Witnesses Refuse To Confirm If They Signed Recall Petition

City Representatives Susie Byrd and Steve Ortega were not forced to testify at Monday’s recall hearing, while witnesses who Mayor Cook’s lawyers allege signed the recall petitions, refused to answer questions.

Mayor John Cook’s attorney, Mark Walker, says there is still time to prevent the election and is trying to prove the signatures were illegally obtained at non-profit corporations, like Word of Life Church, Jesus Chapel and other churches.

Pastor Tom Brown’s attorneys argue the city clerk has already verified the signatures, the recall process is already in motion and there’s nothing left to do to stop it.

Defense attorneys for the petitioners Theresa Caballero, Stuart Leeds and Joel Oster had subpoenaed Ortega and Byrd, but neither were at Monday’s hearing at the County Court at Law No. 3.

The judge asked a city attorney, in court to represent City Clerk Richarda Momsen, to call both elected officials and order them to be in court within half an hour. The two city representatives showed up a short time later. Byrd and Ortega were subpoenaed as individuals and not in their official capacities, so a city attorney cannot legally represent them.

Ortega, a lawyer, had filed a motion last week to prevent himself and Byrd from testifying. “We are not parties to this case,” Ortega said, representing himself. In his motion, Ortega argued he and Byrd did not have anything material to offer the court regarding the issue at hand.

Caballero contended Ortega and Byrd were given ample time to prepare for testimony because she subpoenaed them last Tuesday, while she had not been served with Ortega’s motion to stop the testimony. She said that the two elected officials should have been in court on time, as they were ordered. “They should be held to a higher standard of obeying the law,” she told judge Javier Alvarez.

Ortega said, “we can go through the theatrics, I’m happy to do that…but we have no information” regarding today’s hearing. Alvarez granted Ortega’s motion and did not make him or Byrd testify.

That wasn’t the case for District Attorney Jaime Esparza, who is investigating Pastor Tom Brown for allegations of breaking the Texas Election Code. The defense called Esparza to the stand but Assistant County Attorney Ralph Girvin, representing Esparza, said it was unnecessary for the elected official to testify. Girvin said the issue of investigating Brown was a “routine matter” and that Caballero’s efforts to question Esparza were “harassment.” Alvarez allowed the defense to call Esparza to the stand but limited their questions only to establishing that there is an ongoing investigation.

Caballero said it was necessary for Esparza to testify so they could prove that witnesses who Mayor Cook’s lawyers were slated to call to the stand, such as Brown, should remain silent because of an ongoing criminal investigation.

In extraordinary civil cases, if a witness gives testimony that could incriminate them, the judge can take steps to offer them protection, like appoint a lawyer for them, said Judge Alvarez.

Caballero questioned Esparza, who testified his office was investigating the matter. When asked what steps had been taken in the investigation, Esparza said the details had been given to a law enforcement agency. “Is it the sheriff’s office?” asked Caballero.

As Esparza’s attorney objected to the question, Caballero argued that if it was the Sheriff’s Office, there would be a conflict of interest because Bill Ellis, an administrator with the office, had gone on the record opposing the recall effort. The judge did not make Esparza answer the question and said that was a separate matter, irrelevant to Monday’s hearing.

“If you heard testimony from a witness about criminal activity, would you use that to investigate?” Caballero asked Esparza. He answered “Yes.”

Cook’s attorney, Mark Walker, called Lawrence Brackett to testify. The mayor’s attorney asked Brackett if he was familiar with Jesus Chapel Church, another congregation that Cook’s attorney alleges circulated the recall petitions. Brackett said yes.

When asked if he was a member or attended the church, Brackett invoked his constitutional right to remain silent. “They’re trying to prove that he was at the alleged scene of a crime, and he can protect himself with his 5th Amendment privilege,” said Caballero.

The attorneys then approached the judge. After their discussion, Caballero made a motion to keep Brackett from testifying based on his testimony that he did not receive a witness fee from Cook’s lawyers when they subpoenaed Brackett. Walker asked the judge to allow him to bring a copy of the subpoena to prove he did enclose the witness fee for Brackett. “Not all witnesses say the truth,” said Walker. The judge did not allow Walker to do that.

“She did not give me a witness fee when she subpoenaed me,” Mayor John Cook told ABC-7, referring to Caballero. He provided his subpoena for ABC-7, which did not have a witness fee attached. When asked if Cook had been provided a witness fee, Caballero said “I don’t know.” She added she did not personally serve Cook her subpoena.

Two other witnesses, Angel Fernandez, and Gail Boone, also pleaded the 5th Amendment after Caballero offered to represent them free of charge. Cook’s lawyer showed copies of the recall petitions with Boone and Fernandez’s names and what appeared to be their signatures, though the two witnesses refused to confirm it was them who had signed the documents. Cook’s counsel also pointed out the signatures were gathered on a Sunday, a church service day, by a pastor of a church.

“When we spoke to these people on the phone, they admitted that they had signed the petitions, that Pastor Hoyt (of Jesus Chapel) had circulated the petitions, they admitted it was done in church, now they get into court and they don’t want to admit it,” said Cook.

The mayor added that only agents and directors of churches can face criminal penalties for handling the recall petition at a church, not regular citizens who signed the documents at a place of worship.

Brown’s attorney, Joel Oster said it’s not illegal to participate in the democratic process, by signing a petition, at a church. “Christians are not second-class citizens. Christians have every bit of right to participate in the democratic process as anyone else,” he said.

Those witnesses didn’t answer questions by Cook’s lawyer but did answer Caballero’s questions. She asked how it made them feel that Cook’s attorney’s had subpoenaed them. “Fearful,” said Boone.

Also on the stand on Tuesday — Municipal Clerk Richarda Momsen. Walker called her to stand. She testified her office reviewed nearly 800 pages of recall petitions.

Defense Attorney Stuart Leeds questioned Momsen. During cross examination, Caballero also asked Momsen if she knew if Cook, Byrd and Ortega could vote on the date of the recall election. “Yes, unless they recuse themselves,” said Momsen. “Do you believe they should recuse themselves?” asked Caballero. “Yes,” answered Momsen.

The last witness Walker called to the stand is a researcher and paralegal who works in his law firm. She testified that in her research, she had discovered that Tom Brown’s Ministry website directed readers to the recall petition. Caballero argued the paralegal had no personal knowledge of who created the website.