Perfect Timing: How Malcontent Wiseasses Tried to Prove a Point About Politics and Ended up Charged as Felons
Adrian Heath heard the jury on that October morning loud but not clear.
The foreman exhaled the word "guilty," and Heath felt its jarring weight in his head and his stomach as he stood in a Montgomery County courtroom.
Heath was now a felon, convicted by the state of Texas for voter fraud, a charge pushed by the voting enforcement unit of state Attorney General Greg Abbott's office.
What he couldn't quite figure out was just how he had become a convicted criminal. At 56 years old, the Australian immigrant and naturalized U.S. citizen had never been in a criminal court in his life. Now he faced two years in prison, with a judge scheduled to hand down his sentence on January 30.
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In May 2010, Heath, along with nine of his fellow suburban neighbors from in and around The Woodlands, gathered at a Residence Inn hotel inside the confines of the Woodlands Road Utility District, a 2,475-acre taxing body that is connected to The Woodlands by a coalition of developers, lawyers and well-to-do local insiders. The group included a retiree, a homemaker, a tile contractor, a salesman and an oil-equipment technician.
Heath and his friends claimed residency inside the district despite staying only two nights at the hotel. They did so to elect three of their colleagues in order to usurp the incumbent balance of power in the district. They believed the district was running up public debt and wanted to stop that.
Heath and his colleagues figured they were standing up for their rights, hoping to be part of a system that was imposing taxes indirectly on them in a commercial area in which they did much of their shopping and dining. And they were certain that their group was working within the very blurry lines of state law regarding residency and voting.
The law they followed says that the voter residency requirement can be determined "by the voter," as Randall Dillard, a spokesman for the Texas Secretary of State's office, stated in February 2010.
Dillard's statement was repeated like a mantra among Heath and his pals in the weeks leading up to the election. They succeeded in getting their own candidates in office by changing their voting registration residences in April 2010.
But as in a scene gone wrong in a caper movie, in June 2010, a district judge ruled the election and the group's part in it invalid and tossed the results.
That might have been the end of it, with a few malcontented wiseasses fruitlessly trying to prove a point.
Instead, as it turned out, the troublemakers had picked a very bad time to make their stand.
One of the first things Abbott did when he was elected attorney general in 2002 was to enhance the office's voter fraud division, saying that for too long, Texas had turned a blind eye to the white-collar crime. In the years since, his troops had focused on South Texas, admittedly a historic hotbed of election abuse, but the result was that while prison sentences were rare, they almost always involved minorities, Democrats and those in lower economic groups.
The Woodlands group was composed of white self-described conservatives, middle-class and above. How much better for Abbott, now running for governor, to prove that he was not biased. Heath became convinced that Abbott thought convicting the Woodlands voters would give his candidacy a boost. In fact, Heath says, that's what state Rep. Steve Toth, a Republican lawmaker from Montgomery County, essentially told him one day.
"Toth said words to the effect, 'I called up there (Abbott's office), and they said, 'We have 150 Democrats and six Republicans; we are not going to let the Republicans go,'" Heath said. (Toth told the Houston Press he didn't recall anyone from Abbott's office telling him that.)
So now the troublemakers, none of whom had ever faced a criminal charge, were being prosecuted by the state on the third-degree felony charge of illegal voting . The Attorney General's Office contends that they intentionally changed their addresses and claimed false residency for political gain, with no intention of living in a hotel. They all had homes elsewhere, some with mortgages, where they had their possessions and spouses.
"It seems strange that we could go to prison and no one would care," said Heath, a salesman by trade who came to the United States in 1983.
"We've been abandoned by the people who go out and say they want more transparent government that is responsible to the people. I thought people from both sides of the political aisle would see this corporatist government using the system to enrich themselves and see us as people who stood up to it."
Take exit 76B off Interstate 45 north of Houston and you find yourself smack in the midsection of the road utility district, shortened to RUD when anyone speaks of it. The Woodlands is a super-planned community with perfectly sculptured tree lines, finely measured curbs and an immaculately manicured canal. The place is also money.
