Saturday, November 22, 2008




Cause No. _____________

v. § AT LAW NUMBER______


A. Discovery-Control Plan
1. Plaintiff intends to conduct discovery under Level 2 of Texas Rule of Civil Procedure 190.3
B. Parties
2. Plaintiff David Torres is a resident of Nueces County, Texas
3. Defendant Bryan Smith, individual, is a resident of Nueces County, Texas and may be served with process at 321 John Sartain St., Corpus Christi, Texas 78401.
4. Defendant City of Corpus Christi is a municipal corporation and a political subdivision of the State of Texas, who may be served by serving its acting City Manager Angel Escobar at 1201 Leopard St., Corpus Christi, Texas 78401
C. Jurisdiction
5. The individual parties to this lawsuit are residents of Nueces County, Texas. The municipality herein is located in Nueces County, Texas.
D. Venue
6. All matters alleged herein occurred in Nueces County, Texas.

E. Facts
7.1 On or about May of 2007, Assistant District Attorney Jack Pulcher informed Plaintiff that a police officer had purchased a vehicle from the police impound lot. Jack Pulcher again retold the same story to Plaintiff David Torres and Detective Gilbert Garcia. As a result of that information, Plaintiff specifically informed Assistant Chief Kenneth Bung of the allegations that officers were purchasing vehicles from the impound lot for their own personal gain. During that meeting, Assistant Chief Kenneth Bung did not tell Plaintiff that he was already aware of the situation or that he knew that the former Chief of Police Pete Alvarez had allegedly acquiesced to this activity by police officers by doing nothing about it. The investigation revealed that Captain Jerry Vesely, Lieutenant Weldon L. Weber and Senior Officer Martin Jasso were persons involved in inappropriately and illegally purchasing vehicles from the police impound lot. Assistant Chief Kenneth Bung, Commander John Moseley and Commander Mike Walsh never informed Plaintiff that they had been aware of this illegal activity since 2004 and had done nothing to stop it.
7.2 Plaintiff David Torres had uncovered and reported a situation that could prove embarrassing and inexcusable for the police department. This investigation would definitely have a detrimental effect on the career of Police Chief Bryan Smith. Commander John Moseley, Commander Mike Walsh, Assistant Chief Kenneth Bung and Police Chief Bryan Smith never informed Plaintiff that they were aware of the illegal activity at the impound lot by these police officers. In fact, Plaintiff and Detective Gilbert Garcia informed Assistant Chief Bung that Ronnie Berglund, the Impound Supervisor, told Plaintiff and Detective Garcia that he and his supervisor, Aaron Rios, had previously notified the police administration about Captain Jerry Vesely’s actions in buying multiple cars from the impound yard. In order to avoid any semblance of complicity in criminal conduct by the Corpus Christi Police Department, Chief of Police Bryan P. Smith began his conspiracy to frame Plaintiff by making him a “suspect” in this vehicle impound matter. Plaintiff was interviewed by Internal Affairs on August 17, 2007 and again on November 27, 2007. The interview focused on fabricated allegations by Captain Jerry Vesely, Lieutenant Weldon L. Weber and Senior Officer Martin Jasso that Plaintiff (1) knew of police officers purchasing vehicles from the police impound lot and (2) never indicated that the practice was inappropriate or illegal. In addition, Assistant District Attorney Jack Pulcher participated in this conspiracy and provided a false statement to Internal Affairs that he never informed Plaintiff of any wrongdoing at the police impound lot. At no time during the questioning of Plaintiff David Torres did Assistant Chief Kenneth Bung, Commander John Moseley, Commander Mike Walsh or Chief Bryan Smith inform anyone that they had been aware of this criminal activity at the police department since 2004.
