A Bowie County district judge heard arguments Wednesday afternoon concerning a defense motion for a court order that would force the alleged victim of a knifepoint sexual assault to turn over her cell phone.
Mount Pleasant lawyer Bart Craytor argued to 202nd District Judge John Tidwell that he needs an expert to go through the phone to find out if there is any evidence the alleged victim attempted to "blackmail" his client, Donald Mack Tussey Jr. Tussey, 52, is required to register as a sex offender because of an Alabama conviction for a knifepoint sexual assault.
Craytor did not say what evidence, if any, he has to support his assertion that the alleged victim's phone contains information which would assist the defense or which would be admissible at trial.
First Assistant District Attorney Kelley Crisp and Assistant District Attorney Lauren Richards opposed the motion.
"Mr. Craytor wants this court to compel a private citizen to turn over her phone. I know of no legal authority for this. This person is not accused of a crime," Crisp said.
Crisp likened Craytor's request to an unrealistic storyline from a television crime drama and mentioned the potential fall-out which could result should Tidwell grant Craytor's request.
"Can you imagine the chilling effect it would have for a person who is a victim of sexual assault to have to turn their phone over so Mr. Craytor can go through it," Crisp asked, inferring that such an order could discourage other victims from reporting.
Crisp further noted that the state has no obligation to share information with the defense that is not in its possession under rules concerning the exchange of evidence in a criminal proceeding.
Craytor fired back.
"As far as a chilling effect on anybody, that's irrelevant," Craytor said. "What matters is a defendant's right to prepare for his defense."
Craytor continued by arguing that the issue before the court is a "defense issue" addressed in language regarding "compulsory process" in the U.S. and Texas constitutions and expressed the belief that the prosecution doesn't have standing to object to his request. Multiple legal definitions of compusory process refer to a defendant's right to subpoena witnesses, Richards argued, not cell phones.
Craytor referred to a case from the 1800s during which he claims compulsory process was used to acquire private letters in the possession of the U.S. president.
Tidwell asked Craytor a series of questions during the hearing. When asked what specifically he wants to get from the alleged victim's cell phone, Craytor said he wants the device so that it can be examined by a defense expert. He said he wants cell tower data from the carrier beginning the day before the assault and ending the day after.
Craytor said he wants to go through all of the alleged victim's text messages to determine if any are relevant to Tussey's case, to identify potential witnesses and to examine all photos on the woman's phone.
"So you're asking for any conversation she's had with anybody," Tidwell asked.
Craytor said he is only interested in conversations concerning Tussey but said he would need to examine the phone to determine which, if any, of the woman's text conversations, are relevant.
"So you want to go on a fishing expedition. You're asking me to give you the phone and let you decide," Tidwell asked.
Tidwell told the lawyers he would take the matter under advisement and issue a written ruling.
Tussey has been in jail since his arrest in January for the assault which allegedly occurred in his residence the night of Nov. 7.
The woman reportedly knew Tussey because he was a friend of her husband. The woman told investigators that Tussey offered to pay her $500 if she would pose for four photographs to be used in a calendar. The woman reported that she went to Tussey's home in the 800 block of Patton Street in Leary, Texas, at about 9 p.m. Nov. 7.
The woman told investigators that Tussey photographed her but did not pay her the full amount of what he agreed. Later that night, at about 11:30 p.m., Tussey allegedly called the woman and told her he had more money for her. The woman reported that she went to Tussey's home with friends who waited for her outside Tussey's home in their car.
The woman said that when she went into Tussey's home, he was smoking methamphetamine and drinking. Tussey allegedly offered to give the woman more money, a welder and an air compressor if she would engage in sexual activity with him. The woman said she declined, pointing out that she was married.
Tussey allegedly became angry, grabbed the woman by the face and threw her down. The woman said she did what Tussey wanted after he grabbed a knife from his kitchen and ordered her to take off her pants. The woman said Tussey threatened to "cut her throat and kill her" if she didn't take off her pants and stop screaming. The woman reported that she screamed hoping that her friends outside would hear her but they did not.
Tussey allegedly offered to pay the woman $1,000 or $2,000 if she would keep the assault to herself.
"The victim then stated the suspect made her promise not to tell anyone because he was already a sex offender and didn't want to go back to jail," the affidavit states.
The woman told investigators that she was in Tussey's home for about 30 minutes before being allowed to leave. After telling her friends what happened, they drove her to a local hospital where a sexual assault examination was performed and law enforcement was notified.
Tussey is being held in the Bowie County jail with bond set at $500,000. At the time of his arrest, Tussey was on parole in Arkansas for possession of methamphetamine stemming from a 2017 conviction in Miller County.
Tussey was indicted for two counts of aggravated sexual assault with a deadly weapon. Each count is punishable by five to 99 years or life in prison.
____