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The Contrarian

Texas’ highest criminal court on Wednesday overturned the arson conviction of Ed Graf who’s served nearly 25 years of a life sentence for a crime he likely didn’t commit.

In a two-page opinion, the Texas Court of Criminal Appeals ruled that the arson evidence used to convict Graf of burning to death his two stepsons in a Waco suburb in August 1986 was flawed. “This false testimony violated [Graf’s] due process rights,” the judges wrote. But while they threw out the original conviction, the judges stopped short of declaring Graf actually innocent. That means he will be sent to the McLennan County jail in late April to wait for county prosecutors to decide if they will seek a new trial or set Graf free. The McLennan County DA’s office released a statement on Wednesday saying it’s still examining the case.

If prosecutors pursue a new trial, they will have to win a conviction without the use of much evidence of arson. Three nationally known fire scientists have examined the Graf case and found no evidence of arson. The prosecutors’ own expert who recently looked at the case also found no indicators of arson.  At a January hearing, fire scientist Doug Carpenter delivered devastating testimony that the fire and toxicology evidence disproved the prosecution’s theory of how Graf set the fire.

Graf was convicted of drugging his 8- and 9-year-old stepsons, dragging them into a shed behind his house in Hewitt, pouring gasoline on the floor, locking the door and setting the shed on fire. The forensic evidence for this scenario has fallen apart. Autopsies found no drugs in the boys’ bodies; there’s no evidence gasoline was poured on the floor, arson experts say the door to the shed must have been open or the fire would have died from lack of oxygen. The other evidence that investigators once thought were indicators of arson has been disproved in the two decades since the fire. As Carpenter testified in January, the high levels of carbon monoxide in the boys’ blood point to an accidental fire, not one intentionally set with gasoline.

The Observer wrote the first in-depth investigation of the Graf case in May 2009, part of a four-part series on flawed arson cases. (Read our original story on Graf’s case here.)

The Graf case is the first Texas arson conviction overturned since the controversy over the execution of Cameron Todd Willingham, put to death in 2004 on similarly flawed arson evidence. The Graf case is also being examined by a panel of fire experts reviewing Texas arson cases in partnership with the Texas Innocence Project. The panel will meet in early April when it’s expected to make recommendations on the Graf case. That may help sway prosecutors’ decision on whether to launch a new trial. They can take as long as they want to make a decision. It could still take months or years to win his release.

So while Wednesday’s ruling was undoubtedly welcome news for Graf and the many other Texans still in prison on faulty arson convictions, his attorney remains cautious.

“It’s good news,” said Walter Reaves, who’s been worked to free Graf for more than five years, “but there’s still a long way to go.”

All of us at The Texas Observer were deeply saddened to learn of the passing of our friend, supporter and benefactor Mary Margaret Farabee from cancer on Sunday morning.

Like so many organizations and nonprofits in Austin, the Observer benefited greatly from Mary Margaret’s generosity, warmth and energy. Married to former state Sen. Ray Farabee, she was a tireless believer in, and supporter of, the kind of truth-telling journalism that’s been the Observer’s trademark for nearly 60 years. Mary Margaret served on the board of the Texas Democracy Foundation, the nonprofit that publishes the Observer. She was instrumental in creating the MOLLY National Journalism Prize in 2006 to honor journalism in the tradition of the late great Molly Ivins. Proceeds from the award and its annual dinner benefit the Observer. Mary Margaret organized the wildly successful MOLLY dinners—along with Texas Democracy Foundation board Chair Susan Longley—that have featured keynote speeches by noted journalists such as Paul Krugman, Gail Collins and Seymour Hersh.

The Observer was just one of the causes Mary Margaret supported. She co-founded the Texas Book Festival, and, as the Austin American-Statesman noted in its obituary, devoted herself to supporting a long list of Austin organizations, including the Paramount Theater, KLRU, the Ann Richards School for Young Women, the Ransom Center, the Junior League, Friends of the Governor’s Mansion and many, many more.

Mary Margaret was also a great friend. Her visits to the Observer office always brightened our day—whether it was words of encouragement, a little gift to let us know she was thinking of us or just her smiling face coming through the door. Her warmth and generosity of spirit were infectious. We will miss her dearly.

A memorial service for Mary Margaret will be held on March 18 at 10:30 a.m. at the Lady Bird Johnson Wildflower Center.