7.3 On April 22, 2008 Senior Officer Larry Serna at the direction of Defendant Bryan Smith conducted a polygraph examination of Plaintiff. According to Senior Officer Larry Serna, the polygraph examination of Plaintiff allegedly resulted in a finding of “Deception Indicated” regarding three (3) areas of inquiry – (1) Did Plaintiff have knowledge that police officers were purchasing vehicles through the police impound lot prior to May 16, 2007; (2) Was Plaintiff being truthful to Internal Affairs during Plaintiff’s two interviews; and (3) Did Plaintiff have knowledge that Captain Jerry Vesely had purchased a vehicle through the police impound lot prior to May 16, 2007. Plaintiff demanded a second polygraph from Chief of Police Bryan P. Smith, especially since the examination revealed “No Deception Indicated” regarding Plaintiff’s assertion that he initially received the police vehicle impound information from Assistant District Attorney Jack Pulcher. Although the findings were blatantly inconsistent and in all probability fabricated, Chief of Police Bryan P. Smith nevertheless denied Plaintiff’s request to allow a second polygraph examination or to review the results. In addition, Defendant City of Corpus Christi has to date refused to provide Plaintiff with the polygraph test and results so that he can review and test the polygraph examination for accuracy and intentional false readings. Plaintiff David Torres contends that the polygraph was used in a malicious attempt to falsely transfer criminal guilt from certain members of the Corpus Christi Police Department to Plaintiff David Torres. High command staff of the Corpus Christi Police Department’s administration knew that this criminal conduct at the impound lot had been occurring since 2004.
7.4 On April 23, 2008, Chief of Police Bryan P. Smith issued Plaintiff a letter of Contemplated Disciplinary Action in the form of Termination of Employment, stating in part, that “Honesty and integrity are paramount in the law enforcement profession.” This contemplated Letter of Termination was essentially based on statements made by persons who committed criminal acts and on a tainted and predetermined polygraph examination designed to make Plaintiff David Torres the scapegoat. In addition, the Internal Affairs’ file did not contain any interviews of vital witnesses that would prove that Assistant District Attorney Jack Pulcher, Captain Jay Vesley, Lieutenant Weldon L. Weber and Senior Officer Martin Jasso were not being truthful. It was patently obvious that the investigation by Chief of Police Bryan P. Smith and Internal Affairs was specifically intended to culminate in a predetermined and pernicious conclusion – To frame and falsely accuse Plaintiff of the criminal conduct and shift the guilt from the true criminal perpetrators to Plaintiff. Defendant Smith’s intent was to also quiet the Plaintiff. At no time did Chief Bryan Smith inform Plaintiff David Torres of his complicity with members of his administrative staff. Engaging in criminal conduct and using the police department for one’s personal illicit gain is outside the course and scope of Defendant Bryan Smith’s employment. As such, Defendant Bryan Smith at all times herein acted individually and outside the scope of his authority as Chief of Police for the City of Corpus Christi.
7.5 On April 25, 2008, Plaintiff and Corpus Christi Police Officers Association President Domingo Ybarra met with Chief of Police Bryan P. Smith. Initially, Chief of Police Bryan P. Smith offered Plaintiff “alternate disciplinary punishment”. This essentially would have placed Plaintiff on probation and at the mercy of the Chief of Police. “Alternative disciplinary punishment” means that the Chief of Police would place Plaintiff on probation, and the Chief of Police would have the authority to unilaterally decide when Plaintiff committed any infraction, subjecting Plaintiff to immediate termination without any right to an appeal or grievance process. Plaintiff refused the offer. Chief of Police Bryan P. Smith then gave Plaintiff the option to retire in lieu of termination. Plaintiff again refused the offer. At this point, Plaintiff told Defendant Bryan Smith, in the presence of CCPOA President, Domingo Ybarra, that Assistant Chief Kenneth Bung had committed several illegal acts and engaged in major violations of the Rules Manual. Defendant Smith stated that he did not want to do anything to Assistant Chief Bung because he was going to retire in August of 2008.
