Our bookstore is temporarily closed. Please check back soon.
July-August 2010

One whale of a fish story

Alex Imgrund

Assistant Criminal ­District Attorney in Rockwall County

As a misdemeanor prosecutor, I have a pretty good idea of what each day will entail. DWI, marijuana possession, and assault are par for the course. But when a game warden came to tell me about a one-pound weight, a 10-pound bass, and a tournament full of angry anglers, it wasn’t a part of a normal day.

    On a sunny Saturday afternoon last October on Lake Ray Hubbard, Robby Rose confidently strode up to the weigh-in table at the 2009 Bud Light Trails Big Bass Tournament. In his possession was a 10.49-pound bass he was submitting to win the grand prize, a $55,000 Legend Bass boat.

    Rose was well-known to the crowd competing that day. He had acquired a reputation as a successful professional bass fisherman, but that reputation had recently been called into question. In late 2007, Rose was informed by the Bass Champs Tournament circuit that because of allegations of impropriety, he would be required to fish all future tournaments with an independent observer in his boat. Even though he had been incredibly successful in the Bass Champs circuit, amassing over $100,000 in prize winnings, he never fished another one of its tournaments.

    Standing on the dock on that beautiful Saturday, Rose had a fish certain to be in contention for the grand prize. However, when his fish was placed into a holding tank, it sank to the bottom! When tournament official Tyler Fisher noticed the sunken bass, he retrieved it from the tank and felt a hard but moveable object in its belly.

   Tournament officials confronted Rose and told him they would have to cut the fish open to retrieve the obstruction. Rose took the fish, massaged its belly, and removed a one-pound lead weight, stunning tournament officials. Rose quietly muttered, “I’m sorry,” walked to his boat, and left. He was immediately disqualified.

    Texas Parks and Wildlife (TPW) game wardens were present for the tournament, and Game Warden Tom Carbone was the first on the scene. From the beginning, Carbone and TPW treated the matter like a criminal investigation and took statements from tournament officials and other witnesses.

    Because the weigh-in took place at Chandler’s Landing, which is on Rockwall County’s portion of Lake Ray Hubbard, Carbone contacted our office. An extensive onsite investigation revealed a series of interesting facts. An official approached Robby Rose the day before the tournament to ask if he were planning to enter. When Rose said yes, the official told him that he would be required to have an observer in his boat to protect both his and the tournament’s integrity. The next day at the tournament—contrary to this directive—Rose launched his boat from an unknown area and fished without an observer. He had plenty of time to catch a fish and force the weight inside without anyone around.

Charging Rose

I must admit that when Game Warden Carbone called our office to request a meeting about irregularities in a fishing tournament, I didn’t think it would amount to much. But when he laid out the evidence that he’d gathered, I became convinced that serious criminal activity had occurred and that the matter should be thoroughly investigated.

    Warden Carbone and I agreed that a crime had taken place, but we needed to determine the appropriate charge. While Texas Parks and Wildlife Code §66.119 specifically addresses cheating in freshwater fishing tournaments, it didn’t account for Rose’s particular deception. This statute makes it a third-degree felony to bring in a fish from another lake or to buy or sell a fish from another lake to submit in a tournament with a grand prize greater than $10,000. However, that law does not cover stuffing a weight in or otherwise altering a fish with the intent of winning the tournament.

    We also examined Texas Penal Code §32.44, which is Rigging a Publicly Held Exhibition or Contest, a Class A misdemeanor. A person commits this offense if, with the intent to affect the outcome of a publicly held contest, he tampers with a person, animal, or thing in a manner contrary to the rules of the contest. This seemed to apply to Rose’s conduct, but after discussion with Criminal District Attorney Kenda Culpepper and First Assistant Craig Stoddart, we agreed that a misdemeanor was insufficient for a person who tried to cheat his way to a $55,000 grand prize. As Kenda later said, “As far as we were concerned, the case was about a $55,000 bass boat, not a 10-pound fish.”

    We also examined in pari materia issues between the theft statute and the rigging a public contest statute. Our research did not reveal any cases comparing the two; however, applying the test for in pari materia in Hanson v. State,1 we determined that the two statutes: 1) exist in different chapters of the penal code, 2) require different elements of proof, 3) have different penalties, and 4) serve a different purpose. The theft statute was designed, in part, to prevent unlawful appropriation (or attempted appropriation). The rigging statute means to prevent a person from affecting a contest’s outcome, regardless of appropriation or benefit on the actor’s part. Given our examination of the two statutes, we did not believe that there existed any in pari materia issues.