We will be honoring Mary Margaret more in the coming days. But for now, our feelings on this sad day were summed up best by the marquee outside the Paramount Theater on Congress Avenue that read, “Mary Margaret Farabee: One of Austin’s greatest. We love & will miss you.”

Click here to support The Texas Observer in honor of Mary Margaret.

The School-to-Prison Pipeline

After the horrific shooting at Sandy Hook elementary school in Newtown, Connecticut, the safety of schoolchildren has become a much-discussed topic everywhere, and Texas is no exception. Texas lawmakers’ ideas for protecting kids at school range from the sensible (restricting military-style assault weapons) to the colossally stupid (arming teachers and other school employees). Lt. Gov. David Dewhurst has even suggested the state pay for teachers to take handgun training courses. That’s ironic, given the massive cuts to public education that the Republican-dominated Texas Legislature—Dewhurst included—enacted in 2011 and seems so reluctant to undo. Who knew that the trick to getting schools more state money was teachers taking up arms?

The gun-control debate, at least in Texas, is largely cosmetic. Texas school districts, if they choose to, can already allow teachers to carry guns in the classroom. And hell will freeze over before the Legislature enacts more regulations on firearms, even assault weapons—any new restrictions will have to come from the federal government. The more likely outcome—and the one that concerns us the most—is Texas bulking up its already sizeable number of school cops.

Most Texas schools are patrolled by armed police officers. While they do provide a measure of protection from, say, a mentally ill person armed with an AR-15, the officers principally concern themselves with criminalizing student behavior. In recent years, Texas school cops have doled out alarming numbers of tickets and criminal charges for minor misbehavior such as cursing, disruption of class and, in the case of one 12-year-old in Austin, spraying perfume on herself. Incidents that in years past would land a student in detention or earn a suspension are now resulting in Class C misdemeanor tickets or arrests that send kids to the juvenile justice system.

In 2010, Texas school cops handed out 300,000 Class C misdemeanor tickets to children as young as 6, according to the advocacy group Texas Appleseed. Several recent studies have confirmed that students sent to alternative education programs or the juvenile justice system have an increased chance of dropping out and ending up in prison. Texas Appleseed calls it the “school-to-prison pipeline,” and it’s become a major problem.

Texas has made an industry of criminalizing schoolchildren. While we too fear for the safety of schools, more police officers isn’t the answer. More cops in schools might increase security a bit—but the likely result would be more Texas kids headed to prison.

Ed Graf in 1988. Ed Graf in 1988.
Photo courtesy The Waco Tribune-Herald
Ed Graf in 1988.

A state district judge in Waco on Thursday recommended a new trial for Ed Graf, who has spent nearly 25 years in prison on an arson conviction that forensic experts now say was based on junk science.

Retired Judge George Allen recommended throwing out Graf’s conviction and convening a new trial after a brief hearing this morning to review the well-documented flaws in the forensic evidence. The case now goes before the Texas Court of Criminal Appeals.

Graf was convicted in 1988 of allegedly starting the fire that killed his 8- and 9-year-old stepsons in the shed behind the family’s home in a Waco suburb. Graf always claimed he was innocent, and the physical evidence seems to confirm that he’s served a quarter century in prison for an arson that never happened.

Thursday’s hearing, held in a first-floor courtroom in the McLennan County courthouse annex, lasted barely five minutes. Graf’s lawyer Walter Reaves and Assistant District Attorney Alex Bell agreed that the physical evidence used to convict Graf in 1988 was flawed. “Were the case tried today, there is no scientific evidence…of arson,” said Reaves, an innocence attorney who’s been working to exonerate Graf for more than five years. (Graf was one of three flawed arson cases the Observer investigated in 2009. Read our original 2009 story on Graf’s conviction here. You can read other stories in our four-part series on debunked arson evidence here.)

Bell wouldn’t concede Graf’s innocence. The prosecutor pointed to the circumstantial evidence that made Graf appear guilty: He took out life insurance policies on the boys just two months before their deaths; he insisted the boys keep the tags on their new clothes and then returned them for a refund after the fire; he hadn’t bought them more cereal like he usually did. (The circumstantial evidence is the reason that Clare Bradburn, Graf’s ex-wife and the mother of the boys, remains convinced of his guilt, as she told the Waco Herald-Tribune last week.)  But Bell agreed the forensic evidence in the case was problematic and that justice demanded a new trial. “We agree a new trial is appropriate in this instance because of the scientific evidence,” the prosecutor told the court.

