‘People v. 2011 BMW 535-I’

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McLennan County Sheriff Parnell McNamara

Story by The Legendary Jim Parks, Reporting by R.S. Gates

Waco, Texas – When emergency medical technicians responded to a fashionable Bosqueville address only a few doors from the Sheriff’s ancestral home, they found a) a woman dead from a drug overdose in the bathtub, b) a full syringe next to an empty one on the bathroom vanity, c) an emaciated addict playing his guitar in the living room of the sprawling Austin stone mansion,  and d) a late-model imported luxury car parked on the premises valued at about $60,000 new.

When they returned three days later to serve a warrant of search and arrest, they found a Professional Ordnance 223 cal.  AR-15 rifle in the trunk of the car, the magazine loaded with cartridges.

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The eyes of David Sirbasku

A magistrate charged David Sirbasku with possession of a controlled substance. A Grand Jury later indicted him for the offense and alleged in a second count that he “did there and then intentionally and knowingly take a controlled substance into the McLennan County Jail.” Arrest records show that Sirbasku, who is well over six feet tall, weighed 160 pounds when booked into jail.

Cause No. 2013-344-3 is only unusual because most people are unaware of, or unfamiliar with a provision of the Texas Code of Criminal Procedure which allows prosecutors to litigate cases styled in the name of the People of the State of Texas v.  a specified amount of cash, a piece of property personal or real, a motor vehicle, jewelry, loose diamonds, jewels, or pearls, and then seize it as contraband pending a case for asset forfeiture ancillary to a criminal offense.

It happens every day, a completely ordinary occurrence.

Federal agents stationed at international airports often rely on scanners that are able to detect the amount of cash in a person’s pockets or purse with near exactitude. Dogs are trained to detect the odor of drugs on cash.

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State of Texas v. 2011 BMW 535-I

Filed in 74th District Court as a civil case, the petition alleges that Sirbasku used the car to deliver methamphetamine and heroin to customers as a criminal enterprise. When officers quizzed him, he admitted that he sometimes allowed visitors to drive the car to the dope house to pick up more drugs, according to the information filed in the magistrate’s court.

There is no official mention of what the intended use of the .223 carbine may have been.

The criminal case has been pending at this writing for more than 500 days. A jury trial is scheduled for later in the spring following multiple continuance motions granted by the judge in Criminal District Court. The Civil District Judge has issued a final order in the forfeiture case not against Sirbasku, but against his vehicle – the 2011 BMW. Sirbasku filed an answer to the suit, but did not replevy the seizure by posting a bond; when he did not appear on the date of the hearing, the judge issued a default judgment.

Nowhere in the official record is there any documentation of an inventory of the vehicle thus seized.

There is a report of eight firearms taken out of the Sheriff’s Office evidence locker; on July 1, 2014, Deputy Michael Gates alleges the rifle is “evidence,” that it was taken from the trunk of the beamer.

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Click image for a list of seized firearms recently taken out of evidence storage at its original size

The report, which was generated on January 6, 2015, says that there are also two .22 cal. revolvers; a .22 cal. Beretta semiautomatic pistol; the .223 carbine seized from Sirbasku; a Remington Model 870 shotgun; a Glock Model 22 .40 cal. semiautomatic pistol; a Ruger .357 revolver; and a Sig Sauer P239 semiautomatic .357 cal. pistol, all of which the Sheriff’s men have similarly disposed, for one reason or the other.

Reached for comment, Sheriff McNamara said he is unaware of the matter. He said that weapons are taken out of the evidence vault, sometimes reconditioned or updated by the manufacturer, and issued to officers for their use on the job. What is there to talk about, he implied in an extensive audio interview he encouraged The Legendary not to publish. “It’s not newsworthy,” he said. Besides, it badly affects the morale of officers who are putting bad actors behind bars, risking their lives doing the job.

A check of the seizure statute, Art. 59.02(d) of the Texas Code of Criminal Procedure states, “…the owner or interest holder’s rights remain in effect during the pendency of proceedings under this chapter as if possession of the property had remained with the owner or interest holder.”

The criminal case against David Sirbasku, who on a day in 2013 allowed a homeless woman who visited him at his home to bathe in his tub after injecting herself with a lethal dose of drugs, is still pending.

To read a post filed on January 16, 2013 regarding the arrest of Sirbasku at his home, follow this link:

http://downdirtyword.blogspot.com/2013/01/there-is-in-mclennan-county-texas.html

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