    There was little precedent for this sort of situation. In a somewhat similar Kentucky case, fishermen had caught large fish before the tournament and stashed (“staked” in fishing parlance) them in a location where they could be retrieved during the tournament and submitted as though they’d been caught that day. The fishermen in that scam were charged with felony theft by deception under Kentucky law. As word of the Rose case spread, we heard other stories of cheating scandals in years past, but after extensive research, we weren’t able to recover records as to how other Texas prosecutors handled those incidents.

    Ultimately, we let the facts dictate the appropriate charge, which was attempted theft. Rose used deception in an effort to obtain a grand prize valued at $55,000, so we charged the defendant with the state jail felony offense of attempted theft over $20,000 but less than $100,000. To us it was clear that the legislature intended for cheating in freshwater fishing tournaments to be a felony and that a felony was most appropriate in this case. Because of my involvement from the beginning of the investigation, I remained lead prosecutor, even though we were proceeding with a felony charge.

Possible defenses

Given the unusual nature of the case, we began to consider Rose’s potential defenses to the charge, such as, “I didn’t know there was a weight in the fish” or “That weight must’ve been there when I caught it.” The evidence, however, would turn back even the most outlandish defensive claims.

    According to experienced fishermen, a one-pound saltwater weight would never have been used in this type of tournament and rarely, if ever, on Lake Ray Hubbard, a freshwater lake. Biologists told us that in all of their years of research and practice, they had never seen a bass consume something that large on its own, let alone swallow it and then swim well enough to be in a position to be caught. It was crystal clear that there was only one way that weight got into Rose’s fish: He put it there to win the grand prize.

Plea negotiations

Now that we had criminal activity and a statute to charge, we had to decide what to do with the case. After the tournament on October 24, our office had received numerous calls from members of the bass fishing community expressing their outrage at Rose’s behavior. I quickly learned that when it comes to bass fishing in North Texas, tournaments are serious business. Anglers come from across the state and region to compete in fishing tournaments with substantial prizes. These competitors have invested significant resources on boats and equipment, as well as travel expenses and time. Given all that competitors expend, they demand that competitions be held on a level playing field. Their passion and commitment, coupled with high investment and potential rewards, communicated to us that these tournaments are much more than a group of men and women looking for some sunshine on a Saturday. Tournament fishing, like other sporting events, hinges on the honesty and integrity of the competition and competitors.

    Once we charged Rose, we entered into plea negotiations with his defense counsel, Randall B. Isenberg. We weighed the seriousness of the criminal activity against the defendant’s lack of a serious criminal record in determining what to offer. We argued that jail time, even a short stint, was necessary to send a message to the community about how seriously we took this case. It was also essential that the defendant plead to the felony as charged, accept a ban on fishing in tournaments, and surrender his fishing license. A lengthy probation with community service and a fine were also important to ensure that his competitive fishing days were over (because his fishing license revocation could be maintained only for the length of his probation).

    We also wanted to ensure the three the major goals of punishment: retribution (punishment for punishment’s sake), rehabilitation, and deterrence to both the defendant and the community. When Rose pled guilty to the offense, we felt all three were accomplished. He was sentenced to five years’ deferred adjudication, a $3,000 fine, and 250 hours of community service. As a condition of community supervision, Rose received 15 days in jail and had to surrender his fishing license for the duration of his supervision.

    The public reaction to the plea and sentence was positive. The fishing community was pleased that our office and the TPW took this case very seriously. The subsequent media attention also showed the high level of interest in this attempted theft. From Alabama to Ontario, people wanted to know how we were treating the case. We fielded interview requests from ESPN, sportsmen’s blogs, and other regional media outlets from around the country that followed the story.

Consequences

Ultimately, this was a fascinating exercise in weighing statutory intent against the level of criminal behavior that occurred. Any time large amounts of cash or prizes are at stake, people will attempt to cheat the system. A professional baseball player once said, “If you’re not cheating, you’re not trying.” Had our office not taken the case seriously and pursued and punished the defendant—thanks in part to the hard work and diligence of the Texas Parks and Wildlife game wardens who provided us with the evidence needed to convict—Rose’s behavior would have been encouraged and would have continued unchecked.

     Our office has already contacted our state legislators about filling the loopholes in the Texas Parks and Wildlife Code; we feel that the issue of altering a fish with the intent to affect the outcome of a contest should be addressed. Our state senator has already suggested the name of the legislation be “Get the Lead Out.”

    Working on this case was truly a unique experience. Never before had I been so challenged, puzzled, and entertained by the facts of a case. Not always is there a perfect statute or a perfect set of facts, but at the end of the day, with a little imagination and the penal code, we can reach a fair and just result. We can also earn nicknames like Bass Buster and Fishhook. Ahem.

    But those are fish stories for another day.

Endnote

1 55 S.W.3d 681 (Tex. Crim. App. 2001).