Three nationally known fire scientists have reviewed the evidence and found no signs of arson. At a hearing on Jan. 11, fire scientist Doug Carpenter eviscerated the physical evidence against Graf, arguing that fire investigators at the time had misread burn patterns and mistaken an accidental fire for an intentionally set one. Carpenter also testified that the carbon monoxide levels in the boys’ blood proves that the fire wasn’t started with gasoline, as the prosecution claimed in 1988. (Gasoline fires don’t produce the high levels of carbon monoxide found in the boys’ blood. Read our dispatch from the Jan.11 hearing here.) If there was no intentionally set fire, then Graf is, by definition, innocent.

Allen wouldn’t go that far, refusing to recommend a finding of actual innocence, as Reaves had hoped, though a recommendation for a new trial is a significant victory.

Still, Graf, who wasn’t present at Thursday’s hearing, has a long way to go before he might be released from prison. The Texas Court of Criminal Appeals—the state’s highest criminal court—will consider Allen’s recommendation and issue a final ruling in the case. Reaves said he was hopeful the Court of Criminal Appeals would free Graf or at the very least grant him a new trial. It seems unlikely there would be another trial. Given the troubling forensic evidence, prosecutors probably couldn’t win another conviction, so if the Court of Criminal Appeals mandates a new trial, then Graf would likely go free. But the Court of Criminal Appeals could take months or years to issue a ruling.

Reaves said he hopes that when the Court of Criminal Appeals does address Graf’s case, it issues a written opinion that would help Texans wrongly convicted of arson win new trials.

Graf’s is the first flawed arson case to go before the Court of Criminal Appeals since the Cameron Todd Willingham controversy. (Willingham was convicted on similarly flawed arson evidence and executed in 2004.) Since the uproar over the blatant mistakes made in the Willingham case, Texas authorities have begun a thorough review of arson convictions in the state. Perhaps dozens of wrongly convicted Texans remain in prison on arson convictions based on evidence that has since been debunked.

“This is the first case that’s made it up through the system,” Reaves said. “It’s very significant.”

On Thursday morning in a Waco courtroom, a state judge may recommend a new trial for Ed Graf, who has served nearly 25 years of a life sentence for an arson he claims he didn’t commit.

Graf was convicted in 1988 for allegedly starting the fire that killed his two stepsons. The evidence of arson in the case is now widely seen by forensic experts as junk science. I reported on the Graf case in detail in 2009 as part of a series investigating flawed arson cases (read the Observer’s original story here). Three nationally known fire scientists have examined the evidence in the case and concluded the fire at Graf’s house was accidental.

On Jan. 11, fire scientist Doug Carpenter testified at a hearing reexamining the case. Carpenter eviscerated the physical evidence that convicted Graf and offered compelling testimony that the fire was accidental. (You can read the Observer’s full account of the hearing here.) Alex Bell, the McLennan County assistant district attorney assigned to cross-examine Carpenter, struggled to poke any holes in the testimony. In fact, prosecutors aren’t disputing that much of the original arson evidence in the case is problematic.

As one expert told me back in 1999, the arson evidence in the Graf case is as bad, if not worse, than the flawed evidence in the infamous Cameron Todd Willingham case.

Graf’s attorney, Walter Reaves, said he’s optimistic that Judge George Allen will recommend a new trial for Graf at Thursday morning’s hearing.  That recommendation would then go before the Texas Court of Criminal Appeals, which would decide Graf’s fate.

At least a half dozen arson cases, including Graf’s, are being reexamined by the Innocence Project of Texas and Texas Fire Marshal’s office. They will give an update on their arson review project to the Texas Forensic Science Commission on Friday.

You can read the Observer’s four-part series on flawed arson convictions, including our examination of the Graf case, here.

And just like that, Texas is flush with cash again.

Comptroller Susan Combs unveiled her biannual revenue estimate for state government this morning. The revenue estimate isn’t just some abstract forecast; it determines how much money state lawmakers can spend in the two-year budget they will construct over the next five months.

Combs estimates that Texas will have more than $92,6 billion available in 2014 and 2015. Add to that $8.8 billion left in the bank from the last two-year budget. In all, lawmakers will have more than $101 billion to spend on the rest of 2013 and 2014-2015. Then there’s the Rainy Day Fund, which has grown to $11.7 billion. Texas is rolling in cash.

