by BRAD ROLLINS
The man accused in the bloody botched robbery of a North Campus area smoke shop was released from police custody this month as prosecutors work to assemble enough evidence to secure an indictment.
During the Sept. 21 attempted heist at the now-shuttered Gotta Habit Smoke Shop on Sessom Drive, 25-year-old store clerk Patrick William Reilly was shot in the chest while struggling with the armed assailant. Four days after the shooting, San Marcos police arrested Steven Carlos Hernandez, a 20-year-old former Redwood resident, on a charge of aggravated robbery, a first-degree felony punishable by up to 99 years in prison.
Unable to make the original $75,000 bail set by a justice of the peace, Hernandez sat in the Hays County jail for 85 days. On Dec. 18, however, 428th State District Judge Bill Henry issued a writ ordering Hernandez to be released on a personal recognizance bond with the conditions that the defendant observe an 8 a.m. to 8 p.m. curfew and that he wear a GPS tracking device. Following his release, Hernandez moved to a relative’s home in the Steeplechase subdivision in Kyle; the next day, on Dec. 19, he was outfitted with an electronic ankle bracelet.
In ordering that Hernandez’s bail be reduced, Henry wrote that “the case was not presented to grand jury within 90 days.” Under a provision of the Texas Code of Criminal Procedure, a defendant charged with a felony “must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within 90 days” of a defendant’s arrest and incarceration.
“The absence of an indictment makes it obvious [prosecutors] cannot be ready for trial,” said Chevo Pastrano, Hernandez’s attorney. Because his client was unable to work during the nearly three months he was in jail, a personal recognizance bond was effectively Henry’s only option for satisfying the criminal code’s requirements, Pastrano said.
Reached by telephone on Saturday, outgoing District Attorney Sherri Tibbe declined to explain why her office has not won an indictment, which amounts to a preliminary finding by a grand jury that prosecutors have presented adequate evidence to warrant a trial. Pastrano, likewise, would not speculate publicly about why an indictment against his client has not been handed down.
Grand juries operate in total secrecy with proceedings closed to all but a select, specific few: bailiffs and stenographers; prosecutors presenting criminal charges for consideration; witnesses being questioned; and the 12 grand jurors themselves. The identity of grand jury members are strictly confidential under state law and even the state district judge who oversees the process through which they are appointed is forbidden from opening an envelop containing their names before handing it off to the county clerk who then takes an oath of silence.
Anyone who “discloses anything transpiring before the grand jury … in the course of the official duties of the grand jury, is liable to a fine as for contempt of the court, not exceeding $500, imprisonment not exceeding 30 days, or both the fine and imprisonment,” the law states.
Consequently, it is impossible to say if the aggravated robbery case against Hernandez has not yet been presented for grand jurors’ consideration — as Henry’s scrawled note on the bond reduction order suggests — or if a grand jury has already declined to indict Hernandez.
If the latter is true, prosecutors could again seek an indictment when a new grand jury is impaneled next year. If the former is true, prosecutors could simply be waiting to nail down evidence that bolsters their case.
While investigating the Gotta Habit shooting, officers found a black shirt stashed behind an air conditioning unit outside the nearby Mochas & Javas coffee shop which they believe is the same shirt worn by the offender as seen in surveillance video of the attempted robbery, San Marcos police Det. Michael Casillas wrote in court documents. Investigators also recovered a black beanie cap and a pair of sunglasses on the store’s floor where Reilly struggled with the robber.
On Sept. 16, Henry granted Casillas’s request for a search warrant that allowed police to collect saliva and hair samples from Hernandez, then still in jail, for comparison to “trace evidence collected from the items found at the crime scene … to provide it is indeed Hernandez’s DNA and/or hair that was collected from the items worn by the offender while robbing the Gotta Habit Smoke Shop,” according to a copy of Casillas’s sworn affidavit obtained by the San Marcos Mercury.
Crippling backlogs have overburdened forensics labs across the nation in recent years including those operated by the Austin Police Department’s Forensic Science Division, the Bexar County Criminal Investigation Laboratory and the eight Texas Department of Public Safety facilities equipped for DNA analysis. Court documents reviewed by the Mercury do not indicate where police sent physical evidence collected in and around the crime scene for testing.
Faced with an ever-growing workload from more than 2,000 law enforcement agencies statewide, Texas DPS issued new guidelines in 2012 that limit the number of items that can be submitted for DNA testing depending on the severity of the crime involved.
“The laboratory understands the evolving nature of criminal investigations and court schedules, however fulfilling requests for extremely short turnaround times are not possible from a laboratory standpoint without severe negative impacts to the timeliness of other case reports. The laboratory cannot provide accurate and complete information without sufficient time to perform the testing and review the results,” D. Pat Johnson, the agency’s deputy assistant director for crime laboratory service, wrote to local law enforcement agencies at the time.
Although she declined to answer questions specific to the Hernandez prosecution, Tibbe said receiving DNA analysis results in felony cases typically take about a year, but local law enforcement can sometimes successfully press for expedited action.
Pastrano said he has no reason to believe that the delay in indictment is an indication that prosecutors, soon to be under the supervision of incoming District Attorney Wes Mau, intend to abandon the case against his client.
Asked if he expects prosecutors to seek — or re-seek — a grand jury indictment, Pastrano said, “I imagine they will at some point [because] they haven’t said otherwise. They haven’t told me that they’re not going to prosecute the guy.”