Citing problems with statute, Tarrant DA’s office combines incidents for higher charge instead of prosecuting bias-motivated case separately


SEEKING JUSTICE  | Kim Lovering, a lesbian whose vehicle was spray-painted with ‘faggot’ and ‘queers,’ said she hopes the suspects are sentenced to community service in the LGBT community.

ANNA WAUGH  |  Staff Writer

ARLINGTON — Four teens indicted for Arlington graffiti incidents that included anti-gay slurs spray-painted on a lesbian couple’s SUV won’t face a hate crime enhancement if convicted.

Arlington police arrested the teens in the June 10 graffiti spree that left vehicles, garages and public signs with racial and anti-gay slurs and inappropriate pictures.

Daniel Sibley, 18, John Austin Cartwright, 17, Seth Stephen Hatcher, 18, and Morgen Rae Aubuchon, 18, were indicted Sept. 25 on a state jail felony charge of graffiti causing $1,500 to $20,000 in damage.

The fifth suspect is a 16-year-old girl who will undergo a process for juveniles.

Among the property damaged by the teens was an SUV belonging to Kim Lovering and her partner, which was spray-painted with the words “faggot” and “queers” in capital letters, next to a decal on the rear windshield showing two moms, a child and a pet.

Tarrant County Assistant District Attorney Betty Arvin, who is the prosecutor for the four adult cases, said the incident of anti-gay graffiti could have been prosecuted separately as a misdemeanor. But the DA’s office instead chose to combine the cases — which include 13 individual incidents involving public signs, garage doors and vehicles — to obtain a state jail felony charge.

“We felt like we would have more flexibility and more options if we aggregated the cases so that’s what we did,” Ardin said. “But for a hate crime you’ve got to prove that the people involved specifically targeted a person or their property due to their sexual orientation or their race, and we suspect it but we can’t prove that. Well, we certainly can’t prove it on all 13. … We can’t prove it on all of them and keep it a felony.”

Ardin said trying to prove that the lesbian’s vehicle was targeted because of their sexual orientation became more difficult because anti-gay slurs were also spray-painted on another couple’s property, even though they were straight.

“We can’t prove that the people who did this targeted those people specifically for that reason because they made some similar remarks on non-same-sex couple’s vehicle,” she said.

Texas’ hate crimes statute also complicates things. Ardin said the way the statue is written makes it hard to obtain a hate crime enhancement.

“You can’t say, ‘Oh, yes, this was a blanket anti-racial or anti-gay deal.’ The way the statute is in Texas, you have to prove that specific person, that specific property was targeted by the person who did it for that specific reason,” she said. “It’s one of those things where it’s a good idea, but the way the statute is actually written makes it hard to apply.”

The punishment for a state jail felony is 180 days to two years in jail and a maximum $10,000 fine. Ardin said if bias could have been proven in all the cases, the hate crime enhancement would have made the cases a third-degree felony and, if convicted, the teens could’ve faced two to 10 years behind bars in addition to the fine.

Chuck Smith, interim executive director for Equality Texas, said the problem with the hate crimes statute is that it is a penalty enhancement instead of a separate charge, which many states have.

He said that the Texas Legislature should fix the hate crimes statue, but many currently serving would not support a stricter law.

“The important part is having law enforcement and prosecutors in the community at least acknowledge that what we’re talking about is a bias crime,” he said. “So at the end of the day, it ought to matter less as to whether or not the hate crimes law was used to prosecute it as much as we acknowledge up front that we investigated this as a hate crime, and we’re going to talk about it as a hate crime, and we’re going to prosecute it and hopefully we’ll get the same sentence without using the penalty enhancement.”

The four teens indicted have court dates scheduled for Oct. 24, but Ardin said their cases are still being processed so she is unsure when a trial date will be set or if a plea bargain will be offered.

Kim Lovering said she and her partner are pleased with the decision but disappointed in the lack of hate crime label, adding that she understands it can’t be added to just her incident because the offenses were grouped together. She said the DA’s office offered to prosecute her case separately as a hate crime, but she declined because of the higher charge and neighborhood solidarity.

“I think as a group as a whole for us it was more important to be grouped together for the severity of the crime,” she said. “Because it wasn’t just us.”

Lovering said the teens probably won’t serve any time in jail but she expects they will be required to complete community service. She said she would like the community service to require them to work with people from all walks of life instead of just picking up trash on the side of the road.

“Hopefully they have to work in the LGBT community and learn a lesson they need to learn,” she said. “I hope it’s able to make a positive impact. They’re young so I hope they can actually learn something from what they’re forced to do.”

Jon Nelson, president of Fairness Fort Worth, said he also hopes the judge will require community service with an LGBT emphasis.

Nelson has had discussions with Ardin before, so he said he knows she is sensitive to LGBT and hate crimes issues. He said the district’s attorney’s office will most likely offer a plea bargain, which he would like to see include a mandate of diversity and sensitivity training for the teens.

The graffiti case was the second indictment in as many weeks in Tarrant County in a case involving apparent anti-gay bias.

Wanda Derby, a 72-year-old Richland Hills woman, was indicted Sept. 14 for the beating and choking her gay neighbor with a cane while yelling “faggot.” The case was presented as a felony, but the grand jury returned the case as a class-A misdemeanor.

Christopher McGregor, the Tarrant County assistant district attorney assigned to Derby’s case, said he is planning on trying to prove the assault was motivated by bias to convince a jury that it was a hate crime, which could increase Derby’s sentence to a minimum of 180 days in jail.

Nelson said the attempt to prove bias and seek the minimum sentence in the Richland Hills case signified a shift in opinion in Texas, even if the hate crime statue prevented the Arlington case from proving a hate crime occurred.

“I think that’s a giant step in Texas,” Nelson said. “We have a constitutional amendment banning gay marriage, and I think you’re seeing citizens of this state instead of politicians being sensitive to the fact that those in the LGBT community are often more likely to be harmed than other people.”

This article appeared in the Dallas Voice print edition October 5, 2012.