Travis County DA rejects request from attorneys representing APD officer to appear before grand jury

Deadly road rage case involving APD officer will go before grand jury

It's been almost two years since a deadly road rage incident involving an off-duty Austin police officer. Now, the case against another officer, who responded and fired his weapon, will go before a grand jury.

AUSTIN, Texas - The Travis County District Attorney’s Office rejected an Austin police officer's attorneys' request to appear before a grand jury.

In a letter, prosecutor Joshua Smalley wrote "We respectfully decline this request. To do otherwise would be a departure from both preexisting and current grand jury practice in Travis County which is not afforded to any other person in Travis County who has a matter pending before a grand jury. To deviate from our policy in this instance would create an unjustified instance of specialized treatment."

APD officer Luis Serrato shot and killed Alex Gonzales Jr. on Jan. 5, 2021. He was called to Wickersham Lane after Officer Gabriel Gutierrez, who was off duty, shot Gonzales.

Gutierrez said Gonzales cut him off and flashed a gun at him, initiating the encounter. The family said Gutierrez pulled up alongside Gonzales and started firing. His girlfriend, who was also in the vehicle, was shot. Their young son in the back of the car was uninjured.

When Serrato arrived, Gutierrez had already shot Gonzales. His family believes he was reaching in the back of the vehicle for his son when Serrato opened fire.

"When this happened, my world ended. My world stopped," Alex's mother Elizabeth Gonzales told FOX 7 Austin in 2021. "Since that date, I can't move on. I won't move on until some justice is done for my son."

Serrato's attorneys Ken Ervin and Doug O’Connell said they felt it was "necessary" to make the request, accusing DA José Garza of suppressing evidence in other cases involving officers. Though they declined to cite specific cases Tuesday.

In 2021, O’Connell accused the Travis County District Attorney's Office (TCDAO) of suppressing exculpatory evidence during the grand jury process while representing Sgt. Daniel Perry. Perry shot and killed protestor Garrett Foster during a 2020 Black Lives Matter protest. He said he did so in self-defense.

The case is still making its way through court.

Detective Daniel Fugitt claimed the TCDAO forced him to remove "exculpatory evidence" from his grand jury presentation. A judge dismissed claims that the TCDAO "tampered" with a witness.

"Mr. Garza ran on this platform of police accountability, prosecuting police officers… But, he also campaigned on fairness and transparency. And if you want fairness, fairness requires both sides. It's not just the DA and whatever the DA wants the Grand Jury to hear. Fairness is allowing the opposite side and representation of Mr. Serrato," said Ervin.

In their request to appear before the Grand Jury, Serrato’s attorneys cited Article 20A.104 of the Texas Code of Criminal Procedure. It states, "PERSONS WHO MAY ADDRESS GRAND JURY. No person may address the grand jury about a matter before the grand jury other than the attorney representing the state, a witness, or the accused or suspected person or the attorney for the accused or suspected person if approved by the attorney representing the state."

Defense attorney and retired Travis County and Texas Court of Criminal Appeals Judge Charlie Baird said while attorneys are legally permitted to appear before a grand jury, they typically are not allowed to.

"It is a form of tradition, the way it's always been done, not just in Travis County, but in Texas," He added. "This is more institutionalized inertia."

Baird noted it was "especially political" how Serrato’s attorneys pressured Garza’s office for the request.

"In trying to hold his feet to the fire in saying that the manner in which you're presenting these cases, Mr. Garza, is a violation of your campaign promise to make sure that things in the criminal justice system are handled in a very open and transparent method," Baird said.

In Smalley’s letter, he invited Serrato to testify.

"Mr. Garza's rejection of our request to address the grand jury does not instill confidence that the proceedings will be fair and impartial. We cannot advise Officer Serrato to testify under these circumstances," said Ervin.

Baird called the TCDAO’s decision to decline Ervin and O’Connell’s request "disturbing."

"You would think that in an area of transparency that the grand jury should be entitled to hear all the evidence… I think it's unfortunate that you have these grand jurors who are asked to make a very important decision as it affects the life of another individual. And they're not given a full picture of what the evidence is," Baird said.