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Civil Law
September-October 2007

Battling gang violence

Ben Hoover

Assistant Criminal District Attorney in Wichita County

Scott Reddell

Assistant Criminal District Attorney in Wichita County

A Wichita Falls jury was the first to enforce an injunction designed to dismantle gangs and keep them off the streets. Here’s the message the community is sending.

Just like so many cities in Texas, Wichita Falls has a gang problem. One of the most well known gangs is the Varrio Carnales (VC), Spanish for “neighborhood brothers.” This group is primarily made up of young Hispanic men between 18 and 25. The senseless crimes they commit include theft, criminal mischief, aggravated assault, and drive-by-shootings. Much of the shooting violence is aimed at the VC’s rival gang, the Puro Li’l Mafia (PLM). The Wichita Falls Police Department reports that these two groups have been shooting at each other for nearly 20 violent years.

After years of arrests by law enforcement, it was determined that most of the gang activity occurred in one particular part of the city. In the spring of 2006, there was a sharp escalation of gang-related violence. In a three-month period between December 2005 and February 2006, more than 50 drive-by-shootings were reported. On one particular Saturday, seven shootings were allegedly related to the VC. Police identified an area of about one-and-a-half square miles in central Wichita Falls as the hot zone for VC activity, dubbing it the “VC Safety Zone No. 1.” Wichita Falls High School, with 1,300 students, sits right in the middle of this dangerous locale.

The injunction

To address this ongoing violence, the district attorney’s office, city attorney’s office, and police department decided to seek an injunction to stop known gang members from associating in the VC zone. The theory behind the injunction was that if gang-bangers could not associate, then their potential for violence was lessened. The injunctive authority is found in Chapter 125 of the Civil Practice and Remedies Code, which allows a court to enjoin gang activity after finding it to be a public nuisance. The Wichita Falls injunction was modeled after an injunction that Bexar County had issued several years before. Nearly 20 VC members of various ages were singled out as the biggest threats. Several of these men were suspected in scores of drive-by shootings and other violent crimes. On August 31, 2006, the petition was filed and a temporary restraining order issued by the 89th District Court. The court issued an order authorizing the police to give personal service of the restraining order. That same evening, some 25 officers set out to locate and serve each and every defendant with a copy of the restraining order. On September 18, 2006, the temporary gang injunction was ordered into effect by the district court.

The violation

One of the named gang members in the injunction was Michael Busby, a 20-year-old gang-banger with self-admitted ties to both the VC and the Crips. (Gang affiliation sheets used during the book-in proceedings proved to be very handy in identifying which members belonged to a particular gang.)

On the night of March 6, 2007, just before midnight, several citizens reported a shooting within the VC zone. The alert citizens directed officers to a nearby white house where three of the shooters had fled. Officers established a perimeter. The owner of the house emerged and told officers that a baby was somewhere inside. Officers entered to find the baby and clear the house. During the search, officers found Busby hiding in the attic with two fellow gang members, all of whom were named in the injunction.

Busby was charged with violating the injunction two different ways: by associating with another named defendant in the injunction and by being on the property of another named defendant. Section 71.02 of the Penal Code provides that violation of the injunction is a class A misdemeanor.

The trial

We were not aware of anyone else in the state who had tried a gang injunction violation and were certain that no one in Wichita County had ever done so. The trial itself was more technical than a typical misdemeanor trial because of what we had to prove. First, we had to prove up the injunction’s existence. Second, we needed to prove that Busby had knowledge of the injunction and that he was a named defendant. Finally, we needed to show that he violated the injunction in at least one of the two alleged manners.

During our case in chief, we first called Darlene York, the custodian of records in the sheriff’s department, to identify the book-in photos of four VC members, all of whom were involved in the case. The book-in sheet for Busby displayed his signature, which we later used to prove that he had knowledge of the injunction. Further, the book-in sheet for Busby’s cohort, Israel Contreras, Jr., listed his address as 1915 6th St., which was the house where the defendant was found hiding in the attic. We were then able to prove that Busby violated the injunction by being on the property of Israel Contreras, Jr.

The next witness was our gang expert, Officer Tommy Smythe, a criminal intelligence specialist with the police department who had spent years studying and identifying the gangs in Wichita Falls. Officer Smythe identified and established the existence and authority of the injunction. He was also able to educate the jury concerning the gangs that lurk in Wichita Falls and specifically identify the VC as one of those gangs. Smythe named Busby as one of the men he personally served with the injunction and testified that the temporary injunction was extended on January 31, 2007. He was instrumental in building the proof that we needed.

Our next task was to prove that Busby had knowledge of the extended temporary injunction and that he was a named defendant. We called a secretary from the district attorney’s office to testify that she mailed a letter and an order extending the temporary injunction which notified the defendant of his injunctive status. The letter stated that the court had extended the temporary injunction beyond its original date of expiration. Our witness testified that she mailed the letter and then received a return receipt within a few days. We then used Chris Gay, a handwriting expert with the police department, to testify that the signature purporting to be Busby’s on the return was identical to the signature on his book-in sheet. Knowledge was no longer an issue.

The information alleged that the temporary injunction was issued pursuant to Civil Practice and Remedies Code §125.065(a). Bryce Perry, a civil prosecutor in the Wichita County District Attorney’s Office who had worked closely with the city attorney’s office and the police for months to craft the injunction, was called and testified that subsection (a) of the code contained the relevant language which specifically gave the court authority to enjoin the named defendants.

After hours of testimony that laid the groundwork, we called our first witness to the alleged violation. Sergeant Charlie Eipper is a veteran officer with substantial experience on the SWAT team and the gang task force. On the night of March 6, 2007, he received a dispatch that shots were fired in the VC zone. He and other officers responded to the same white house that courageous citizens directed the police to after the shooting. Upon learning that a baby was inside, Eipper directed officers to enter and clear the residence for the safety of the baby and any other people. His testimony established that both probable cause and exigent circumstances existed to enter and perform the protective sweep. During the search, one officer noticed a door into the attic with debris on the floor directly underneath. Eipper used a SWAT extension mirror to probe the dark attic but could not see well enough to adequately complete the search. He then climbed into the attic and discovered Busby and two other men hiding behind insulation. Eipper told of many past encounters with each of these men and further testified that each one was a defendant in the injunction. His testimony proved that Busby violated the injunction in both of the manners alleged in the information.

During closing, we emphasized that the case was now in the jury’s hands. The law enforcement team had done its part to create the injunction and vigorously enforce its provisions. We presented the best case we could and then waited for an answer. The jury returned in under 30 minutes with a guilty verdict and a message that gangs were not welcome in Wichita Falls.

A means to an end

This was not Busby’s first rodeo. In February 2007, he was placed on five years’ deferred adjudication for engaging in organized criminal activity. He was given a reasonable chance to change his ways and failed miserably. Our misdemeanor conviction was just one small step in the large picture. On July 19, 2007, Busby’s probation was revoked and he was sentenced to eight years in TDCJ. One week later, both sides reached an agreement for punishment in the misdemeanor gang injunction case. Busby would serve the maximum one year in jail, pay a $4,000 fine, and further plead guilty and accept the maximum on five additional injunction violations.

We had accomplished what we knew was so very important. A standard was set in our community for enforcement of the gang injunction. We believe that the countless hours of extra work put in by the collaborative efforts of the police department, city attorney’s office, and district attorney’s office were not in vain. At least for a few years, there are children in Michael Busby’s neighborhood who will be able to play outside on a safer street.