DENIED | Evidence

By Josh Hinkle & Sarah Rafique

Why is a healthy, 21-year-old man dead? It’s a harrowing thought that hasn’t left Demeisha Burns’ mind since a Travis County Sheriff’s detective showed up at her front door more than a year ago.

“I’ve got to go the rest of my life not knowing what really happened to my kid, and I’m supposed to get over it?” Burns asked. “I’m supposed to move on?”

The detective said her son, Herman Titus, had a seizure and died in the county jail while in custody of the Travis County Sheriff’s Office. But Burns said Herman — and anyone else in her family, for that matter — had no history of seizures. This mother wanted answers.

Her efforts to do that were met with roadblocks from the sheriff’s and county attorney’s offices, who cited an obscure loophole to the Texas Public Information Act. It gives law enforcement agencies the discretion to withhold details in closed criminal cases that don’t end in a conviction or deferred adjudication — even when suspects die in their custody.

Now, an ongoing KXAN investigation reveals that loophole being broadly used to deny families, journalists and lawyers information that could bring accountability and closure to at least dozens of cases across the state — a discovery that’s also sparked renewed efforts at the State Capitol to change the law.

‘Hurting from the impact’

Herman Titus’ life was far from easy. His mother was just 14, single and struggling financially when he was born. Burns said they practically raised each other.

“No matter how much we went through, he was just always there,” she said. “He was always making me feel better and motivating me to work harder.

Titus dropped out of high school to help take care of his younger sister while Burns worked, she said. He always had plans go back to graduate, but trouble seemed to follow the young man. He and some friends were arrested for a burglary in the family’s apartment complex, and he also faced minor drug charges.

Then on May 23, 2017, Titus — out on probation and high on various drugs at the time — drove off a highway in east Austin. He told officers he fell asleep. The car plummeted 35 feet into a creek, paralyzing a woman in the passenger’s seat. Titus said he hit his head but somehow managed to escape the submerged vehicle, according to police and jail records.

Doctors released him from the hospital just a few hours after the wreck. Since his passenger was injured, he was charged with intoxication assault, a third-degree felony. Video from a camera inside an Austin police cruiser showed Titus moaning in pain as the officer snapped a seatbelt over his chest before transport to the Travis County Correctional Complex.

“He had a busted eye vessel, and his back and his shoulder and his legs was hurting from the impact,” Burns said about her visit to the jail. “I told him he needed to go to medical and make sure that that wasn’t something real severe.”

It was the last time Burns saw her son. He died June 19, just 27 days after arriving at the jail.

‘What really killed him’

The autopsy listed Titus’ cause of death as hypertensive cardiovascular disease. The county medical examiner noted “hardening of the walls inside of his heart” and said the 21-year-old had “heart disease due to high blood pressure.”

The Travis County Sheriff’s Office and the Texas Rangers both conducted investigations into Titus’ death and closed their cases, finding no misconduct or neglect. The state’s Commission on Jail Standards also said there was no violation of minimum jail standards. And, no one was disciplined after the incident because the sheriff’s office found no policy violations.

“It’s tragic, and my heart goes out to the folks who’ve lost a loved one,” said TCSO Major Wes Priddy, who was the jail administrator during Titus’ time there. “You know, I don’t know that there’s any action we could have taken that would’ve changed the outcome of this.”

Unsatisfied, Burns looked for an attorney to help her get more information. She found one out of state who specialized in federal civil rights claims, and he agreed to begin gathering evidence for her case — requesting every document, audio clip and video available from Titus’ final days.

It was clear from the beginning it would be a challenging process, as the county attorney’s office quickly released some information but not others. While Burns’ attorney waited for internal and investigative documents that could have indicated a civil rights violation, the county did send Titus’ medical records detailing his complaints to medical staff for weeks following the wreck.

A hospital discharge form indicated “blunt trauma” but no “injuries serious enough to require hospitalization” but recommended returning to the emergency department for “worsening pain or any other concerns.” The day after arriving at the jail, a form filled out during a medical visit notes Titus experienced “aching” pain and bruising in his rib area and “chest wall tenderness.”

Titus was prescribed Tylenol-Codeine and Ibuprofen. He was also ordered to sleep in the lower bunk of his cell for three days.

One week later, records indicate Titus was restrained to a chair for resisting or being combative toward jail staff. They said his behavior was angry and “aggressive towards officers.” During this time, records show he was not offered fluids, food or his medication.

