‘Snakebit’: District Attorney dismisses felony case against Waco man charged with selling fake electronic goods

McLennan County Sheriff’s Office failed to submit updated offense reports
File Photo: Apple Macbook
File Photo: Apple Macbook(MGN ONLINE)
Published: Aug. 30, 2022 at 7:26 PM CDT
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WACO, Texas (KWTX) - The McLennan County District Attorney’s Office dismissed a felony case mid-trial Tuesday after it was discovered that the Sheriff’s Office failed to submit updated offense reports to the DA’s office, which, in turn, should have been turned over to the defense.

Prosecutor Kristi DeCluitt, who dismissed the case Tuesday, described the third-degree felony case charging Michael Fluellen with trademark counterfeiting violations as “snakebit.”

Fluellen was set for trial last month in Waco’s 19th State District Court when a court scheduling conflict caused the case to be postponed until last week. During Fluellen’s trial last week, which County Court-at-Law Judge Ryan Luna agreed to preside over, the trial hit a glitch after one of the jurors tested positive for COVID.

The trial proceeded with an alternate juror until the new juror realized she went to school with the complaining witness in the case and told the court she would place more weight on his testimony because of their longtime friendship.

Luna was forced to declare a mistrial and reset Fluellen’s case to go to trial again beginning this week. Fluellen was charged with bilking an online customer by selling him fake electronic goods for $900.

On Monday, during the testimony of Sheriff’s Cpl. Brent Ewing, defense attorney Michel Simer noted discrepancies in the report from which he based his testimony and the one prosecutors provided to her and co-counsel Josh Tetens during the pretrial discovery process.

Prosecutor Kristi DeCluitt explained that the deputy was reading from an updated copy that she said had not been supplied to the district attorney’s office.

The defense attorneys asked for a mistrial, which Luna denied. However, the judge instructed the jury to disregard a portion of Ewing’s testimony that dealt with the value of a MacBook.

Before the trial kicked off Tuesday morning, Deputy Jud Tippie alerted the court that he also had a corrected copy of a report, which Simer and Tetens confirmed they had not seen.

DeCluitt asked for a recess to investigate the discrepancies. She returned and announced the DA’s office decided to dismiss the case because it is “snakebit.”

“The DA’s office was not aware that they did not have the corrected copy and neither did we,” Tetens said. “We later learned that it happened because the old system created that problem, but the new system at the sheriff’s office has corrected that problem. Those corrections were made the same day that the report was filed. It wasn’t like they came back and changed it months later. They all happened the same day in 2019.”

The corrected reports contained the values of the devices found in Fluellen’s vehicle that were not contained in previous reports, Tetens said. DeCluitt said the role of prosecutors is to seek justice ­- not to merely rack up convictions at any cost.

“I took an oath to seek justice and I dismissed the case in the interest of justice,” DeCluitt said.

Sheriff’s Office Chief Deputy David Kilcrease said he was told that the changes were made the same day the report was generated and “didn’t really affect the report at all.”

“The DA’s office said they never received the report as an updated report,” Kilcrease said. “It should have been sent over, but we are going to have to do some research to see what happened. The sentence that was changed did not change anything in the report. But as soon as the defense started their complaining, the prosecution just folded.”

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