Warrant cut-and-paste nearly sinks DWI case
Blood evidence thrown out after judge learns deputy borrowed text.
Kenton Fryer nearly evaded a felony DWI charge in the spring, when he was tried for a 2016 brawl with a Bastrop County sheriff ’s deputy, during which he reached for the officer’s gun.
Prosecutors had blood evidence that showed him to be intoxicated above the legal blood alcohol limit on the night of Jan. 16, 2016, when he had gotten out of his vehicle after a police pursuit to assault an officer and attempt to remove his gun from his holster, according to police records.
But that blood evidence was thrown out by state District Judge Carson Campbell before his trial in April. A deputy writing a probable cause statement for a blood draw warrant had copied and pasted text from one portion of a document to another, which led the issuing judge to believe that the officer had firsthand knowl-
edge of events — but, instead, those facts had been told to him by another officer, prosecutors said.
Errors made on affidavits by officers is “a problem as old as time, in my opinion. And one that was made easier to commit with the advent of modern technology,” Bastrop County District Attorney Bryan Goertz said, referring to occasional copy-and-paste errors his office discovers in affidavits when trying cases.
It’s impossible to track how often errors affect cases, he said. They are most often discovered at bail hearings, and the county has no way of tracking how often they affect prosecutions.
In Fryer’s case, prosecutors were forced to rely on dashcam video evidence to argue that Fryer’s behavior displayed clear signs of intoxication, a less infallible tactic.
But it worked: A jury convicted Fryer on one count of driving while intoxicated with a child under 15 years old and assault of a public servant.
“It’s serious stuff when you have a DWI case and your blood evidence gets thrown out,” said Assistant District Attorney Greg Gilleland. “I’m amazed we won it.”
Goertz said his office sees copy-and-paste errors once or twice a year.
“Normally, it would hurt, but in (Fryer’s) case we had enough other evidence to prove our case anyway,” Goertz said.
Deputy Dylan Dorris was pursuing Fryer on suspicion of drunken driving when he turned into a gas station at the intersection of Texas 304 and Watterson Road, south of Bastrop. Fryer, who came from Little Rock, Ark., had just left a wedding and was wearing a black pinstriped suit. As Dorris approached, Fryer refused to raise his hands, and Dorris could see the silhouette of a small child. When the officer attempted to take control of him, Fryer turned around and pushed Dorris into a gas pump, then landed on him as they fell.
“Kenton began to pull my tools and communications wire for my earpiece attached to my hand held radio,” Dorris wrote in his 2016 report. “I attempted to make contact with dispatch to expedite other units to my location for assistance, but Kenton had disabled my communications wire.”
After continuing to struggle and exchange punches, Fryer began grabbing for the deputy’s sidearm. But Scott Perkins, a local Marine veteran who watched the episode unfold, jumped into action.
“Freeze!” Perkins yelled as he pulled out his concealed handgun, pointing at Fryer.
Fryer then fled, but an assisting officer arrested him. Hours later, the faulty affidavit for a search warrant was submitted to obtain a blood sample.
Fryer received eight years for his altercation with the deputy and two years for driving while intoxicated with a child. He submitted a motion to appeal the guilty verdict in May.
A month before his trial in March, he was arrested on those same charges — assault of a public servant and driving while intoxicated with a child — in an unrelated incident.