7.6 Since Plaintiff did not retire as expected and told Defendant Smith that he would have to terminate Plaintiff’s employment, Chief of Police Bryan P. Smith immediately gave Plaintiff a letter stating that he was demoted to Captain and was to immediately report to Commander J. V. Garcia for patrol duty. He also gave Plaintiff another letter stating that Plaintiff was suspended for two hundred forty (240) hours. Plaintiff signed the demotion and suspension letters, indicating receipt of the disciplinary punishment documents, in the presence of Corpus Christi Police Officers Association President Domingo Ybarra. As Plaintiff was about to leave the office, Chief of Police Bryan P. Smith pulled the disciplinary documents from Plaintiff’s hands and told Plaintiff that he had to discuss this situation with City “legal”. Plaintiff was told to return to the Chief’s office some time later in the afternoon. After allegedly meeting with “legal”, Chief of Police Bryan P. Smith returned to give Plaintiff a Letter of Reprimand. The letter did not mention the results of the polygraph examination nor Plaintiff having any prior knowledge of police officers purchasing vehicles from the police impound lot. Instead, Plaintiff was reprimanded because the criminal investigation of Senior Officer Martin Jasso “indicates that the level of said investigation was well below what I would consider an acceptable standard”, indicating “a lack of investigative integrity and attempts to make said investigation culminate in a predetermined conclusion.” In other words, Plaintiff David Torres was essentially accused of criminal conduct, i.e., tampering with evidence and conducting a criminal investigation to achieve false results. Defendant Bryan Smith knew that Plaintiff, Detective Gilbert Garcia, Captain John Houston and Lieutenant Raymond Lara had previously met with District Attorney Carlos Valdez to discuss the “impound lot” investigation and findings. Mr. Valdez informed them that it was a good case for prosecution but the statute of limitations had expired. In other words, this matter began in 2004 and no one in the Corpus Christi Police Department Command Staff with knowledge of the events presented the case to the District Attorney for prosecution within the statute of limitations. It was now too late.
7.7 At all times herein, Defendant Bryan Smith acted individually and outside the course and scope of his employment with the City of Corpus Christi, trying to protect himself and his job. Defendant Bryan Smith in concert with others in his administration engaged in contemptible conduct designed to destroy and ruin the career of an innocent policeman by falsely accusing Plaintiff David Torres of criminal conduct in order to conceal their own criminal activity and to “save their own hide” from possible criminal prosecution.
7.8 Prior to May of 2008, Plaintiff requested that the police department investigate several instances of wrongful conduct being perpetrated by various members of the department. Peter G. Merkl, Assistant City Attorney sent a letter dated May 14, 2008 to the undersigned counsel in which he assured Plaintiff that the allegations would be investigated by the Internal Investigation Division. No such investigation ever occurred. Instead, Chief Bryan Smith used the Internal Affairs Division for his personal use and began to essentially investigate every aspect of Plaintiff David Torres’ life in order to justify his nefarious plan to shift criminal culpability away from him and his cronies towards an innocent party with no regard to decency, honor or conscience.
7.9 After May 15, 2008, Defendant Bryan Smith made Plaintiff a criminal suspect in an alleged corruption case investigation. In fact, internal affairs and Defendant Bryan Smith contacted the Texas Ranger’s office to seek criminal charges against Plaintiff. It was determined that the allegations were unfounded and had no merit.
7.10 Defendant Bryan Smith also sent an internal affairs officer, Ruben Vela, to interview a Chief of Police from another city in an attempt to gather inculpatory information against the Plaintiff regarding an issue that Plaintiff had no involvement or participation in. It was determined that the allegations were unfounded and had no merit.
7.11 Internal Affairs investigators were also sent to the Child Advocacy Center to investigate alleged inappropriate conduct by Plaintiff relating to a civilian board dispute. The allegations were determined to be unfounded.
7.12 Defendant Bryan Smith also sent Internal Affairs investigators to interview a Corpus Christi police officer regarding a sexual harassment complaint to determine if the Plaintiff was involved in any manner with this allegation. The allegations were determined to be unfounded.
