KILLEEN (June 26, 2013)—Prosecutors have dismissed the case against a Bell County smoke shop owner who was charged in what police called the largest seizure of synthetic marijuana ever in the county after a defense lawyer discovered a document that contradicted an investigator’s claim that a substance an informant obtained from the shop was actually synthetic pot.
Anthony Joseph, 43, owner of the Smoke Shack, on Rancier Avenue, was arrested in September 2012 and indicted in February for intent to deliver a controlled substance after police searched both his business and his home and recovered what they said was more than 775 grams of a substance believed to be "Spice", or synthetic marijuana.
Joseph was charged with three felony counts of possession with intent to deliver a controlled substance over 400 grams and a misdemeanor count of possession, stemming from the seizure in September 2012.
But on Friday the charges against Joseph were dismissed because prosecutors noticed some inconsistencies in police reports that were filed in the case Bell County District Attorney Henry Garza said.
"This is not an action we take lightly nor do we do it with frequency,” Garza said Wednesday.
"A host of issues had developed that related to the prosecution of these cases,” he said.
"We conducted a review of what took place and a manner in which things played out and have talked with KPD about what resulted."
As a result of the dismissal, a car and more than $60,000 in cash that seized as evidence were ordered returned to Joseph.
Killeen police Sgt. Eureka Williams investigated the case and at the time filed a sworn arrest warrant affidavit in Justice of the Peace Bill Cooke's court that said she had received evidence through a confidential informant who obtained a substance from the shop that tested positive for synthetic marijuana.
But Joseph's lawyer uncovered another statement from Williams two days before she filed the affidavit that said the substance the informant gave her was not in fact synthetic marijuana.
The earlier report says the substance the informant obtained tested negative and concluded that the case should be closed and the evidence destroyed and that Williams' supervisor agreed with that decision.
Killeen police spokeswoman Carroll Smith said the inconsistency was the result of human error and said there was no intent or malice in the sworn affidavit.
She said when the officer submitted the first report, which said the substance the informant obtained tested negative, she copied and pasted verbiage from an earlier report that read, "Once back at the office I tested the substance with a reliable field test kit and received a presumptive negative reading for the presence of synthetic cannabis...Evidence may be destroyed. This case is closed by exception."
"She just cut and pasted from a negative response case (and) she didn't realize it was the same one," Smith said.
The affidavit submitted for the search warrant accurately indicated that the substance the informant provided tested positive, Smith said.
In the affidavit, Williams wrote that she “tested the suspected synthetic drugs with a reliable test kit and it showed a positive presumptive identification for Synthetic Cannabinoids (Spice) which is a controlled substance listed in the Texas Health and Safety Code.”
"When she swore to the judge that it was a positive response...she was swearing off a case that came back with a positive response," Smith said.
"There was no malice intent she did not lie she did not provide false information," she said.
Smith said changes in the administrative process have been made in these types of cases to prevent such a mistake from happening in the future.
"We have made some changes as far as the particulars; no more cutting and pasting, you type everything out," she said.
Defense attorney David Fernandez, however, said Williams lied in the sworn court document, which was used to obtain the warrant that led to the record seizure of synthetic marijuana.
"Detective Eureka Williams, the lead detective in Anthony Joseph's case, misled and deceived Judge Cooke in a sworn search warrant affidavit in order to get a search warrant for the Smoke Shack, which is owned by Anthony Joseph," Fernandez said in a statement to News 10 Wednesday morning.
"A police officer must never mislead or deceive a judge in order to get a search warrant," he said.
Cooke told News 10 Wednesday he would have no comment on the case in light of the possibility of a subsequent investigation.
Williams is a 10-year veteran of the force and last March was promoted to sergeant, now assigned as supervisor on the patrol division night shift, Smith said.
(Paul Gately contributed to this story)