The mother-son relationship of 87th District Judge Deborah Oakes Evans and elected County Attorney Brian Evans is coming into question once again, this time regarding a search warrant issued in relation to a traffic stop from almost two years ago.
During the early morning hours of September 23, 2018, DPS Trooper Dallon McKay executed a traffic stop when he observed a pickup truck crossing onto the shoulder at least two times on Highway 84 between Teague and Fairfield.
Upon observing a strong odor of alcohol, Trooper McKay administered a standardized field sobriety test.
The Investigative Report reads that, based on Trooper McKay’s observations and the driver’s performance during the sobriety tests, 65-year-old Donald Barger of Mexia was placed under arrest for driving while intoxicated.
The Report further reads that among the objects found when Barger’s vehicle was inventoried were a handgun (about which Barger had earlier informed the arresting officer), an open bottle of whiskey, and an open bottle of beer. Both bottles, according to Trooper McKay’s report, were located within reach of the driver’s seat.
Trooper McKay reports that when Barger was asked to provide a sample of his breath for the portable breath test, he appeared to comply, but would puff out his cheeks and make a spitting noise. “Barger was not blowing into the straw,” reads the Report.
Barger was then transported to the Freestone County Jail, and Trooper McKay obtained a search warrant for Barger’s blood for analysis.
And, here is where Barger’s defense attorney was presented the opportunity to file a Motion to Suppress the arrest, the search warrant, and the blood test.
The Search Warrant, issued just under two hours after Barger’s initial traffic stop, was signed by 87th District Judge Deborah Oakes Evans.
As reported in this news publication, it was established early on, when prosecutor Brian Evans first took his oath of office in 2017, that Judge Evans could no longer preside over any criminal matter in Freestone County, Texas while her son served as the elected County Attorney.
A judge is disqualified from presiding over a case were they share a familial relationship with an attorney, in order to preserve a citizen’s right to due process and a fair and impartial judgment.
While District Judge Evans is not presiding over the Barger case, as it is being tried in County Court, the Motion to Suppress asserts that, “Judge Evans knew from the face of the search warrant affidavit that the case would be prosecuted by her son or an assistant in his office in Freestone County.”
The Motion further states that Judge Evans is prohibited by the Administrative Judge of the Judicial Region, representing Freestone County, “from conducting any hearings or participating in any criminal cases,” due to her relationship as mother to her son, elected County Attorney Brian Evans.
According to Texas Code of Criminal Procedure, Title 1, Chapter 18, a search warrant may only be issued by a magistrate who is an attorney licensed by the State of Texas.
County Judge Linda Grant meets this criteria. However, as asserted in the Motion to Suppress, “no effort was made by the arresting officer to seek authorization from Freestone County Judge Linda Grant, instead of presenting the Affidavit to the mother of the prosecutor in the case.”
It is important to note that on March 4, 2020, Judge Grant filed a Motion For Appointment of a Visiting Judge in the Barger case. Retired District Judge Sam Bill Bournias has been named to serve as presiding judge.
Such an appointment may be done for “good cause,” including when a county judge is absent, incapacitated, or disqualified in a civil or criminal case.
According to Article V, Section 11 of the Texas Constitution, a judge would be disqualified if:
- The judge may be the injured party,
- The judge has been of counsel for the State or the accused, or
- The judge is connected to the party or the accused by consanguinity (family relation) or affinity (marriage) within the third degree.
The Motion to Suppress Arrest of Defendant and Motion to Suppress Search Warrant and Blood Test Analysis was filed as amended on January 15, 2020 by defense attorney, David E. Moore.
