A Killeen man convicted of aggravated robbery should be released from prison soon after the Texas Court of Criminal Appeals vacated the conviction and ordered a new trial, his attorney said Thursday.
George Robert Powell III, 46, was convicted more than 11 years ago in a Bell County courtroom for the robbery of a Killeen convenience store. He was sentenced to 28 years in prison but always claimed he was innocent because of notable height discrepancies between the suspected robber and Powell. A series of Bell County hearings involving the Innocence Project of Texas started in 2017 and ended Jan. 30, 2018.
“The court agreed with Powell’s claims that the Bell County prosecutors (in Powell’s trial) failed to disclose exculpatory evidence to his trial lawyers that could have resulted in Powell’s acquittal,” said Michael Ware, Innocence Project of Texas executive director. “In fact, they knowingly presented perjured testimony by their star witness in their effort to get him convicted.”
Bell County District Attorney Henry Garza responded Thursday to the court’s ruling.
“Yesterday, the Texas Court of Criminal Appeals denied the defense arguments presented in their motion for rehearing before the Texas Court of Criminal Appeals and issued a mandate,” Garza said. “Where a mandate issues, as in this instance, the effect is that the appellate review is completed at this time and George Powell will be returned to Bell County for a new trial.”
Powell’s attorneys, Ware and Walter Reaves, filed a motion to expedite his release from a Texas Department of Criminal Justice prison in Gatesville. Powell could be transferred to the Bell County Jail or a new bond could be set to get Powell released until his new trial is held, Ware said.
“It’s up to the judge, but we hope it happens any day now — but it should happen within at least two weeks,” Ware said. “We hope he is released on a personal bond.”
Powell remained jailed Thursday in the Alfred Hughes Unit in Gatesville, and no bail was set.
Motion to disqualify DA office
The Innocence Project of Texas submitted a motion several weeks ago to disqualify the Bell County District Attorney’s office from any association with Powell’s new trial, but the motion hasn’t been heard yet, Ware saud.
Ware believes it is critical to disqualify that office because of its earlier “prosecutorial misconduct.”
“It’s highly likely they would do it again,” he said.
Previously, Garza objected to and disputed the prosecutorial claim. He said he didn’t find the words “prosecutorial misconduct” in an appellate ruling.
“Allegations suggested by Mr. Ware concerning the prosecutors in this case are not consistent with the testimony and facts provided in the previous proceeding,” Garza said.
Garza defended the character of two assistant district attorneys involved in the case — Paul McWilliams is Garza’s first assistant, and Leslie McWilliams. The pair is married.
It is Ware’s contention that the McWilliams should both have ethical and legal repercussions for their actions in the Powell trial. He previously said Garza is required to file a state bar grievance against the couple for concealing important information and putting out falsehoods as truth.
Any matters concerning the case will be addressed once Powell is transferred back to Bell County’s jurisdiction, Garza said. “Any legal matters will be presented before the court and we are prepared to address them and move forward on the case at the appropriate time,” he said.
Reasonable bail requested
The motion asked the trial court to grant reasonable bail once Powell is transferred to Bell County.
The Court of Criminal Appeals did not rule on if Powell was innocent, although Powell’s attorneys pointed to several things that backed up his assertion.
For instance, store clerks in the Killeen 7-Eleven robbery said the suspect was between 5 feet, 5 inches and 5 feet, 8 inches tall while Powell is 6 feet, 3 inches.
Bell County Judge John Gauntt didn’t address the claim Powell was innocent, but did tell the Court of Criminal Appeals he believed Powell should get a new trial.
It was a year between the time the Powell hearings ended Jan. 30, 2018, and Gauntt made his recommendation on Feb. 1, 2019.
Representing the prosecution during the Powell hearings was Assistant District Attorney Sean Proctor.
The Court of Criminal Appeals did agree with defense attorneys that a jailhouse informant testified against Powell to get “favorable treatment” for his own criminal case. Demetric Smith gave false testimony when he testified he wasn’t getting any special benefits, and the prosecutors did not correct the false testimony.
Smith was a repeat offender, but he was released on a personal recognizance bond, enhancement charges were waived, he was given credit for time served and was released without serving even a day in prison, records showed.
The fight continues
Powell’s current projected release date is June 18, 2036. He would be eligible for parole June 18, 2022, according to Texas Department of Criminal Justice online records.
“George is obviously very excited and relieved. He is innocent and has claimed that now for years,” Ware said. “This is definitely a step in that direction.”
“While we are thrilled about his imminent release, we will not stop fighting until we receive George’s full exoneration,” Ware said.
If Bell County is disqualified from the case, a special prosecutor would be appointed. Ware’s office hasn’t yet decided if it will request a change of venue if that occurs.