That’s good because the budget, as it stands now, is a mess. In the strictest sense, Texas’ 2012-2013 budget does “balance,” as the state constitution requires. But to make the numbers add up, lawmakers resorted to absurd gimmicks. In 2011, the Legislature faced a $27 billion shortfall—it was pretty dour day two years ago when Combs announced how little money Texas had. The 2011 shortfall was due mostly to the recession—though at least $10 billion of that was of lawmakers’ own doing (more on that in a moment). Gov. Rick Perry refused to let budget writers use the nearly Rainy Day Fund to offset cuts to education and health care. The result was a $5.36 billion cut to public schools—a reduction almost inconceivable, until it actually happened. Texas’ schools are funded so poorly, nearly every school district is suing the state to fix the situation.

On Medicaid, lawmakers couldn’t afford to pay for the program without crippling cuts. So instead of writing a 24-month Medicaid budget, they simply axed the final six months and went with an 18-month Medicaid budget. Presto! Problem solved. Until March 2013, that is, when the state is on the hook for those Medicaid payments. So unless the world ends before March, the 2013 Legislature will have to come up with $4.7 billion in Medicaid funds fewer than 60 days into the session to keep the program going.

That looked like a serious problem…until Combs’ announcement this morning. Improving sales tax receipts and the booming energy sector have resulted in the extra $8.8 billion in state coffers. That will easily cover the $4.7 billion in Medicaid IOUs. In 2011, the Lege gambled that the economy would improve enough to pay for the Medicaid IOUs, and that gamble has apparently paid off. Lawmakers will still need to act quickly to pass the mother of all supplemental spending bills in the first two months of the session, but at least the money is there.

When they write the budget for the next two years—2014 and 2015—lawmakers will again have to contend with a $10 billion structural deficit. That’s the result of the 2006 business tax that legislators knew at the time wouldn’t bring in enough money to cover the state’s obligations. This will be the fourth session in a row that budget writers start their work with the state $10 billion in the red.

Meanwhile, years of lean state budgets have increasingly burdened local governments, and they’re borrowing money at alarming rates. The comptroller recently reported that Texas leads the nation in debt carried by municipal governments. That’s not balancing the budget, that’s deficit spending by another name.

A growing economy has blessed Texas with ample resources for this legislative session. Now might be a good time to undo the deepest cuts from 2011, to finally close the structural deficit and to take some burden off local governments. Lawmakers will have the money—if they choose to spend it.

Koch Comes After the Observer

Koch Industries site calls our story 'dishonest' and 'distorted'.

Our recent cover story on refinery pollution in Corpus Christi apparently touched a nerve over at Koch Industries.

Kochworld” profiles the fenceline communities bordering the Koch and Citgo-owned refineries in Corpus. Melissa del Bosque and Jen Reel spent months interviewing sick residents living in the shadow of refineries spewing large amounts of known carcinogens such as benzene and 1,3-butadiene.

Koch’s response? Attack the messenger.

The company—owned by billionaire brothers Charles and David Koch, famous for contributing hundreds of millions to conservative causes, including climate change denial—has posted a lengthy response to our story at kochfacts.com headlined “Confronting Dishonest and Distorted Advocacy Journalism by a Soros-Funded Publication.”

Strangely, though Koch’s response employs the words “dishonest,” “distorted,” “misleading” and “flawed,” I couldn’t find a single challenge to any of the reported facts in our story.

Instead, the Koch folks devote five paragraphs to attacking Melissa del Bosque’s reporting techniques and the Observer’s integrity. Reminds me of the old lawyer strategy: When you don’t have a case to make, attack the other side.

Koch officials’ main complaint is that Melissa misled them about the intent of her story. It’s an unfounded assertion. Melissa was pretty frank with Koch officials that she was working on a story about the impact of refinery pollution on the neighborhoods near their facility and asked for the company’s response to specific resident complaints. She also asked the company to detail its positive impacts on the community. We then quoted the Koch responses fairly and accurately at three different points in the story. But you can judge for yourself: Koch has posted large parts of Melissa’s email exchanges with company spokesperson Katie Stavinoha at kochfacts.com.

Koch officials seem most perturbed that we didn’t include information about health studies they sent us. According to the company spokesperson, “Numerous independent health studies have not indicated causation.”

