By BRAD ROLLINS
Matthew Todd Ferguson was headed for a trial on charges he sexually assaulted a woman and secretly videotaped sex with others at his San Marcos apartment.
But in June 2006, then-District Attorney Mike Wenk unexpectedly dropped the local charges against Ferguson, a former Texas State University student with a prior sexual assault conviction in Michigan. His motion for the dismissal noted that Ferguson had been indicted on similar charges in McLennan County where Ferguson lived while attending Baylor University.
“Hays County only has a single complainant and McLennan County clearly has the majority of witnesses and evidence [and] the State of Texas wishes to facilitate that prosecution and dismiss the immediate charges,” the motion stated.
And that happened. As his trial approached last fall in McLennan County on two sexual assault and nine counts of improper visual recording for sexual gratification, Ferguson agreed to plead guilty to some of the charges in exchange for a total of 25 years in prison.
The aborted prosecution in Hays County, however, is not as routine as it sounds, a case of passing the prosecution to the jurisdiction with the strongest case.
The move was prompted largely by District Judge Bill Henry’s ruling that defense team should have copies of the sex tapes Ferguson secretly recorded over the years at his home in Waco and then in San Marcos. Ferguson’s San Antonio attorneys had argued they needed copies to review and analyze since a large part of the case against their client centered around the dozen tawdry tapes found during a search of Ferguson’s North LBJ Street apartment.
Henry agreed with the argument in an April 2006 recording on the criminal docket, “State ordered to copy videotapes and turn them over to [defense]. Orders will show that the tapes are to be used only for defense counsel and experts.”
The decision infuriated police and prosecutors who say they feared the explicit tapes would end up on the Internet or as black market DVDs. Wenk and Asssistant District Attorney Karen Avery wanted to make the tapes available to the defense for review but only in the custody of the police department.
“We were concerned that the tapes would not be protected and expose the women to further victimization,” San Marcos police Sgt. Penny Dunn said recently. At the time of the ruling, police officers’ words were chosen less carefully.
The episode contributed to the San Marcos Police Officers Association withdrawing their endorsement of Henry, who was running for a full term after being appointed by the governor to fill the new 428th District Court a year earlier. In the months before the election, the association threw its support to Anna Martinez Boling, who went on to win 14,626 votes to Henry’s 15,064.
Henry declined to comment about the case.
Wenk, now a San Marcos criminal defense attorney, has not returned phone calls for comment. One attorney familiar with the case joked the former district attorney should have taken on Ferguson as ac client when his term as district attorney ended. Wenk did not seek a third term in 2006.
“He might as well had been his lawyer all along,” said the attorney, who spoke on the condition he not be named.
“This was about showing a new judge that he couldn’t cross Mike Wenk and the San Marcos police and get away with it. It was sending a message that we’ll embarrass you and say you let a rapist go free if you don’t handle evidence the way we want you to,” the attorney said. “To them, setting a precedent where a judge is scared to rule against them is more important than [seeking] additional prison time” for Ferguson’s alleged crimes here.
Dunn said Ferguson’s local victims, including the woman’s whose sexual assault claim started the affair, were informed about the dismissal at the time. “Since Ferguson received prison time, they are not interested in the re-filing of the criminal cases here in Hays County,” Dunn said.
As for the tapes., after Ferguson’s sentencing in Waco last fall, District Judge Matt Johnson ordered the tapes destroyed and all records in the case permanently sealed.
PART 2 of 2
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