter without singing), and counting backwards, both of which are not standardized.

“He didn’t touch heel to toe,” said Dover, speaking to one misstep on the walk and turn test. “[but] he did… rather well.”

The only test Herr did not pass was the nystagmus test – Dover noted the jerkiness of his eye movement, something he compared to the movement of obstructed windshield wipers.

The state prosecutors argued that due to Herr’s past military service, he was exceptionally coordinated, thus explaining away his passing of the majority of the sobriety tests.

The defense objects to this argument, stating that claim was pure speculation, and that Dover has no education or training to speak on the validity of such a claim. The judge calls both the defense and the prosecution to the stand, and white noise is then played over the loudspeaker to drown out their discussion.

The defense then cross examines Dover, and brings up an important moment in the arrest video. After the last sobriety test had been issued to Herr in the arrest video, Dover is seen walking towards his police car, and can be heard saying “[He did well], but I don’t know.”

This, the defense argues, is clearly a sign of reasonable doubt, exhibited by the arresting officer at the scene, and thus, this reasonable doubt should be shared by the members of the jury.

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Eye jerkiness is involuntary, making nystagmus tests virtually impossible to ‘beat.’

The state prosecutors bring their second and final witness to the stand, Nirav Kumar, who works at forensics with the Texas Department of Public Safety. The prosecution asks the witness if it could be possible that Herr’s BAC could have been below a .08 at the time of arrest.

“Yes, it’s possible,” said Kumar. “If it was beer, it would have to be a significant amount.”

The prosecution continues to ask Kumar a series of questions, building the validity and accuracy of the testing he performs.

The Defense, in cross examination, argues that despite the accuracy of the testing, the margin of error that was self-admitted by Kumar further fuels a reasonable doubt that Herr was intoxicated while he was operating his vehicle.

And after about 9 hours after the trial had started, it was adjourned for the day, to be picked up the following Tuesday morning at 9:00 AM.

At 9:00 AM, Tuesday, the trial continues. One of the six jurors reported having stomach pains and was in the hospital – after a short deliberation, both the defense and the prosecution agree to continue the trial with only five jurors.

The prosecution opens with their closing statement.

“This case is about intoxication,” said Doron. “Honestly, it’s not really in question.”

Doron says that the BAC reading of .137 speaks for itself, and reminds the jurors that during voir dire (the preliminary examination of a witness or a juror), most agreed that a BAC of .08 or higher would be all they needed to reach a guilty verdict.

Kreck then approaches the jury.

“This is a case that’s gonna show you how easy it is to be arrested [in Collin County for DWI],” Kreck said. “He passed those tests with flying colors. Sounds like reasonable doubt to me.”

The prosecution, in its final rebuttal, attacks Kreck for his phrasing.

“I believe, I believe, I believe (mimicking Keck’s closing statement),” said Doron. “You know what doesn’t matter in here? What he believes. He didn’t have his normal faculties. What matters is that score.”

Lastly, she brings up the fact that Herr misplaced his heel slightly more than half an inch away from his toes on his other foot during the walk and turn test.

“[Kreck said] it’s just half an inch,” said Doron. “Half an inch [while operating the gas peddle] is a matter of life and death.”

The jury was then dismissed to deliberate in their quarters. After quite a long deliberation, the jury reached a verdict. They found the defendant guilty. Herr was sentenced to 180 days in jail, and will be required to have a deep lung device (essentially requiring the passing of a breathalyzer to start a motor vehicle) to be installed in his vehicle. Herr will also have to serve community service, and attend alcohol education classes.

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Digging for Gold

Two young men rummage through a large steel container, as a nearby door suddenly swings open. The two men bolt down the street to escape.

This is not a bank robbery, but rather a fairly common occurrence in the city of McKinney – this is dumpster diving.

“I’ve dumpster dived probably… twelve times,” says Addison, who’s asked for his identity to remain anonymous.

“One time we made a huge score, and found an entire duffel bag’s worth of albums from the 70s.”

Addison has been scalping tossed away goods for years, and continues to do so to this day.

It’s not without its risks, however. A state ordinance in McKinney that pertains to solid waste states in section 86-36 that “meddling with garbage, recyclables, rubbish, brush or collection containers or receptacles by any person other than the owner, occupant or authorized agent is prohibited.”