7.13 Defendant Bryan Smith also intentionally did not present material evidence and vital witnesses before the Jerry Vesely Arbitration hearing in order to predetermine the outcome, i.e., reinstatement of Jerry Vesely. Specifically, Captain Vesely, prior to his termination, had ordered three officers to make false statements in an affidavit in order to justify the seizure of a vehicle. Ultimately, one officer complied with the order and signed an affidavit containing false information which justified the seizure of a citizen’s vehicle. This vehicle was eventually released to the rightful owner with no impound fees assessed against the owner. Five police officers had made themselves available for the arbitration hearing to testify about Captain Vesely’s inappropriate and illegal conduct regarding this false affidavit. Lieutenant Jason Brady also presented an investigative packet to internal affairs regarding Jerry Vesely’s actions in attempting to force police officers to file false reports. In addition, Captain John Houston also forwarded a similar investigative packet from the Criminal Investigations Division to Internal Affairs regarding Jerry Vesely ordering police officers to sign false affidavits to justify the seizure of a vehicle. Defendant Smith did not include this matter in Jerry Vesely’s Notice of Termination and never requested the presence of any of these officers at the arbitration hearing for testimony. In addition, Plaintiff was the commanding officer in charge of the Vesely impound investigation. Although Plaintiff had specifically contacted City legal to make himself available for the arbitration hearing, he was never contacted to testify at the arbitration hearing. Jerry Vesely was reinstated with back pay. Captain Jerry Vesely is now a supervisor in the Corpus Christi Police Department proudly wearing a badge and carrying a gun.
7.14 Defendant Bryan Smith did all of the above in his individual capacity in a concerted attempt to frame and bring false charges against the Plaintiff, using the Internal Affairs Division as his personal rogue detective agency in an attempt to falsely accuse Plaintiff of criminal conduct and to forever destroy Plaintiff’s career in order to protect Defendant Bryan Smith and his cronies and to keep these illicit criminal acts secreted.
7.15 There is no question that Defendant Bryan Smith engaged in this conduct to personally protect himself. Defendant Bryan Smith attempted to garner positive media publicity by publically proposing marriage to a female on April 15, 2007. (C.C. Caller-Times: Chief steals no bases, just her heart) Unfortunately, this media honeymoon abruptly ended in less than a week. Defendant Bryan Smith was accused of rape by his former girlfriend, and media frenzy ensued. (C.C. Caller-Times: DA: Woman accuses police chief of rape; Woman who accused police chief has attorney; Incident report involving police chief released; City hangs on to reports in allegations against chief; Report: Smith texted woman; Smith inquiry being delayed) In May of 2007, the same month that the Plaintiff brought this impound lot scandal to the attention of Assistant Chief Kenneth Bung, the alleged rape case was set to go to the grand jury for indictment. (C.C. Caller-Times: Smith case goes to grand jury on May 25; Jurors to hear Smith case on May 25; Carlos Valdez is right to expedite the Smith case; Valdez, Ranger discuss evidence; Grand jury meets Friday in sexual assault case against police chief; Smith’s accuser arrives at grand jury hearing) During this period, Bryan Smith was forced to hire an attorney to represent him and was forced to admit to his fiancé that he had strayed from their relationship. (C.C. Caller-Times: Smith denies sexual assault: Texas Rangers Investigate) Defendant Bryan Smith’s entire life was now under public scrutiny. (C.C. Caller-Times: No indictment for police chief; No indictment) Also in May of 2007, the Police Officer’s Association decided to back Skip Noe in his decision regarding Bryan Smith’s future. (C.C. Caller-Times: City’s police association backs Noe in Smith case) In June of 2007, the local newspaper reported that Bryan Smith now faced his greatest challenge which was to try and regain some credibility with the community and his department after the grand jury decided to “no bill” the rape charge. (C.C. Caller-Times: Police chief takes on his greatest challenge)
7.16 In July of 2007, a former employee reported to the local media that the Corpus Christi Police Department was backlogged by over five thousand (5,000) police reports not being entered into the system. (C.C. Caller-Times: Ex-police lieutenant points out backlog of reports) The former employee indicated that it was a four month backlog. Again, Bryan Smith found himself under scrutiny answering questions about his failed leadership. Bryan Smith did admit to the backlog and attempted to diffuse this adverse publicity by providing veiled excuses.
