Dateline Texas

In 1996, a Hays County jury found Robert Cox guilty of theft of a 1941 John Deere Model H tractor and, on the District Attorney’s recommendation, sentenced him to 75 years in the penitentiary. Five years later, he is still serving time. Recently, the Observer learned of Mr. Cox’s predicament from Austin attorney Rob Owen, who is handling his appeal in federal court, and we became curious as to why so many years of a man’s life had been exacted in the matter of a non-working piece of farm equipment. How could this have happened? The fraught workings of Texas prosecutions are not always easily comprehended, but at a minimum, the case of the missing John Deere offers a handy road map to long-term incarceration:

1. Find an elderly widow to accuse you of stealing something of sentimental value to her. Back in July of 1994, Robert Cox was a 40-year-old scrap dealer, rock layer, and odd jobs man–a jack-of-all-trades, according to his wife–and Gertrude Klunkert was an 84-year-old widow who wanted a carport built at her house in rural Hays County. Cox, who’d known Klunkert since he was a young boy, offered to build her the carport, and Klunkert agreed to pay him $1,900, some of which she advanced to him to buy materials.

On Klunkert’s property, out in back of the house, was an old green and yellow tractor. Intact (except for a missing radiator cap, clutch cover, and one throttle spring) but nonfunctioning, it had last been used in 1988 or ’89, when it had been enlisted for hayride duty at family reunions. Cox spied the tractor and asked whether Klunkert might offer it to him as part of his payment for the carport.

What exactly Klunkert told him when Cox asked for the tractor is a matter of dispute. Cox says she agreed to sell it for $150, to be deducted from the carport payment, but at trial she claimed she had done no such thing. The tractor had originally belonged to her cousin, who had deeded her the ranch, she explained; the two had been close, and the tractor “was a personal thing to me,” Klunkert said.

On July 18, while Klunkert was at a doctor’s appointment, Cox and his sister’s husband, Vincent Catron, hauled the tractor away. The next day, when Cox showed up to work on the carport, he confirmed to Klunkert that he’d taken it, and she asked him to bring it back. “We were going to take it back to her,” Cox’s wife Penny said in an interview. “My brother-in-law [Catron] was going to take it back.”

Instead, Klunkert filed charges, Catron informed a sheriff’s deputy that the missing tractor could be found at Cox’s house, and the tractor was returned via wrecker service, on Klunkert’s dime. Cox was arrested in 1995.

2.Make sure to have a checkered past. Cox had proved himself to be something of a ne’er-do-well during the 1980s, when he’d been convicted of six thefts, one criminal mischief charge, one charge of impersonating a public servant, and one assault. Because he had been convicted of a felony at least twice before, he would be eligible, by dint of the habitual offender provision in the Texas criminal code, for an enhanced punishment of 25 to life, were he to be convicted of a felony this time around. (While much media attention has been paid to the effects of the three-strikes provision in California and the similar federal provision–which in particular have resulted in protracted prison terms for nonviolent drug offenders–Texas has long had a habitual-offender statute that allows the prosecutor to seek an enhanced sentence. Until the 1970s, in fact, a third felony was automatically given a life sentence.)

3.Go up against a tough Texas prosecutor. Enter Hays County Assistant District Attorney Michael Wenk, who two years later would be elected District Attorney–after a campaign in which he boasted of the long sentences he’d obtained in the past, as is common practice in DA races around the state. In that same race, one of the Democratic candidates, a former state judge named Norman Lanford, claimed that the office routinely threw extraneous charges at defendants so as to get longer sentences. “I think it’s almost a statewide problem,” says Lanford, who has since moved his criminal law practice to the town of Cameron. “Nobody [among prosecutors] looks at a crime and says, ‘What is this?’ They look at the code book and think, ‘What is the most we can get?'”

The most the DA could get, in the case of Mr. Cox and the (perhaps) purloined farm vehicle, would hinge on the value of the vehicle. Theft of under $750 was then a misdemeanor, punishable by only 90 days to one year in prison, yet theft of between $750 and $20,000 was a second-degree felony, punishable by 25 years to life in the case of a person with at least two prior felony convictions. The key to Attorney Wenk’s strategy was, then, to prove that the old tractor was in fact a prized antique. Wenk contacted Paul Schlender, an auto glass dealer in Seguin and a tractor aficionado, who testified at trial that he would estimate the value of the machine in question to fall in the $800 to $1,000 range. On cross-examination, though, he allowed that Wenk had told him ahead of time what the prosecution was hoping the tractor would be worth–something over $750.