Eight-lane highways are flanked by megacorporate interests, more chain eateries and stores than any capitalist could dream of slapping down in one place. Endless miles of streaming traffic whizzes by Starbucks, Target and Best Buy.
When he and his friends hatched their election plan, Heath said, he was unaware that interests associated with the Woodlands RUD sent political donations to influential people in Austin, people like state Sen. Tommy Williams, whose district includes the RUD, and Williams's ally Abbott.
Since 2002, Abbott has received $14,500 in campaign contributions from the law firm Schwartz, Page & Harding, which handles legal affairs for the RUD as well as for Woodlands Township and several other districts in The Woodlands.
Williams, who left office in December to take a job at Texas A&M, received $26,500 in political funding from Schwartz, Page & Harding since 2003. The same firm also has donated to the Greater Houston Builders Association PAC, which gave $6,154 to Williams between 2002 and 2012 and an additional $4,500 to Abbott.
The Woodlands Development Company, which helms the development of The Woodlands, is headquartered on the 11th floor of an office tower at 24 Waterway in the middle of The Woodlands, the same place the RUD had met for years until recently. The top floor of 24 Waterway also houses several other groups that are in the business of keeping The Woodlands upscale.
The RUD board passes development plans and issues bonds to pay for them. The development company is on hand to make the plans a reality, with the help of bond financing.
The cozy connections are enough to convince Heath and his band of would-be political change agents that the dogged pursuit of criminal charges against them is rooted in payback.
"It seemed that someone had to be made an example of, to send a message," said Tom Curry, an industrial technician who has had his own business for 22 years. Besides Curry and Heath, the other defendants are Sybil Doyle, Roberta Cook, Jim Jenkins, Pete Goeddertz, Robert and Ben Allison, and Bill Berntsen.
Another of the Residence Inn voters, Richard McDuffee, quickly settled with the state and testified before the county's grand jury. The Allisons followed his lead in taking a deal, leaving seven indictees, dubbed the Woodlands Seven.
"Greg Abbott was asked by Tommy Williams to do this," added Jim Doyle, who didn't participate in the voting maneuver, since he was an election judge in his precinct. To change his residency would have disqualified him from working the polls in his precinct, a duty he takes as seriously as he does his antiabortion stance. He spent 30 days in jail in 1989 for blocking a walkway leading to an abortion clinic's door.
Doyle, 71, retired in 2005 after 40 years as an aircraft mechanic for Continental Airlines. He had known several of the Woodlands Seven for ten years and believed that the group was on solid legal ground. Jenkins had asked Doyle to be part of it, but Doyle said he couldn't because doing so would make him ineligible as an election judge, so Doyle asked his wife, Sybil, and daughter, Roberta Cook, to be part of the plan.
In the fall of 2010, Doyle said, he ran into Williams at a Montgomery County Republican Party function. In response to a question about the election, according to an affidavit Doyle filed with the county, Williams "in a loud voice...said that he would influence Attorney General Greg Abbott to prosecute the Residence Inn voters to the fullest extent of the law."
Williams was sent a copy of the affidavit by email and asked to verify Doyle's account for this story. He did not respond.
Among the first motions made by the state in Heath's case was to prohibit him or his counsel from making any "allegations or assertions that the prosecution of this cause was pursued, pushed for, or pressured by political officials, including but not limited to Texas Attorney General Greg Abbott or Texas State Senator Tommy Williams." The state said such claims "are not provable, not valid..."
David Glickler, the second-chair prosecutor in the cases for the Attorney General's office, said the motion was a response to a subpoena issued to Williams by Heath's legal team. The motion was granted. Jurors never heard mention that any higher-ups had been moving for the prosecutions.
But Williams had pushed along for the prosecutions in any way he could, according to records.
In an email on September 15, 2010, Williams promised James Stilwell, who represented the three ousted RUD board members in their civil case to overturn the election, that he was on the case to pursue criminal charges against the Woodlands voters for what he termed voter fraud. That help included a call to Abbott's office.
