January-February 2009

“Keep it down—I’m trying to sleep”

A Collin County jury found Michelle Smith guilty of aggravated sexual assault of a child even though she never actually touched her daughter. Nevertheless, after permitting her common-law husband to abuse the child almost daily for years, she’ll spend up to 210 years in prison.

Crystal ­Levonius

Assistant Criminal ­District Attorney in Collin County

Shannon Miller

Assistant Criminal ­District Attorney in Collin County

The bed was shaking as Glen Bracy perversely rocked back and forth on top of his toddler daughter, Carey (not her real name). Michelle Smith, Bracy’s common-law wife and Carey’s mother, rolled over on the bed and told her baby girl to “keep it down” because she was “trying to sleep.”

This was just one night of many when Bracy sexually abused Carey and her mother didn’t stop him.

Before meeting Smith, Bracy was already a two-time convicted sex offender. He was first convicted of lewd and lascivious contact with a deaf and mute child in California, which is the equivalent to indecency with a child here in Texas. He was then convicted of indecency with a child in Collin County after molesting his under-5 stepdaughter.

Bracy, who was on parole at the time, met Smith through his mother; the two worked together. At the beginning of their relationship, Bracy’s licensed sex offender treatment provider warned Smith that he was a dangerous pedophile who would never change. His primary sexual attraction would always be to young children. Even after that warning, Smith began a long-term relationship with Bracy, held him out as her common-law husband, and had children with him. When Smith found out she was pregnant with Carey, she met with the licensed sex offender treatment provider for a second time. The treatment provider said that Bracy could never be alone with the child, could never bathe the child, and could not even fold the child’s clothes without getting aroused. Unfortunately, Smith ignored these warnings.

It was just before Carey turned 2 that Smith came home from work early and found Bracy “licking” her baby’s genitals. She said she did not want to confront Bracy in front of the child, so she closed the bedroom door, let Bracy finish what he was doing, and talked to him about it later. It was at this same age that Carey’s baby-sitter noticed that Carey refused to wear clothing and had yeast infections that seemed incurable. The sitter questioned Bracy about both oddities, and he never took the child to daycare again.

Carey became a very sexualized child. Bracy and Smith did not wear clothing in their home and made sure that Carey did not either, further isolating and sexualizing her. At night, they all slept together in the nude. Smith and Bracy skewed the child’s normal boundaries and raised her without modesty or knowledge that her body was her own.

Her parents rarely left Carey alone with anyone. At age 4, Carey was allowed to play with kids from the house down the street, but not by herself—Smith or Bracy accompanied her at all times. The parents of those children down the street had no idea that Bracy was a sex offender, although they had noticed creepy behavior. They had confronted Smith and Bracy for allowing Carey to play at a park without panties under her dress and about the way Bracy held neighborhood children between their legs while he spun them in circles. When they were finally told by another neighbor that Bracy was a registered sex offender, they decided to ask Carey and their own children about “private touches.”

The rare opportunity presented itself when Smith asked her neighbor to watch Carey while she ran out to get laundry detergent. The neighbor then asked her own children in front of Carey whether anyone had ever touched them inappropriately. Carey volunteered that her dad did and that her mom knew about it. The neighbors then filed a report with Child Protective Services (CPS). CPS responded immediately and contacted law enforcement. Investigator Billy Lanier with the Collin County Sheriff’s Office was already familiar with Bracy, as he had been in charge of sex offender registration in the county at one time. Once Bracy was arrested, CPS and the sheriff’s office began working on the case.

Jerry Wright and Delia Guillamondegui began the investigation for CPS. They secured information from Smith that indicated that she knew that Bracy had been molesting her child and that she had done nothing to end Carey’s continuous nightmare. CPS was also concerned for Carey’s 4-month-old sister, Laura (not her real name). After reviewing the history and staffing the case, CPS took the unusual step of pursuing “aggravated circumstances” with the court. Generally, CPS’ goal is reunification of the family; however, pursuing aggravated circumstances means that reunification is no longer an option. In this case, Bracy and Smith’s disturbing behavior was so ingrained and repeated and their lifestyle so appalling that CPS could do nothing to fix it. Ultimately, CPS and prosecutor Alyson Dietrich insured that parental rights from both Bracy and Smith were terminated.

Investigator Lanier was the lead law enforcement officer in this case. While he secured a confession from Bracy, Smith was interviewed by Deputy Scott Morrison, who was gathering valuable information that Smith knew her husband had been molesting Carey. Deputy Morrison confronted an agitated Smith and emphasized that she needed to stand up for her child. Smith was very careful in the interview about her choice of words and often answered a question with a question, but she finally admitted to seeing her husband “lick” Carey on one occasion.