7.17 In August of 2007, Bryan Smith found himself again in the media unable to shake the accusation of rape. With numerous people and agencies making open records requests to the Texas Department of Public Safety for the rape reports and investigation, Bryan Smith again hired an attorney to try to keep them concealed. In August of 2007, however, the Attorney General ruled that the public interest in determining the credibility of its police chief far outweighed any privacy issues and ordered the rape investigation and reports be made public. (C.C. Caller-Times: AG: Rangers must give chief’s accuser info) It is during August that the first internal affairs interview occurred with the Plaintiff – now a suspect to alleged criminal conduct regarding the impound lot matter.
7.18 In November of 2007, the Chief came out publicly stating that the officers had abused their power in purchasing vehicles from the impound lot - but did not mention that the information had come from and was brought to light by the Plaintiff and that this practice had been going on for years. (C.C. Caller-Times: Police captain put on paid leave in probe of impound lot practices) In November, Plaintiff was again brought before Internal Affairs for questioning regarding the impound lot investigation.
7.19 In December of 2007, the Chief of Police found himself defending the department regarding a man in custody that died after being pepper sprayed by his officers. (C.C. Caller-Times: Man dies in police custody) These officers were put on paid administrative leave pending an investigation. Also in December, the newspaper printed an article advising the public that there would be a vote to determine whether a majority of the Corpus Christi Police Officer’s Association members still had confidence in Bryan Smith and other head administrators. (C.C. Caller-Times: Police group to take confidence votes) The vote was to occur in January of 2008. (C.C. Caller-Times: Local police union tallies election results) At the end of December 2007, Bryan Smith issued a memorandum making it a violation of policy for police officers or police department employees to purchase anything at auction or from the impound lot. (C.C. Caller-Times: No employee purchases of city property or seized items.)
7.20 In January of 2008 and in a very public vote, the Corpus Christi Police Officer’s Association issued a “no confidence” vote in Bryan Smith. (C.C. Caller-Times: Officers group counts no confidence ballots) Bryan Smith remained in public scrutiny.
7.21 In January of 2008, the police department suffered a devastating loss of one its officers in a car wreck. It was later determined that the officer was not using his safety belt. The Chief of Police had to again answer questions about why his own officers, despite warning, were not using their safety belts while driving their police units. (C.C. Caller-Times: Report: Officer did not buckle up)
7.22 In March of 2008, the media again reported on major deficiencies in the police department, reporting that Detective Michael Hess was being placed on leave for hindering prosecution of a defendant. (C.C. Caller-Times: 2 police employees on paid suspension) And then in April of 2008 information surfaced that a long time clerk of the police department had managed to embezzle over fifty thousand dollars from payroll at the expense of taxpayers. (C.C. Caller-Times: Payroll clerk in inquiry resigns) In April of 2008, Defendant Smith ordered a polygraph examination of Plaintiff regarding the impound investigation and subsequently issued Plaintiff a letter of Contemplated Disciplinary Action in the form of Termination of Employment.
7.23 As a result of this adverse publicity, Defendant Bryan Smith did everything he could to silence the Plaintiff and shift culpability to someone other than himself and his command staff. His personal life was also under constant scrutiny during this period. Defendant Bryan Smith’s whole life was crashing down around him, and he knew that he couldn’t afford one more embarrassing scandal. Defendant Smith could not afford the public knowing that he and high ranking members of the police department had known about this blatant “abuse of power” and chose to do nothing to stop this criminal activity. Since Defendant Smith had everything to lose, he engaged in an illicit and concerted attempt to frame the Plaintiff by unscrupulously falsely accusing him of criminal conduct, without regard to the innocence of a decent and honest “cop”.