"A few moments ago, I concluded a conference call with the attorney general's office on the voter fraud in the 23 June township election," Williams said in an email to Stilwell and Bruce Tough, a local lawyer and a Woodlands Township board member. Williams also offered the use of his legislative director, Jason Baxter, in "making sure this is handed off to the right person," according to the email.
On the same date, Stilwell emailed Williams advising him that he had sent a package of documents regarding the voter fraud allegations to the Texas Secretary of State. "Many thanks for all your help..." Stilwell signed off.
Stilwell did not respond to Houston Press emails seeking comment.
In an emailed response to a request for an interview with Abbott, Jerry Strickland, a spokesman for the Attorney General's Office, wrote, "In terms of punishment, these cases are either decided by a jury or by agreement. In [the Jenkins] case, a jury heard the facts and made their decision. The Office of the Attorney General acts on referrals from the Texas Secretary of State or county election officials. Those referrals are reviewed and investigated by our office and, ultimately, the facts of each case individually dictate the direction of our investigations. Those facts are ultimately turned over to a grand jury for an indictment or a no bill."
Abbott's crusade on voter fraud has taken on a different tone more recently as he fends off lawsuits from the U.S. Department of Justice and various special-interest groups seeking to undo voter ID, which he has championed and the state legislature approved in 2011.
As the front-runner for the GOP nomination for Texas governor, he's spending time around the state, giving talks and raising money. He's a pro-life, pro-gun rights, First Amendment guy, presenting himself as a representative of the common man.
Heath and his comrades, all devoted Republicans, voted for Abbott in each of his three AG campaigns. Some of them have gone to see him speak at various party functions. Abbott is a frequent guest in the county. He has received $131,601 in campaign donations from Spring, Texas (population 54,000), since he took office in 2002.
"And I'll vote for him again," said Jim Doyle, whose home sits on a double lot in Conroe adorned with political signs including the message "No New Taxes" and "America vs. Obama."
"I mean, I sure can't vote for a Democrat."
The 2010 road utility district election wasn't the first time Heath has poked the bear in The Woodlands. In 2006, Curry, Doyle, Heath and on that occasion Jenkins, as well as a few others, started filing nuisance complaints with the Texas Ethics Commission against sitting local officials, mostly relating to campaign finance reports.
"We got a lot of state reps on these and made a lot of them angry," Jenkins said, adding that since 2009, about half of the group's complaints have been upheld and the officials had to pay fines.
They were trouble for establishment figures like Williams, whom they heckled online mercilessly. In one case, Heath filed a complaint with the Travis County District Attorney's public integrity office over an open records issue. They also picked through Williams's campaign finance reports, finding errors that resulted in fines by the state's ethics commission totaling $950.
One evening in early March 2010, Heath was recreationally data-diving when he came across a taxing entity called the Woodlands Road Utility District No. 1. He emailed some of his confederates — Curry, Jenkins and Bill Berntsen — to tell them about this district that was racking up public debt.
The Woodlands Road Utility District was created in 1991 by state legislation. Known as a special district, it's allowed to levy a tax within its boundaries, where most of the property is commercial. The district has grown with The Woodlands itself over the years, amassing more property, levying more taxes and issuing $164 million in bonds. The district tax base includes such corporate citizens as Marriott, Hyatt, Benihana, Chevron Phillips, Baker Hughes and Anadarko Petroleum.
Critics of the road district, which winds through the area carefully to avoid putting residences inside its boundaries, contend that while those multibillion-dollar corporations may pay the taxes, the cost of commerce within the district is passed on to the consumer, and it's inescapable.
"I have to do business within the district," says Curry, one of the Woodlands Seven. "They add taxes to products because of the debt the RUD has put on the area. "
Heath dug in and learned the district was governed by five trustees who had been re-elected by default every year since 2000 — two one year, three the next — because the district believed there were no voters within its confines.
"I had an idea that maybe I could run for the board, and maybe some others, to see if we could be part of the process," Heath said. He phoned Mike Page, the lobbyist/lawyer who had been of counsel to the district since its inception.
