NEW BOSTON, Texas-A Bowie County judge declined to grant a change of venue in the capital murder trial of a Texas prison inmate accused of beating a correctional officer to death at the Telford Unit in New Boston last year.
Billy Joel Tracy, 38, faces death or life without the possibility of parole if convicted of capital murder in the July 15, 2015, death of Timothy Davison. Tracy allegedly slipped a hand free of its cuff and grabbed a metal tray slot bar from Davison which officers use to manipulate the opening in cell doors, wielding it like a baseball bat to strike him again and again in full view of multiple prison surveillance cameras.
Earlier this month, Tracy's lawyers, Mac Cobb of Mount Pleasant, Texas, and Jeff Harrelson of Texarkana, filed a motion for a change of venue, complaining that pretrial publicity has made it impossible for the accused inmate to get a fair shake from a jury in Bowie County. Assistant District Attorney Kelley Crisp filed a response opposing the defense's motion noting that none of the news coverage, be it print, television or online, has published false information.
At a hearing Friday, Harrelson called defense investigator Brent McQueen to testify. McQueen said 12 articles have been published in the Texarkana Gazette which outline the allegations against Tracy, summarize his criminal history and report his disciplinary problems while in prison. McQueen said social media posts in response to the Gazette's and other news outlet's coverage are particularly concerning, because knowing how many people have read the at times inflammatory posts is nearly impossible.
Under cross examination by Crisp, McQueen conceded that none of the information published in the Gazette or on a popular online local news site has been inaccurate. Crisp also pointed out that stories online in the area about a car crashing into a local bar appear to have gotten more "hits" than stories about Tracy's capital murder case.
McQueen testified that in-court photos taken at several of Tracy's pretrial hearings depict him in prison attire, cuffs, and shackles, while being escorted by a security team. Such images might lead a prospective juror to the opinion that Tracy is a dangerous man before hearing testimony, Harrelson argued.
Harrelson also questioned McQueen about the makeup of Bowie County's citizenry, from whom a jury will be chosen if Tracy is tried in the county where Davison was murdered. McQueen testified that the area is home to many correctional workers because there are two prisons and numerous jails. Harrelson argued that people working in the field of corrections might be more likely to harbor bias against an inmate. Crisp pointed out that the county has prosecuted not only inmates accused of misconduct while behind bars, but their keepers as well.
Bowie County Judge James Carlow testified for the state that of the county's roughly 100,000 residents, only a small percentage are employed at the Telford Unit. Under questioning from Harrelson, Carlow denied that the county's financial concerns would lead to administrative pressure to keep a trial in Bowie County. When a case is tried in another county, the expense of housing, feeding and transporting numerous court staffers, judicial staff and the defendant can be quite high.
"I'm the only one in the county who worries about that (the financial cost of a change of venue)," Carlow said. "The court is not concerned with that."
Carlow and Precinct 2 County Commissioner Tom Whitten testified that none of their constituents have contacted them asking about the case. Carlow said other cases, including the courthouse basement shooting of a deputy several years ago, generated far more community conversation.
At the end of the arguments concerning venue, 102nd District Judge Bobby Lockhart tabled the defense's motion though he said he hasn't "closed the door on it." Lockhart said that if potential jurors appear to be tainted by media coverage during jury selection next year, the venue motion could be granted.
Tracy's case was scheduled for jury selection in February. Earlier this month the defense filed a motion asking for a continuance that spells out why Tracy's team needs more time to prepare. Lockhart granted the motion and moved jury selection to September 2017 despite strong objections from Crisp and District Attorney Jerry Rochelle.
"For the record judge, we're ready," Rochelle said. "We're ready next week, we're ready in February."
Crisp said the February date was specifically chosen by the defense and that changing the date "undoes" a tremendous amount of leg work by the state which must now be repeated. Lockhart said he felt the defense's request was based on valid concerns and granted the continuance.
One of the last issues addressed at Friday's hearing were motions filed by Tracy "pro se," or on his own behalf. Defendants are supposed to let their lawyers file motions in their cases unless they are representing themselves. Crisp said Tracy's motions put the state and defense in a tough spot.
"He doesn't have the right to hybrid representation," Crisp said. "It is going to create problems for the state and defense if I have to respond to his motions."
Rochelle pointed out that the state is prohibited from communicating with a defendant who has a lawyer unless instructed to do so by the court.
Lockhart began to gently admonish Tracy about the stakes in his case and adhering to the rules of court procedure when Tracy, who had sat quietly for nearly two hours, boomed, "They're not following the rules."
Apparently at least one of Tracy's motions, which have not been publicly filed yet, concern a manual typewriter, a hot pot and Ramen noodles confiscated from his cell the day of Davison's murder. The typewriter was seized as evidence and sent to the state's crime lab for analysis. Lockhart said that Tracy's motion concerning it complains that it impedes his ability to communicate with his lawyers though he noted an obvious flaw to Tracy's complaints when he pointed out the motions Tracy has been filing are typed.
Crisp said a motion from Tracy for a speedy trial is particularly concerning. Cobb and Harrelson asked recently for a months-long delay in the trial setting. Crisp argued that Tracy could claim on appeal that he wanted quicker justice but it was denied him by his own legal team.
Tracy has a long history of violence both in and out of prison. Tracy's prison history began in 1995 when he was just 18 and sentenced to a three-year term for retaliation in Tarrant County. Three years later, in 1998, Tracy was sentenced to life with the possibility of parole, plus 20 years for burglary, aggravated assault and assault on a public servant in Rockwall County.
In 2005, Tracy received an additional 45-year term for stabbing a guard with a homemade weapon at a TDCJ unit in Amarillo. Tracy was sentenced to 10 years in 2009 for attacking a guard at a TDCJ unit in Abilene.
Tracy's violent behavior toward prison staff led to his placement in administrative segregation where he is allowed out of his cell for an hour each day for recreation. Davison, who had less than a year of experience with TDCJ, was walking Tracy back to his cell in administrative segregation when Tracy allegedly attacked.
Lockhart scheduled Tracy's next pretrial hearing for October.