4.Bring on the sentencing phase. To make a long trial short, the jury found Cox guilty of felony theft–though only after having been stalled for several hours over the issue of whether it might actually have been misdemeanor theft. Then the real trial began. Texas criminal proceedings are commonly divided into two parts: the guilt-innocence phase and–if a defendant has been found guilty and requested that the jury impose the sentence–the sentencing phase. While the first phase treats the crime at hand, the second purports to examine the character of the defendant, and this can easily turn into a field day for the aggressive prosecutor. “Sentencing hearings are extremely wide open, in order to accommodate the state’s desire to inflate sentences,” says Austin defense attorney Keith Hampton, who represented Cox in an unsuccessful state court appeal. “They throw in anything and see what sticks.”

A lot was thrown at Mr. Cox. There were his prior convictions, of course, and then there were new accusations, levelled by witnesses Wenk had summoned. The first witness was Sheree Robertson, a used-car saleswoman who had retained Cox to repossess cars and who claimed that Cox had taken cars and money from her. Then there was James Busby, a former high school coach who speculated in goats; he’d hired Cox to buy and sell goats at auctions in Fredericksburg and Junction, and he claimed Cox had taken a trailer from him.

Following these excursions into the margins of the marginal economy, Cox tried to testify on his own behalf–a mistake, since on cross-examination, Wenk was able to revisit all his prior convictions. Finally, Wenk delivered an extended oration on the subject of Cox’s criminal nature, calling him “the poster child for all habitual criminals.”

“We have a right to be angry, a right to be outraged at what this defendant has done,” Wenk’s speech continued. “How low, how low of a human being do you have to be to victimize a trusting 86-year-old woman?

“…If you send out a verdict of a lower-range sentence in this case [i.e., 25 to 50 years], the message you’re sending is, ‘You’re absolutely right, Mr. Cox, you are absolutely right for not being deterred by our criminal judicial system….

“I will tell you a sentence of 99 or life is justified under the evidence of this case. If for any reason you have any hesitancy in that sentence, I’m asking that you not consider any sentence less than 75. I’m not asking for a 75-year sentence, I’m asking for the appropriate sentence of life or 99. But for the sake of all the victims in his past don’t consider any sentence under 75.”

So the jury sentenced Cox to 75 years. One juror contacted by the Observer said that he and the other jurors had concluded that Cox was a liar, that he had ripped off an old lady and that he had tried to pin it on his ailing brother-in-law, and that he was a bad influence on his three young children. “It seemed like maybe the kids would have a better life without the parental influence,” the juror said. “This guy’s way of making a living was ripping people off.” As for the length of the sentence, they had gone with the prosecutor’s recommendation, said the juror, who added that given the nature of parole, Cox’s actual time in prison would be much less than 75 years.

Contacted by the Observer, Wenk elected to send his comments for this story via fax. “I make NO apologies for the fact that Robert Dale Cox is serving a 75-year sentence for his conviction for felony theft in Cause # CR-96-348,” Wenk wrote. “Robert Dale Cox is a predator… a thief… a habitual criminal. Robert Dale Cox VICTIMIZES ‘innocent’ citizens.”

The arrangement with Klunkert, it doesn’t even seem like a theft,” Hampton says. “They were bringing the damn thing back.”

In appealing the case, Hampton, and now Owen, have tried to revisit the issue of the tractor’s value, and have called upon a a total of six experts whose general opinion it is that–as Hampton tells it–”This is John Deere Model H? 1941? Aw hell no, that thing wouldn’t be worth more than $700.” Members of such organizations as the Tractor and Gas Engine Club of Temple and the Texas Early Days Tractor and Gas Engines Association, they all judged the tractor to be worth between $150 and $300.

Meanwhile, since having been elected District Attorney, Wenk has nearly doubled the number of new cases being introduced in Hays County. (There were 936 new cases added in fiscal year 2000, as opposed to 528 in 1997.) He made headlines in 1999 when, in the wake of the Columbine school shootings, he threatened to prosecute four 14-year-olds as adults if they didn’t plead guilty in juvenile court to plotting to attack their high school. In another case Hampton has defended, Wenk brought charges against an older couple for hindering apprehension, because they’d paid for a hotel room for their son, who was wanted on theft charges.

Replying to faxed questions from the Observer, Wenk did not comment on specific cases. “During the course of my 20 years of public service as a State’s Attorney, I have been charged with the ‘duty and responsibility’ of protecting law-abiding citizens from those predatory criminals who prey on innocent citizens of my community,” he wrote.

“We have traditionally not tried people or punished people for being criminals in general,” notes Lanford. “But now with all that extraneous foolishness… it makes for good politics.”

Penny is trying to raise her three children on welfare. “I’m having a real hard time,” she says. As for her husband, “I don’t feel he was done right. He done his bad times back when he was a kid and got in trouble for it before. He’s as fit to be in society as I am or anyone else for that matter.”