DA dismisses charges against man who sent phallus shaped chocolate candy bar to McLennan Co. sheriff’s office employee

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Published: Jul. 1, 2022 at 4:33 PM CDT
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WACO, Texas (KWTX) - A Chicago man who has insisted on his day in court after being arrested for sending a large phallus shaped chocolate candy bar to a McLennan County Sheriff’s Office employee in 2017 is not going to get his wish.

Instead of bringing Thomas Roy Gourneau to trial on two misdemeanor counts of harassment, the McLennan County District Attorney’s Office on Thursday dismissed the charges, explaining in court documents that a successful prosecution is “unlikely.”

Gourneau sent the chocolate bar shaped like male genitalia anonymously to Tracy Chance at the sheriff’s office in December 2017. Gourneau, who formerly lived in Cedar Hill in Williamson County, has said he sent the chocolate novelty item as a prank, and both he his attorney were shocked that the sheriff’s office turned what Gourneau considered a gag into a criminal case.

Gourneau used to date Chance’s ex-wife, and the men have a long history of animosity, including unsettling emails from Gourneau to Chance, officials said. The chocolate penis was merely the last straw in a string of bad blood between the men, officials said.

The case was delayed for two years after Gourneau’s attorney, Cody Cleveland, and other defendants around the state challenged the constitutionality of the harassment statue as being overly broad and vague. The Texas Court of Criminal Appeals ruled three months ago that the statute is constitutional, which moved Gourneau’s unusual case from the holding pattern back onto the trial docket.

Cleveland said with a July 6 pretrial hearing approaching, the DA’s office had to decide if it was going to try the case or dismiss it.

“I was highly looking forward to trying this one,” Cleveland said. “I liked our odds going in and was hopeful of a jury acquittal of my client on the charges. I think the dismissal shows the state agrees that a trial wouldn’t have been successful for them. I think anything other than a dismissal sets a bad precedent for people who commit pranks. I think it was filed because the victim worked for the sheriff’s office and the sheriff’s office sent it over. The DA’s office is part of the law enforcement family and they made the decision to proceed with the charges.

“Maybe the sheriff’s office can go dig up another prank, like a kid putting a Whoopee Cushion under a classmate’s seat or a flaming bag of dog poop on someone’s porch,” Cleveland said.

Chance was a grant coordinator for the sheriff’s office before leaving that job to move from Waco. He returned to Waco and now works as a jailer, said Sheriff Parnell McNamara.

McNamara has been a vocal critic of District Attorney Barry Johnson and played an active role in Johnson’s 70% to 30% defeat at the hands of Waco attorney Josh Tetens in the March Republican Primary.

When asked about the DA’s office dismissing the harassment cases, McNamara said, “Well, they have been dismissing every other case up there, so why not that one, too?”

Johnson and DA’s office misdemeanor chief Rebecca Lawson did not return phone messages Friday.

Sheriff’s Office Detective Michael Miller arrested Gourneau in August 2018 on Class B misdemeanor warrants after an investigation that included subpoenaing Gourneau’s bank and credit card records. The complaint alleged that Gourneau “with intent to harass, annoy, alarm, abuse, torment, or embarrass” Chance initiated “communication with the complainant, and in the course of the communication, made an obscene comment or suggestion, namely the defendant mailed a package to Tracy Chance containing a message suggesting that he engage in fellatio.”

Sheriff’s office reports showed that the property seized was “chocolate candy.”

Cleveland said he will file a motion seeking the return of the offending evidence to Gourneau.

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