While prohibited by law in the city, McKinney has seen a recent spike in dumpster diving occurrences, specifically at a string of stores located off of Highway 75 and Eldorado Parkway, with targets usually being GameStop or Half Price Books

“[It happens] more than we would like,” says Emily Bruce, in charge of corporate communications at Half Price Books.

“While [the trash] may appear usable to people, it’s in there for a reason. We don’t want injuries.”

Half Price Books has supposedly gone to destroying the items in the dumpster, according to Addison. After nearly escaping being caught one night, Addison returned to the dumpster hours later one night.

“We came back around two in the morning,” Addison says. “And the albums… they were all soaked in water. It warped the covering and all the albums… we think that was intentional.”

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These businesses, with their often valuable trash, have seen a spike in dumpster divers

 

With limited space inside the stores, these businesses have no choice but to leave their dumpsters sitting out back, which gives easy access to would-be trash thieves.

While many argue against the policies on the grounds of not letting products go to waste, Half Price Books’ Emily Bruce says they do their best to make good use of unsellable or discarded merchandise.

“[We] try and donate everything we can that we cannot sell – we try and recycle books in that case.”

The dumpster divers themselves point out they still see perfectly usable items in the dumpster with alarming frequency.

“I found a copy of Final Fantasy VII,” Addison says, speaking of his hauls.

“My friend found a copy of Grand Theft Auto Vice City.”

Addison’s friend, Mason, joins him on occasion in scouring trash receptacles.

“I could understand if it was like a nuisance, like they were scaring people or leaving a mess,” says Mason, talking about his thoughts on laws against his hobby.

“It’s not causing much harm… I don’t see the real reason [for the laws].”

Both Mason and Addison continue dumpster diving to this day, and McKinney businesses have yet to come up with an effective solution.

Emily Bruce says when catching someone digging through Half Price Books’ garbage, their policy is to simply “ask them to please stop.” That policy might change soon, given its apparent ineffectiveness.

Not a single ticket or arrest has been issued in McKinney for dumpster diving in the last five years, but with the growing popularity of the hobby, that may change, and fairly soon.

 

Interviews of the dumpster divers can be found here.

Reader’s Guide To Your Representative In Congress, Samuel Robert Johnson

Samuel Robert Johnson

Republican

86 Years-old

Served in Congress since 1991 (25 years)

3rd Congressional District of Texas (includes Collin County)

Sam Johnson sits on the following committees:

House Committee on Ways and Means
Chairman, Subcommittee on Social Security
Member, Subcommittee on Health
Joint Committee on Taxation

Top 3 contributors, entire career:

National Auto Dealers Assn   $116,500 

American Bankers Assn         $111,383

National Assn of Realtors      $100,750

Top 3 contributors, 2016:

Raytheon Co                               $15,000

National Assn of Realtors      $14,500

Lockheed Martin                       $14,000

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An interesting point to note is Sam Johnson’s support of Bill H.R.3808 – which “directs the Federal Housing Finance Agency to withdraw its proposed rule entitled “Members of Federal Home Loan Banks.”” This rule mandated that FHLBank members would have to “maintain ongoing minimum levels of investment in specified residential mortgage assets as a condition of remaining eligible for membership.” Coincidentally, or perhaps not so, the American Bankers Association, who collectively have donated over $100,000 to Sam Johnson, is an FHLBank member.

H.R.354, otherwise known as the Defund Planned Parenthood Act of 2017, proposes to not mandate any federal funds to any purpose of Planned Parenthood Federation of America Inc. As might be expected, this proposed piece of legislation has come under fire from many critics. Sam Johnson is a well-known opponent of abortion, and supports this act, which was introduced in house 01/06/17.

H.R.377, the Muslim Brotherhood Terrorist Designation Act of 2017, also came under fire, which was supported by Sam Johnson. Introduced on 01/09/17, it aims to label the Muslim Brotherhood as a terrorist organization.

H.R.400, the Stop Dangerous Sanctuary Cities Act, is also supported by Sam Johnson. Introduced 01/10/17, the bill “prohibits a sanctuary jurisdiction from receiving grants under certain Economic Development Assistance Programs and the Community Development Block Grant Program.”