Notice the careful wording there. They don’t claim that these studies have vindicated Koch’s refinery or shown that emissions have no impact on human health. Rather, it’s “have not indicated causation.”

And that’s true. The studies the company cites—a federal investigation and an ongoing TCEQ study—document the amount of carcinogens released into the community and also discuss health problems in the area, including alleged frequent birth defects, but make no statement on whether the pollution has caused these health problems. Causation, as we write in our story, is very difficult to establish, and there’s no definitive link between Koch Industry’s emissions and the health problems of its neighbors. However, other public health studies, including this one from Houston, have shown that people living near refineries are more likely to endure serious health problems, including elevated rates of leukemia—studies that bolster the anecdotal evidence offered by residents.

As for Koch’s other accusations, well, we do receive some funding from the Open Society Foundations of George Soros fame (though we don’t have any Open Society Fellows on staff, as Koch officials allege; no idea where they got that one). While we do lean left, the Observer certainly isn’t partisan or ideological, as any number of Texas Democrats burned by our reporting can tell you. And we don’t engage in “advocacy” journalism. Our story isn’t advocating for anything; we simply produced a thoroughly reported account—so thoroughly, in fact, that even Koch can’t seem to find factual errors in it—about the lives of people living near the refineries. But don’t take my word for it. Go read the story yourself, if you haven’t already.

Meanwhile, Koch has spread its attack to media sites like Poynter’s Media Wire, using Melissa’s headshot in web ads promoting its aggressive response to our reporting. This isn’t unusual. Koch has used similar tactics to go after other media outlets, including the New Yorker and Bloomberg, for reporting on the Koch brothers’ political activities. So we’re in good company.

 

Behind the Headlines: The Lubbock County Judge, Obama and the U.N.

The jail fiasco behind Tom Head's now-infamous remarks.

“He’s going to try to hand over the sovereignty of the United States to the U.N., and what is going to happen when that happens? I’m thinking the worst. Civil unrest, civil disobedience, civil war, maybe. And we’re not just talking a few riots here and demonstrations, we’re talking Lexington, Concord, take up arms and get rid of the guy.

“Now what’s going to happen if we do that, if the public decides to do that? He’s going to send in U.N. troops. I don’t want ‘em in Lubbock County. OK, so I’m going to stand in front of their armored personnel carrier and say ‘you’re not coming in here.’”

—Tom Head, Lubbock county judge, in an August 21 interview with Fox 34 on why the county needs extra public safety measures if Obama is reelected.

 

When I first heard the comments made by Tom Head, the suddenly infamous Lubbock County judge, on the local Fox affiliate, my first thought was of Woody Allen’s line in Annie Hall, after Duane, played by Christopher Walken, explains his fantasies of swerving his car into oncoming traffic.

“All right. Well, I have to go now, Duane, because I’m due back on the planet Earth.”

Just when Missouri had swiped the title for state with the wildest-sounding politician—thanks to Senate candidate Todd Akin and his “legitimate rape” comment—Texas seizes it right back. And we’ll probably hold the title for quite some time. This one looks like a keeper.

Tom Head’s venture into an alternate reality—in which an American president abdicates to the United Nations, citizens rise up in revolt and the United Nations invades anyplace, let alone West Texas—is the looniest damn thing I’ve ever heard a Texas elected official say. The competition is fierce, mind you, but I think Head’s comments barely beat out Debbie Riddle’s “anchor babies” interview. It certainly makes Rick Perry’s secession remark seem plausible by comparison.

http://www.youtube.com/watch?v=vfZL2zACM-4

(By the way, the best part of that video of Head’s remarks is the interviewer who’s awkwardly stuck there nodding like a bobble-head doll and answering Head’s fantasies with “rights” and “uh-huhs” and even one “true.”)

But, as always in politics, there’s a story behind the story. In this case, the backstory may help explain what Head was up to—well, maybe not explain it, but at least provide some context. I’ll add the disclaimer that I have no idea why Head said what he did. I don’t know whether it was a political ploy or whether he actually believes it. I have no insight into what Tom Head actually thinks, and that’s probably a good thing.

But if you look at the backstory, it seems the reelection that should most concern Tom Head isn’t Obama’s, but his own.

