WOOD COUNTY, Texas — The federal trial of a Wood County constable accused of ordering his police dog to bite a person and falsifying an official document continued Tuesday with more witnesses from the prosecution.
Wood County Pct. 2 Constable Kelly Smith is charged with deprivation of rights under the color of the law and falsification of a document. On Monday, Smith entered a not-guilty plea.
A grand jury found that on July 25, 2022, Smith directed his police dog to bite a suspect, Robert Evans, who did not pose a threat, which resulted in bodily injury, according to the indictment. Smith is also accused of knowingly falsifying entries in an affidavit saying Evans failed to comply with his commands.
On that day, Evans was inside a trailer home in the Hawkins area while Hawkins Police Department officers were trying to serve warrants. Smith and his K-9 were among other officers called to assist HPD.
FBI Special Agent James Crowell, the lead investigator for the case, continued to testify in court Tuesday morning and into the afternoon.
The prosecution questioned Crowell about differences between the affidavit Smith wrote about the events of Robert Evans’ arrest and what was seen on body camera footage.
In the document, Smith wrote that he gave his K-9 the heel command, but the video shows Smith giving the bite command multiple times, Crowell said.
In one of the affidavits, Smith accuses Evans of interfering with a police dog, but Crowell said the video is not consistent with Evans trying to hurt or kill the K-9.
Text messages between Smith and his K-9’s trainer and previous owner were shown to the jury, which had photos of Evans’ feet after the K-9 bit him with “#6” as well as claims of Evans hitting the dog with a plunger and a pit bull coming after the K-9.
Crowell said the #6 represented the number of bites Smith’s K-9 has made since having her, and Crowell said the other two claims are not true based on the video. The defense later questioned Crowell about the “#6” text and how the word “bites” was not used, but the agent later clarified that he made an inference.
A text to Smith from another person responding to photos of Evans’ feet was attributed to Smith in a document prepared by Crowell. The agent acknowledged the mistake as a typo, saying that doesn't impact the totality of the document.
The defense compared that mistake to the accusations of Smith falsifying an official document. But Crowell said Smith made multiple false statements so it seemed intentionally done to deceive.
Amid questioning by the defense, Crowell said he has never been on a SWAT team, but he does have extensive training. Smith’s attorney also questioned Crowell on inconsistencies from previous testimonies and official documents.
In one incident, the defense pointed out how during the grand jury process Crowell said Evans put his hands out to surrender, while during Monday’s testimony, he said just hand. Crowell said there was no intention to deceive the grand jury, which handed down the indictments against Smith.
Crowell testified Wood County Pct. 3 Constable John McQueen, who was at the scene of Evans’ arrest, felt he had to report what happened on July 25, 2022, and would later get connected to Crowell.
The defense brought up that McQueen had spoken to Evans about turning himself in to authorities before July 25, but Crowell said that fact wasn’t relevant to the investigation into Smith’s actions.
While reviewing body cam footage, the defense pointed out Evans grabbed at Smith’s K-9 and Smith told Evans to let go of the dog. Crowell testified he didn’t see Evans hit the K-9 but rather moved the police dog away to not get bit.
Crowell said Smith had gotten control of Evans, who was just trying to not get bit. Crowell testified Smith could only be heard giving bite or come here commands, not heel. He added the bite order was given around 16 times.
McQueen testified Evans previously contacted him about turning himself because he had issues with the Hawkins Police Department.
McQueen said he was at the property where Evans had barricaded himself on July 25, 2022, to help Hawkins police serve the warrants against Evans.
McQueen recalled the decision was made to deploy the K-9 after Smith arrived on the scene. While he didn’t see the struggle, McQueen said he could hear Evans asking Smith to call off the K-9 and Smith saying to let go of his dog.
He testified seeing the K-9 drag Evans down the hall by his foot. After McQueen received body cam footage from Wood County Sheriff's Office Lt. Austin Milbourn for the Hawkins police, he felt like he really had to report what happened.
McQueen said Evans could’ve been taken into custody when his hands were on his head in the tub. He added Evans did not pose a threat and the force Smith used was excessive.
In his testimony, McQueen said Smith gave no commands to Evans except “let go of my dog” and he would’ve handcuffed Evans while in the tub.
Milbourn, who is also a K-9 handler and friend to Smith, said the appropriate amount of force is the least amount needed to make an arrest. He said there was minimal discussion about tactics for deploying the K-9.
Milbourn testified Evans looked panicked and backed up when Smith entered the bathroom with the K-9. Milbourn said Evans was not being outwardly aggressive while in the tub and he was just trying to push the K-9 back.
During one of the videos, Smith is seen holding Evans in an armlock. Milbourn testified there would be no need to deploy a K-9 or taser while in that position.
He said it would have been a good time to put Evans’ hands behind his back. Instead, Smith continued to give the bite command.
Testimony will continue Wednesday morning at the federal courthouse in Tyler.