"I'd like to run for one of the board spots at the RUD," Heath said. Page agreed that he could; the way the district was established, anyone from anywhere in Texas could be a candidate, with no residency requirement.
"But we have no voters in the district, and we haven't had an election since 2000," Page said.
That wasn't ringing quite true for Heath. He filed an open records request seeking more information on the district and quickly discovered 11 registered voters within the district. Two lived at the Residence Inn. One was registered at the Nexus Hospital. Two more were at businesses in a strip mall, and the rest were at various offices.
Heath went to Jenkins, Curry and several others with an idea. They could register as voters in the district, run for the three available spots on the RUD board and take over in a coup. "We would be these guys who came in and learned the system and made it work for everyone," Jenkins said.
Heath and nine others changed their voter registration addresses in April to 9333 Six Pines Drive, the Residence Inn. Several days later, McDuffee, Goeddertz and Berntsen, all among those changing their voter registration, filed as candidates in the May 8 board election.
Page was prepared for that early May day in 2010. As the lead counsel of the Woodlands Road Utility District, Page was known for his crisp attention to detail.
A native of Biloxi, Mississippi, Page had graduated from law school at Louisiana State University in 1971 and headed to Houston and a job at Vinson & Elkins. He became a partner in the firm, then left in 1983 to join Joseph Schwartz and Peter Harding to form Schwartz, Page & Harding.
All three lawyers were accomplished at representing special districts and land developers. Page took the legal reins of the Woodlands RUD from the start. Over the years, he has also come to represent just about any special taxing district in and around The Woodlands, including the township itself. The RUD, in particular, was a source of pride for Page.
Now, for the first time in the district's history, three incumbent board members of the Woodlands Road Utility District were being challenged. On May 6, Page sent an email to the board members advising them of what was happening. He was peeved about an article in the Conroe Courier about the newly registered Woodlands RUD voters.
"The Courier seems uninterested in this potential voter fraud, or in the benefits to the entire Woodlands community that the RUD has brought about over the last 20 years, courtesy of and at the sole expense of the business community in The Woodlands; instead, they are more interested in who complained to the DA and the fact that there has been only two or no voters in the RUD for almost ten years; they don't seem to understand or care that it is irrelevant how many voters there are if there are no opposition candidates; whether 0, 1 or 10,000 voters, if there are no opposition candidates, the election is called and then cancelled [sic] under the provisions of the Election Code in order to save taxpayer money---the voters are presumed as a matter of law to have voted for the unopposed candidates."
Two days later, the new guys won. Ten people voted for the challengers; two voted for the incumbents.
The ousted board members filed a flurry of actions to keep the new board members from taking over. They obtained a restraining order and sued the district to force nullification, and a June 2010 trial date was set in the 410th District County in Montgomery County.
A day after the election, the newly elected Pete Goeddertz, a construction contractor, was already planning changes.
"First, we need to get a grip on what exactly this board has been doing before us," Goeddertz told his fellow board members in a phone call. He planned a full review of the checks and balances and audits and anything else he could get his hands on. "I think we need to go through everything and have an independent audit done," Berntsen told Goeddertz and McDuffee.
But what they really wanted to do, ultimately, was to shut the RUD down. "We don't need another taxing entity," Goeddertz said. The others agreed.
Visiting District Judge P.K. Reiter ruled in a two-page opinion in June 2010 that the Woodlands Road Utility District election was invalid, handing power over the district back to the incumbents.
Williams and Stilwell began to push for criminal charges against the rogue Woodlands voters. Along the way, a curious website popped up.
Montgomeryvoterfrauds.com featured photos that were used as part of the civil suit along with comments asserting that Heath and company had committed voter fraud. The right side of the home page blared "guilty of voter fraud," while the other side read "see the documentation."
"In a closely choreographed scheme, each member of the group fraudulently changed their home address to a hotel within the RUD..." a narrative on the site described. Links on the site led to testimony from the civil trial, photos of the homes of the voters that were taken as evidence in the civil trial as well as copies of the changed voter registration cards of the accused. The Woodlands voters had not been charged, yet the message was convicting them of voter fraud.