G. Intentional Infliction of Emotion Distress
8.1 Defendant Bryan Smith’s conduct in attacking the Plaintiff personally, lying about his involvement in this impound scandal, threatening termination and all of the other behaviors described above was intentional and reckless. Furthermore, it was extreme and outrageous conduct. Defendant Bryan Smith’s conduct proximately caused severe emotional distress to the Plaintiff and the severe emotional distress cannot be remedied by any other cause of action. The Plaintiff suffered humiliation, scrutiny among his peers, had to undergo a polygraph which was fixed, had to have his personal life scrutinized for reporting a crime at the wrong time in Bryan Smith’s life. Plaintiff further contends that Defendant Bryan Smith acted with malice.

H. Permanent Injunction
9.1 The Plaintiff requests that after a trial on the merits, the Court issue a permanent injunction to prevent Bryan Smith from using his position to further his own personal agenda and to refrain from using his position to further his personal vendettas. In addition, Plaintiff requests that there is no adequate legal remedy if the court does not issue this permanent injunction as the amount and degree of damage Defendant Bryan Smith and the City of Corpus Christi could do to the Plaintiff, and countless others, is immeasurable by any standard. The acts being committed by Bryan Smith and the City of Corpus Christi are prejudicial to the Plaintiff. There is a probable right to recover on the intentional infliction of emotional distress claim and a clear right to this injunction. Without an injunction, the Plaintiff will suffer a probable injury and that harm is imminent, the injury would be irreparable, and there is no other legal adequate remedy at law.
I. Conclusion
10.1 The ability of people to use their position to further their own personal agenda is a very real consequence of having a “title.” The Plaintiff was moving information up the chain of command as he was supposed to when Defendant Bryan Smith decided that his personal reputation could not endure another scandal and decided to silence him. Defendant Bryan Smith was on the verge of losing everything in his personal life…his job, his fiancé, his credibility, his reputation and his dignity. He viciously lashed out at the Plaintiff in an offensive and malicious attempt to destroy the career and reputation of an innocent police officer and human being.
J. Attorney’s Fees
10.2 Attorney fees. Plaintiff is entitled to recover reasonable and necessary attorney fees that are equitable.

G. Jury Demand
11. Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
H. Conditions Precedent
12. All conditions precedent to Plaintiff’s claim for relief have been performed or have occurred
I. Request for Disclosure
13. Under Texas Rule of Civil Procedure 194, Plaintiff requests that Defendant disclose, within 50 days of the service of this request, the information or material described in Rule 194.2.
J. Request for Production
14. Under Texas Rule of Civil Procedure 196.2(a), Defendants are requested to respond to Request for Production attached herein within fifty (50) days of the service of this request.
K. Prayer
15. For these reasons, plaintiff asks that defendant be cited to appear and answer and that the court issue a permanent injunction preventing Bryan Smith from using his position to further his personal agenda and his personal vendettas and the City of Corpus Christi from encouraging, participating in conduct and authorizing its employees at the Corpus Christi Police Department from using their position to further personal vendettas to Plaintiff’s detriment. In addition, Plaintiff asks for the following damages:
a. Actual damages;
b. Unliquidated damages;
c. Exemplary damages;
b. Prejudgment and postjudgment interest;
c. Court costs;
d. Attorney fees; and
e. All other relief to which Plaintiff is entitled both in law and in equity.
Respectfully submitted,

433 South Tancahua
Corpus Christi, Texas 78401
TELEPHONE: (361) 882-1919
FACSIMILE: (361) 882-2042

1 comment:

Anonymous said...

I just have one question: Who uses more hair dye? Torres or Smith? LMAO.