Head’s remark was meant to justify a tax increase. Lubbock County commissioners are considering a hike in the property tax to pay for seven new positions and new equipment for the county sheriff’s department, and salary raises for the DA’s staff. It’s your basic tax-and-spend plan.

The extra officers are needed to ensure public safety in Lubbock—at least that’s how county commissioners have been trying to justify the tax hike at a time when every other Republican in America is trying to cut taxes. Head’s comments were just another variation of this, taken to another level.

The sheriff’s department has asked for funding increases in recent years. The reason it needs more money? Mismanagement by Head and other county officials. (For all you out-of-staters: In Texas, the “county judge” is actually an elected administrator, who along with the other county commissioners, oversees county government.)

In 2011, Lubbock County opened a massive, 1,500-bed $100 million county jail. The county didn’t need a jail nearly that big, but Head and other officials hoped to lease out jail space to the federal government or other outside entities that needed to stash prisoners somewhere.

This is a racket that many communities in Texas have tried with diminishing returns. (The criminal justice blog Grits for Breakfast has excellent coverage of the issue here and here.) Lubbock County missed the boom in immigrant detention, and now the big expensive jail sits only 70-percent full, according to the Lubbock Avalanche-Journal.

Meanwhile the staffing costs of operating the massive jail are draining sheriff’s department resources, which has led to call response times going up and some cases going uninvestigated.

As the Avalanche-Journal reported last year, “The almost $100 million county jail dominated county budgets even before voters approved $82 million for its construction in 2002. Call times have languished and cases gone without investigation as spending on the roughly 1,500-inmate facility crowded out new deputies and other officers for the growing county.”

The county instituted property tax increases to help pay for the jail, but it’s still been a disaster that’s straining county resources.

All that eventually comes back to Tom Head, who’s been county judge since 1999.

So let’s recap. Under Head, we have multiple tax increases to compensate for a bloated government project that isn’t functioning as planned. That kind of record could earn Head a Republican primary opponent in a conservative place like Lubbock. He’s up for reelection in 2014.

I don’t know if Head plans to run for office again. But given that he’s pitching another tax increase to make up for the county jail boondoggle, you can begin to understand why he wanted to change the subject and make the tax-increase debate more about Obama’s U.N. invasion or whatever other unlikely catastrophe he could dream up that needed more county law enforcement.

Either way—whether he actually believes what he said or was trying to distract voters from a tax increase caused by the jail fiasco—Head will have a lot to answer for.

The False Narrative of Ted Cruz’s Win

Former solicitor general was simply the better candidate.

By the end, David Dewhurst seemed utterly confounded that he was losing so decisively to a political novice like Ted Cruz.

“You could argue that there’s not that much difference between the two of us, other than I’ve done all the things Mr. Cruz says he wants to do,” Dewhurst told reporters five days before the U.S. Senate runoff, when it was becoming clear that Cruz was the likely winner.

He made a similar comment last night during his concession speech. “This is not the way I envisioned this evening would start,” he told supporters, “especially in light of my conservative record and all the things we’ve accomplished.”

And all that is true. There isn’t much ideological difference between Dewhurst and Cruz. Not really. Cruz did run to Dewhurst’s right by spewing more outlandish statements than the sitting lieutenant governor was willing to, but if you go point-by-point on actual policy, the areas of disagreement are few.

I wrote last night that Cruz’s victory would probably be portrayed as a great tea party win, a victory against the Republican establishment—and sure enough, that’s how the national media is playing it today. But I don’t buy it. I don’t see any larger political trends behind Cruz’s win.

Abby Rapoport—our former colleague—has a terrific piece on the American Prospect site debunking the national media’s conventional wisdom. Cruz’s win, she writes, had more to do with internal Texas politics and rivalries than the false tea party vs. the establishment meme many pundits are peddling. (Ted Cruz, the Harvard-educated corporate attorney, may be many things, but anti-establishment he ain’t).

I would add an even more basic, fundamental reason for Cruz’s victory.

He was simply the better candidate.

I’ve been watching David Dewhurst since 2003 and often wondered to myself how a man this stiff, halting and uncharismatic had risen so high in Texas politics. Whether he’s giving a prepared speech or simply answering questions in a press gaggle, Dewhurst speaks with all the assurance of a 6th grader trying to master Hamlet. His words are usually bereft of passion, and when he tries to sound passionate, it seems forced. Even his unscripted remarks have the cobblestone cadence of a man reading from prepared text, and he punctuates his sentences with a tight smile that, rather than connecting with the audience, seeks approval from it.

