WOOD COUNTY, Texas — The trial of a Wood County constable under federal indictment on accusations of ordering his police dog to bite a person who was not threatening and falsifying an official document began Monday.
Wood County Pct. 2 Constable Kelly Smith is charged with deprivation of rights under the color of the law and falsification of a document. At the start of the trial, Smith entered a not-guilty plea.
A grand jury found that on July 25, 2022, Smith directed his police dog to bite a suspect who did not pose a threat, which resulted in bodily injury to the suspect, according to the indictment. Smith is also accused of knowingly falsifying entries in an affidavit saying the suspect failed to comply with his commands.
In the prosecution’s opening statement, the attorney said Smith and his K-9 were called to help Hawkins Police Department officers who had warrants for Robert Evans’ arrest. The prosecutor said warnings were given to Evans and he tried to surrender, but the K-9 continued to bite him.
“He had one job and that was to arrest Robert Evans with the least amount of force,” the prosecutor said. “He failed at his job.”
The prosecution also noted Smith’s other charge of falsifying a document, saying that he tried to cover up his actions.
According to an indictment, Smith falsely said in an affidavit he gave his dog the heel command, but the grand jury found Smith gave the dog the bite command.
Smith’s defense said in its opening statement that Smith responded to the scene of a man with warrants for over a month who had barricaded himself in a trailer. The attorney said Evans peeked his head out of the trailer and went back inside after he saw officers on the scene.
The defense called Evans a prime witness for the FBI to get a predetermined outcome of putting someone away. Smith’s attorney claimed that other officers on the scene who arrived before Smith, like the Hawkins police, were waiting for someone else to clean up their mess.
The defense said Evans was given a warning from a Wood County deputy, Smith went into the trailer with his K-9, and Evans chose to hide in the bathroom.
His attorney added none of the evidence will show Evans gave up peacefully. The defense said when the incident in the trailer happened, Evans would not let go of the K-9’s collar.
The prosecution’s first witness, an FBI special agent, who investigated the case against Smith, testified an officer should only use force considered reasonable for the situation.
The agent said Wood County Pct. 3 Constable John McQueen, one of the other officers on the scene of Evans’ arrest, called the FBI regarding what happened during Evans’ arrest on July 26, 2022.
According to the agent’s testimony, McQueen said a K-9 bit and dragged Evans and based on his statements, an investigation was opened. The agent reviewed body camera footage from all officers involved, police affidavits and Evans’ medical records.
In a phone call, Smith told the agent he went to help Hawkins police with the arrest, and the K-9 didn’t bite Evans’ foot until Evans kicked the dog. He also mentioned Evans tried to strike Smith and the K-9 with a plunger, the agent testified.
The agent testified in the video Smith can be heard giving the bite command. The prosecution showed multiple body cam videos, including from Wood County Deputy Austin Milbourn.
The video shows Milbourn yelling a warning about the K-9 coming into the trailer. When Evans is found in the bathroom, the K-9 can be seen biting Evans on the foot and at one point, Smith yells “Let go of my dog.”
Evans said in the video he wanted to give up and didn’t want to be bitten. The K-9 was brought in and out of the bathroom. At one point, Evans has a plunger for a second and Smith punches Evans in the face.
The agent testified the bite command was given several times and he would consider the actions “excessive force.” In the agent’s testimony, he said Evans was not resisting and Smith was not telling Evans what to do.
Smith had Evans in a neck hold and the K-9 was pulling Evans out of the bathroom, the agent said, adding the K-9 received no commands after biting Evans. The agent said there was no reason why Evans couldn’t have been taken into custody sooner.
In the video, Evans claims he tried to surrender and put his hands up when Smith and the K-9 came into the bathroom. Milbourn helped Evans out of the home and EMS treated him for his injuries.
The prosecution also showed McQueen and Smith’s body camera footage as well as photos from the video. In those videos, Smith is seen telling the K-9 to find Evans without wearing its leash. While in the bathroom, Evans is pushed further into the room with nowhere to go.
The photo showed Evans had put his hands out of him to surrender, he had no weapons and the bite command for the K-9 was given, the agent testified.
The trial is continuing Tuesday morning at the federal courthouse in Tyler.