The site was registered in January 2011 to the Radar Agency, one of several businesses run by Bryan Eppstein, a political strategist and lobbyist. Since 2002, Williams has paid out $1.1 million to Eppstein for consulting, advertising and website services. Also among clients for Eppstein's lobbying services in 2013 was the Woodlands Operating Company — another business sharing space on the 11th floor of 24 Waterway with the Woodlands Development Company. (Heath, Berntsen, Curry and Jenkins filed a libel suit in district court against Radar in March 2013. The case is pending. Eppstein did not return a call or an email from the Press.)
The Woodlands voter indictments came in March 2012. Three of the defendants accepted deals to avoid the action. McDuffee took his in exchange for testifying before a grand jury against the others. "I told the others, 'It's over, guys; take the offer and get out of it,'" McDuffee said. Two other defendants, Ben and Robert Allison, followed McDuffee's lead, although they were never called to testify.
The remaining members of the group refused to consider any deal in which they would admit guilt. "How can I plead guilty to something that I am not guilty of?" Heath said. "That would be lying."
Added Jenkins: "Getting a letter of a criminal indictment from the state Attorney General and facing ten years in prison can be terrifying, and some people can't stand up to that. But I'm optimistic enough to believe that someone can't go to prison if the law is properly heard."
There was another casualty amid the indictments: Joe Kulhavy, an attorney in the elections division of the Secretary of State's office, was fired in July 2013 after a candid conversation with Heath about the case made its way to the Internet and into the ears of Kulhavy's supervisors.
"Heath was a frequent caller; he's a very smart, engaging guy," Kulhavy said in an interview. "He wanted to know all about election law and how it worked. And he told me about his case, about how the state was prosecuting these people."
Kulhavy said his colleagues in the election division talked about the case on occasion as well. "It came up from time to time," Kulhavy said. "Another attorney at the office had received the complaint from the Woodlands Road Utility District and did a cursory review and passed it along to the AG's office, saying, 'Well, here's some stuff we got in the mail; we don't know if it's a crime, but we think it may be illegal voting.' But the thing that was driving our attitude at the election division was that we were upset at the road utility district for running a really crappy election. They didn't even bother to get a list of registered voters before the election."
In August 2012, Heath made another call to Kulhavy to get his views on the election and the judge's ruling in the civil case that threw out the election. This time, he had a tape recorder rolling.
"The decision was contrary to decades of court decisions about residency issues; it was really an outlier," Kulhavy told Heath on the recording. "The way I read it was the developer is mad because their nose has been tweaked by some people who are protesting the profoundly undemocratic way that property taxes are imposed in Texas. And their embarrassment is such and the fact that money is involved as such that they call up their best buddy, somebody who has close political ties to them, and say, 'Hey, Judge, we need you to make an example of these people.' Most prosecutors won't touch a residency dispute with a ten-foot pole because they know they're going to lose. "
Last summer, with trial scheduled to begin in October, Heath edited the hourlong conversation into a juicy 11-and-a-half minute diatribe and stuck it on YouTube. Kulhavy was fired within weeks.
He promptly hung out his own shingle as a private attorney and launched his own election-law blog.
As the indictments neared, Kulhavy said, the Woodlands Seven dispute "looked like a 'dog case,' and that's why it took three years to get to trial. Adrian had been telling me how this powerful political cabal had conspired to give them a hard time. And after I got fired, I thought, 'Maybe there is something to that.' "
David Glickler, one of the state's prosecutors handling the Woodlands cases, said the matter took time not because it was a "dog case" but because there were numerous motions and filings and because one of Heath's lawyers, Kelly Case, was elected to a judgeship during that period, which resulted in a delay.
"It took two years from the time of the election to indictment," Glickler said. He said he couldn't comment on the convictions the state has gotten so far. "We still have four more cases to resolve. Possibly by trial," Glickler said.