Dewhurst seemed aware of this failing. In his concession speech last night, he thanked his staff for “trying to make me a better speaker—tough job.” No kidding.

Dewhurst’s inability to connect with voters came off as insincerity. And that proved a defining flaw in the eyes of tea party voters constantly guarding against insincere politicians and so-called RINOs seeking their support.

Ted Cruz was charismatic. Ted Cruz sounded sincere. Ted Cruz was the better salesman. That’s not to say Cruz doesn’t believe what he says. Maybe he does, maybe he doesn’t. It’s tough to judge a politician with no record. We do know how Dewhurst has acted, and he has a very conservative record: He’s slashed state spending, passed voter ID, passed the sonogram law, and passed a constitutional ban on gay marriage.

But that didn’t matter. How you present yourself and how you come across to voters often matters more in campaigns than the records or the details of policy. Image is paramount. So it was in this runoff.

Dewhurst won his previous elections by beating hapless Texas Democrats in a Republican state; his closest race a 5-point victory over John Sharp in 2002. But in this campaign, Dewhurst’s toughest yet, his political flaws were exposed.

He began the race last year with more money and more name recognition. But Dewhurst squandered those advantages, and when the money and name ID evened out—as in most races—the more disciplined, more charismatic, more (at least seemingly) genuine candidate won. Simple as that.

The Nine Lives of Ciro Rodriguez

Democrat tries another comeback in closely watched congressional race

It’s run-off day in Texas, and the Republican race for U.S. Senate between Ted Cruz and David Dewhurst is getting all the headlines in Texas. But there’s another federal race today that could have a greater impact on the balance of power in Washington.

Many state and national Democrats are closely watching the Democratic runoff in Congressional District 23 between the unsinkable Ciro Rodriguez and the party favorite, state Rep. Pete Gallego. The winner will take on vulnerable GOP incumbent Quico Canseco of San Antonio. Democrats would very much like to win back the district, which stretches from San Antonio into West Texas—a victory that could be essential if they want to recapture the U.S. House.

Much of the party establishment is apparently rooting for Gallego because the state rep from Alpine has raised more money, and many observers think he has a better chance of defeating Canseco in the fall.

But few politicians are as pesky and dogged as Rodriguez. Ciro has represented San Antonio in Congress for two separate stints, and twice lost his seat. He was first defeated in 2004 in a Democratic primary by Henry Cuellar. He lost again to Cuellar in a primary rematch. But he earned a reprieve later that year when federal courts redrew the congressional districts. Ciro filed against, and later defeated, Henry Bonilla in CD 23. That was remarkable comeback No. 1.

In 2010, Rodriguez was unseated yet again by Canseco in an upset win for the Republican. After that kind of loss—Ciro’s third defeat in six years—most politicians would have called it a career.

But Rodriguez doesn’t quit. He surprised some Democrats by finishing ahead of Gallego in the May 29 primary. Despite being outspent and not being the party’s preferred candidate, Rodriguez received 46 percent to Gallego’s 41 percent (another candidate finished a distant third).

Rodriguez benefits from a loyal, motivated base in San Antonio. He pummeled Gallego in Bexar County on primary night, winning 56 percent of the vote—double Gallego’s total. In fact, nearly a fifth of all Rodriguez’s votes came from Bexar County.

While he’s popular in West Texas, Gallego will have to perform better in San Antonio if he’s going to win the runoff tonight. Gaining the endorsement of popular San Antonio Mayor Julian Castro certainly helped, and Gallego had the money to build support in the San Antonio market. He had raised and spent more than $844,000, according to the latest federal filings on July11, nearly three times Rodriguez’s total (Gallego’s biggest donors were beer distributors and trial lawyers).

But Rodriguez has been outspent in previous races and still won. “He confounds some Democrats with how he’s able to do this without spending or raising a lot,” said Jessica Taylor, with the D.C.-based Rothenberg Political Report, told the Dallas Morning News. Ciro also picked up his own big-name endorsement on Tuesday when Bill Clinton announced his last-minute support.

This seat will likely be Texas’ most competitive congressional election this fall. Tonight we’ll find out if the Democratic challenger in November will be many Democrats’ preferred choice or if Rodriguez will continue another improbably comeback.