After Investigator Lanier secured Bracy’s confession, Bracy was left no option but to plead guilty to five counts of aggravated sexual assault of a child. He admitted to at least 50 different acts of sexual abuse over two years, though Carey relays she was treated brutally on an almost daily basis. The only issue was whether Judge James Fry would stack the sentences. Former prosecutor Barnett Walker handled the case against Glenn Bracy. Evidence was presented that Bracy could not remember all of his victims but that there were at least 20; he had been prosecuted for only two. After the information was presented, Bracy received five life sentences to run consecutively.

How to charge Smith

After Bracy was sent to prison, the focus of Investigator Lanier’s investigation shifted to Smith. Our office had never prosecuted someone for another perpetrator’s sexual abuse, let alone charged the child’s mother as a party to an offense. But the facts in this case seemed ripe for prosecution—a prosecution that would tell every other unprotective mother that we would have zero tolerance for this behavior. This was also a case where CPS and law enforcement had already done what they could to insure Smith would never have access to her child again. It was now up to the District Attorney’s Office to follow their lead.

As far as charging goes, failure to report child abuse is just a misdemeanor. With these facts, that seemed like too little punishment for too much bad behavior. Even endangering a child—a state jail felony—did not adequately address Smith’s hideous inaction. After numerous discussions with representatives of CPS and law enforcement, we all believed that this was a case where we could not back down. We all felt so much compassion for a wonderful child and such disdain for an evil woman that we felt a call to duty. It seemed evident that God put our team together to protect this child and every other child that came into Smith’s path, and we had to seek the maximum punishment to accomplish that goal.

We knew this from the moment we met Carey. We know from our training not to show emotion as a child is describing abuse so the child does not shut down. When Carey first described what had happened to her, it took everything we had inside not to break down. In past cases, we had seen horrific pictures, but the picture that Carey painted for us was far worse than anything we had seen or heard. Tribulations in our own lives would never compare to what this little girl had experienced. Also, when this case went to trial, Crystal was seven months pregnant, which was another sort of sign for us: It reminded us what a mother’s love should be. We feel that sort of love for our own children, while Smith felt nothing. We were moved and inspired to be better mothers and protectors in our own lives, and that brought about our unwavering need protect a child who had not been protected by her own mother.

Preparing the indictment was tricky. Our indictment charged Smith with three counts of aggravated sexual assault of a child, two counts of indecency with a child, five counts of injury to a child (including a first-degree count for causing mental injury to a child), and three counts of endangering a child. When the grand jury handed down the indictment, Judge Greg Brewer found Smith’s bond insufficient and she was arrested at a CPS hearing where she was trying to get custody of her third child, an infant. (Smith got pregnant soon after Bracy went to jail. She met a man online who was looking to have sex with someone who had been married to a psychopath. After our trial, Smith relinquished her parental rights to that child.)

Jury selection

We knew from the beginning that picking the jury was going to be integral to this case. One of our main concerns was making sure the jury understood the law of parties and how a person could be held criminally responsible when they did not physically commit the aggravated sexual assault or indecency themselves.

Voir dire was conducted by Shannon Miller, who first went through and explained the elements and definitions of all the offenses and the typical questions we would ask for each of these offenses. Toward the end, we began discussing the different ways the State could prove a person is criminally responsible, with law of parties as the main theme. Crafting examples for the law of parties that would help the jurors understand and see the intricacies and distinctions within the law was difficult. We wanted them to understand overt actions as well as actions that encouraged and aided an offense. We used two examples:  one of overt actions of a person who could be held criminally responsible and another where a person aided and encouraged another to commit a crime. The first example was about a nurse helping a friend steal from patients at a nursing home by supplying information about whom to steal from, when and where opportunities for stealing exist, giving her friend access to the home, and encouraging her friend to commit the crimes—even though the nurse herself did not gain anything. The second scenario we posited was the typical bank robbery example where someone is injured during a hold-up and the getaway driver is held criminally responsible for the robbery as well as the assault.

The panel had very few questions and concerns after hearing the two examples. They appeared to understand and have no real trepidation about how a person who does not actually commit the crime itself but assists, aids, or encourages another to commit a crime can be convicted. They all agreed that the person aiding or encouraging the other was just as responsible and liable for the crime and the consequences. We had hoped that by discussing this immediately before talking about probation, we would not lose many jurors who could not consider probation in child abuse cases. Although we still lost quite a few, much of the panel was in favor of having the large range of punishment because they understood that Smith may not have committed some of the crimes herself.

