Criminal JusticeLocal NewsAttorneys for Accused Austin Police Officer Ask DA’s Permission to Present Evidence to Grand Jury

District attorneys control what grand juries see and hear as evidence before deciding whether to issue an indictment.
December 20, 2022
The attorneys for an accused Austin police officer called on Travis County District Attorney José Garza to allow them to present evidence to the grand jury considering an indictment on Tuesday.

Garza is presenting evidence to a Travis County grand jury, pining for an indictment in an officer-involved shooting incident that occurred on January 5, 2021. On that day, “Mr. Alexander Gonzales died as a result of multiple gunshot wounds in an incident involving an off-duty Austin Police Department officer and another officer who was on duty,” the district attorney’s office September case summary reads.

Gabriel Gutierrez was the off-duty officer in question and Luis Serrato, facing possible indictment Tuesday, was the on-duty officer during the incident.

The district attorney has sole discretion over what evidence and testimony is presented to and withheld from the grand jury that makes the initial decision on an indictment — which is not itself a finding of guilt.

In April last year, Austin Police Department (APD) released the 911 recording and camera footage that described Gutierrez’s account of the events in real-time.

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“At this time, we are formally requesting your approval to appear before the grand jury on behalf of Officer Serrato,” the attorneys’ letter reads. “Based on the unprecedented number of police officer indictments during your time in office, we believe our presence is required to ensure the grand jury receives a fair and thorough presentation of evidence. Allowing us to appear before the grand jury will also demonstrate a meaningful commitment to your campaign promises of fairness and transparency.”

The attorneys said they were notified of the grand jury presentation on December 15, five days before its scheduled date.

Texas’s Code of Criminal Procedure reads in part, “No person may address the grand jury about a matter before the grand jury other than the attorney representing the state, a witness, or the accused or suspected person or the attorney for the accused or suspected person if approved by the attorney representing the state.”

To speak to the grand jury, the defendant’s representatives need permission from their opposing counsel.

The incident was a case of road rage where Gonzales, in the car with his girlfriend and their infant child, cut off off-duty APD Officer Gabriel Gutierrez and then “pointed a gun at him.” Gutierrez then shot Gonzales from his car and the two vehicles pulled to a stop adjacent to each other.

After some time, Serrato arrived on the scene with other officers as backup, which is when the 911 call ended. Dash and body camera footage then shows Serrato and another responding officer shouting at Gonzales to get on the ground while the subject stood by his open car door. Gonzales then walked around the vehicle and reached into the car. He was shot by Officer Serrato and died on-scene. Gonzales’ girlfriend was also shot but survived her injuries. The infant was unharmed.

A gun was found by police on the floorboard of the driver’s seat in Gonzales’ car. Gonzales’ family and their attorneys state that the deceased was checking on his infant when he reached into the vehicle; the video shows officers were not aware the child was in the back seat but heard the woman shouting “my baby” during the incident.

Both Gutierrez and Serrato were then assigned to administrative duty as the investigations panned out.

Gonzales’ parents have sued the city over the death of their son — a familiar situation for the city, which has settled multiple lawsuits in shootings involving officers.

Ervin and O’Connell are representing eight of the 19 APD officers indicted for aggravated assault pursued by Garza’s office for the use of less-lethal bean bag rounds during the 2020 protests-turned-riots. The rounds caused serious injuries to some in the crowd and were allegedly defective — a fact that the department, but not the individual officers who fired them, knew at the time.

In at least one of those cases, Ervin and O’Connell filed a motion to compel the release of the list of witnesses presented to the grand jury by Garza. They’ve frequently questioned the district attorney for evidence presented to the grand jury while pursuing these police-related charges — especially the evidence and testimony they believe were withheld.

Both during his campaign and since taking office, Garza has made prosecuting police for alleged misconduct a priority.


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Brad Johnson

Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.