Jenkins, 63, is the owner of World Wide Microsystems, which builds computer chips for car-wash systems. A confessed workaholic, Jenkins isn't much for aesthetics in his workplace.
Inside, along with boxes of stock sit campaign signs for exclusively Republican interests — Romney/Ryan, state Rep. Rob Eisler. Name a GOP favorite, and it's likely there's a yard sign in the warehouse for him or her.
Jurors heard three days of testimony in the June trial of Jenkins. They came back within an hour with a guilty verdict. Jurors returned the next day, Friday, June 28, at 10 a.m. for the punishment phase. In his closing statement, prosecutor Jonathan White asked the jurors to give Jenkins probation.
"Violent offenders, we think about incapacitating them. We put them in prison. We put them away for as long as we can so that they can't hurt anybody. That they can't cause any more harm to society. In this case, what will keep Jim Jenkins from voting again? Being on probation for ten years would do a good job of that. If he goes to jail for two years or four years, after that time he is going to register to vote and he is going to vote again with every single one of you. He is going to enjoy his privilege to vote that he's so terribly abused."
With that, the jurors headed out of the courtroom and into a back room where so many fates have been decided. According to one of the jurors, there was considerable debate.
Three of them wanted to give Jenkins probation, meaning no jail time for the father of three. "Everyone else was vehement that he go to prison for this," said one juror, who asked not to be identified. "These people were dead set on sticking it to a Woodlands guy.
"It was clear this was some kind of political vendetta. In my heart, I felt these guys had ruffled the feathers of someone and, I don't know, these guys in this RUD had money and came back with a vengeance. But that never came across in the trial."
The jurors deliberated for an hour. The three holdouts caved quickly.
The jury's verdict: three years in prison and a fine of $10,000.
After being booked into the Montgomery County Jail, Jenkins, who holds a master's degree in engineering from Rice, bailed out and is now appealing his conviction.
Abbott tweeted out the penitentiary time given to Jenkins: "Another Voter Fraud Conviction leads to prison." He included the hashtag #TxGOP.
Heath's trial in October took a similar turn — he was found guilty — and, after watching Jenkins get sentenced to prison, Heath elected to have a judge decide his sentence.
That sentence is expected to come sometime this spring.
On November 14, , the state sent a letter to Sybil Doyle, 64, and her daughter, Roberta Cook, 37, whose trials are scheduled next. Among their options were to plead to the third-degree felony of illegal voting and receive 24 months of deferred adjudication and a $10,000 fine each, or to plead guilty to attempted illegal voting, a misdemeanor, and get 12 months of community supervision and a $4,000 fine each.
The December 2 deadline to take the deal came and went. No interest. Sybil Doyle is next on the trial list.
"I want my name defended. I can't plead guilty to this; I didn't do anything wrong," she said.
Also in line for the courtroom is Bill Berntsen, 62, who is suffering from cancer. Contacted for this article, Berntsen declined to speak. In an email, he explained, "I've been ill for the last few years with multiple myeloma, a blood disease that destroys bone. I have been taking chemo and will continue to do so for at least two more years, maybe longer."
If people like Sybil Doyle and Bill Berntsen are going to prison, it may be an accident, said Kulhavy, the ousted Secretary of State lawyer.
"The AG is accustomed to prosecuting people who throw elections because they have a relative they want to get into election and the stealing of ballots," Kulhavy said. "But with Adrian and his buddies, they refused to take any sort of plea bargain. [State prosecuting attorney] Jonathan White, he was not that interested in getting these people thrown in prison and was offering deferred adjudication. He was surprised the jury gave Jenkins three years. It becomes, now, an embarrassment for the attorney general." White declined to comment for this story, citing the ongoing prosecutions.
For Heath, his conviction for what he believed was an act that complied with the state's voter residency law — which no doubt needs fixing but was in effect all the same — is a psychological bludgeon.
"I'm a victim of the same interests that I had supported all of my life," Heath says. "And those interests — the state, the landowners, the politicians — don't seem to be willing to give an inch. We're all political prisoners of Greg Abbott."
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