Our first concern going into trial was Carey’s ability to testify in front of the woman who had been her mother. The girl, now 7 years old, had come to the courthouse to meet with us on several occasions but had emotional difficulties each time. Most of the visits did not involve talking about the case, but merely playing and hanging out so that Carey would come to know and trust us. However, masturbation had become a coping mechanism for Carey, and each time she left the courthouse her masturbation increased. We were not confident that this little girl would testify if she saw Smith in the courtroom. We filed a motion requesting that the court allow Carey to testify via closed-circuit television during the trial pursuant to Article 38.071, §3 of the Code of Criminal Procedure. Appellate lawyer Emily Johnson Liu found caselaw to support the need for this type of testimony and to help us convince a judge that this case was so traumatic for the child that the closed-circuit television was the best option. We also had to keep in mind the new trends in caselaw that focus on the confrontation clause. While we knew this would ultimately be a concern on appeal, it was a risk we had to take for Carey’s well-being. Dan Powers, Senior Director of Clinical and Administrative Services at the Collin County Children’s Advocacy Center, provided valuable testimony during which he explained that if Carey had to face Smith in court, it would be the equivalent of making her jump off of a cliff. Ultimately, Judge Vicki Isaacks, a visiting judge from Denton County, agreed. Judge John Roach Jr. (son of our elected DA) demonstrated the equipment that was available in the courthouse, and Investigator Kenny Newton from our office made sure it worked when we needed it. Carey testified from a conference room in our office with only a bailiff in the room with her. She was able to see the judge and the attorneys but not Smith. Everyone in the courtroom could see her as she described her experiences with Bracy and Smith.

Carey expressed in heart-wrenching detail the sexual relationship she had with Bracy and how her mother knew about it. She talked about how her daddy got bored with putting his wiener in her wiener hole, so he put his wiener in her butt. She began bleeding from her anus, and her mother put medication and a Band-Aid to cover up the wound, and it made Carey feel “much more better.” Carey noted that she was thankful for her mother’s kindness, but everyone in the courtroom knew this was just a way for Smith to clean up the crime scene.

After we rested, we were giddy as Smith took the witness stand. Up to that point, the defense had tried to portray Smith as a woman manipulated by her sex-offender husband. They even used our experts on cross-examination to talk about how manipulative sex offenders can be. Fortunately, we had been reading her jail mail and listening to her phone calls for over a year. Our secretary, Kathy Schroeder, had completed a spreadsheet that broke down all the phone calls and highlighted important conversations in the mail. When Smith tried to portray herself as a meek woman, we used her calls and letters at trial to reveal the mean and nasty person she truly was. For example, during her initial interview with police after Bracy’s arrest, Smith described being afraid of him and lying to the police about him licking her daughter to get him arrested, and she explained that the arrest was how she intended to break free of him. She also claimed that Officer Morrison had badgered her during her interview, but we had a recording of that proceeding, and Morrison was always professional and polite. She denied having any idea that her child had been molested and even denied that she had seen Bracy licking Carey as she had told law enforcement and CPS. Observers in the courtroom, including members of the jury, were not persuaded and were shocked when she stated that five life sentences for Bracy were excessive—she believed that Bracy was entitled to a second chance. And, although Smith was seeing other men, she still maintained in jail records that Bracy was her husband and remained in constant contact with Bracy’s mother.

At the close of our case, we abandoned three counts that we believed could cause a problem on appeal. We abandoned counts eight, nine, and 10 charging the defendant with injury to a child causing a serious mental deficiency, and two counts that charged her with putting Carey in imminent danger of both bodily injury and mental impairment. We felt that our remaining injury to a child count that charged Smith with causing serious mental injury adequately addressed Carey’s injuries but was more specific on how Smith’s actions made her responsible. Additionally, we wanted to be sure that each count was a separate offense supported by independent evidence and did not charge Smith more than once for the same actions.

As we began argument, we focused on all the facts that were within Smith’s knowledge—yet she still put her naked child in a sex offender’s bed. The defense astutely encouraged the jury to find Smith guilty of endangering a child. They argued that the facts fit endangering the best. In less than two hours, though, the jury came back with guilty verdicts on all remaining counts. It was a tremendous relief to know that the jury saw Smith as the same malevolent person we had come to know.

In punishment we argued that jurors had a duty, like soldiers, to hold the line. We had to make sure that before Smith could ever get to another child, she would have to come through us. Because the case was so intense, we also included some humor and described ourselves as the Dallas Cowboys’ offensive line (Crystal was 320-pound Andre Gurode because she was seven months pregnant and felt just as large as he is), and Smith was not going to get past our team without a fight. The jury came back with 70 years on the three counts of aggravated sexual assault of a child, 70 years on injury to a child causing serious mental injury, 20 years for indecency with a child, 10 years on injury to a child causing bodily injury, and two years on each count of endangering a child, plus $10,000 fines on each count. We requested that the aggravated sexual assault counts run consecutively, and Judge Isaacks granted it. We were very pleased with the sentences.

Carey and her sister have since been adopted by a wonderful, caring family. They joined a brother who is not biologically related but who had also been adopted by the same family. For the first time Carey has been able to know what it is like to have a real mommy whose love for her child exceeds all else. She may have began life as Smith’s daughter, but her real mother, the one who gives her love and support and nourishment, is the one who adopted her.