Burns said when she spoke on the phone with her son a few days before he died, he told her he’d complained about his pain to officers so much they put him in “lockdown” for days. Nearly a week after staff documented his restraint, Titus filled out a Medline “sick call request” form, regarding his K.O.P. prescription, which was Ibuprofen. K.O.P. refers to “Keep On Person” medication inmates are allowed to keep and administer themselves.

“I had a K.O.P. pack when I came to lockdown,” he wrote. “They took them in 2B when they move me to 12G. They stop [giving] them to me,” he wrote. “I still had 15 pills in my pack.”

Staff noted on the form that his Ibuprofen prescription had already expired. Other records showed he wasn’t given any more Tylenol-Codeine since that prescription ran out days earlier.

“When the medications are taken away, the procedure that’s supposed to happen is that medical takes over that role and as they go make their rounds; they dispense that medication from that point on,” Priddy said during an interview with KXAN. “Medical would have to determine if he was taking medication beyond the point where he was supposed to be taking it and if that was the case, then they would discontinue, I’m sure.”

A handwritten log of the housing units where Titus stayed references both locations he mentioned on the form. Fifteen days pass from when he was restrained to when he re-entered general population, indicating an end to his lockdown two days before dying.

A nurse later told investigators Titus’ charts showed he was not seen by any medical staff since the day after arriving at the jail. The county provided no medical or prescription records for the last half of his time in lockdown.

“We still have medical staff that make the rounds even in the lockdown units, and they can still sign up for medical — Medline — for treatment,” Priddy explained. “So just because somebody’s in lockdown doesn’t mean they’re not afforded the opportunity to still address any kind of medical issues that they have, and we still treat them the same from a medical perspective like any other inmate in our care.”

On the day he died, Titus signed a medical refusal form at the jail clinic. A copy of the form shows his signature, though the reason he listed for his refusal is faded and illegible.

The portion of the refusal form that should be signed by both the medical provider and the inmate was left blank. Such signatures would acknowledge the inmate was not only refusing medical treatment against the provider’s advice but that there could be “possible risks for this behavior.”

Officers returned Titus to his cell where an investigator’s report indicates he had a seizure shortly after and collapsed.

“You have somebody who has passed in our care and custody, and that’s big deal to us. So, certainly, in retrospect, I wish we could have had him and say, ‘Hey, don’t sign this waiver,'” Priddy said. “But you don’t know that in most instances, and we can’t take that right away from them.”

Interestingly, Titus’ jail intake form mentioned he had history of a heart murmur, but a medical provider also noted a regular heart rhythm and no murmur found during his first clinic visit. His mother said the murmur hadn’t been a concern since he was a boy. She said he’d always played sports: football, basketball and track.

“He had to go through the full physicals, and he’s never had any heart problems,” Burns said. “I just want to know what really killed him, because it’s kind of hard to accept that my son just died from natural causes.”

So where was the rest of the evidence in her son’s case? Along with the medical records, Burns also received a disappointing email from her attorney.

“Travis County is apparently withholding some information and has requested a ruling from the Office of the Attorney General about whether they need to turn the information over or not,” the attorney wrote. “Having looked at the information we do have, and knowing that it may be a fight to get more information, our firm has decided that it would be best for you if you were to retain and hire Texas counsel to represent you.”

Burns’ attorney had dropped the case. Her efforts to find a Texas lawyer proved difficult, too. Money, time and sufficient evidence were all things she didn’t have. Moving beyond any civil rights case, her deadline to file a personal injury claim against the sheriff’s office was approaching, and Burns knew she might never have the proof to move forward in court.

“All I want right now is the truth, and I don’t care about no money,” Burns told KXAN. “If you’re not wrong, and you did everything by the book, then you have nothing to worry about, so why withhold the information?”

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‘Unintended consequences’

State Rep. Joe Moody, D-El Paso, wondered the same in the 2017 legislative session. The former prosecutor and current chair of the House Committee on Criminal Jurisprudence pushed a measure to close the loophole Travis County cited to keep some information back. His bill failed to pass, but he said our KXAN investigation is now giving it a second chance in the upcoming legislative session.

“We do a lot of things in [the Capitol] with the best intentions,” Moody said. “But how that works in the real world isn’t known until that law gets on the books and starts getting utilized. Are there unintended consequences?”

That loophole is actually an exception to the state’s Public Information Act put in place in 1997 generally to protect privacy. It only involves closed cases, not active investigations. It gives law enforcement agencies the discretion to withhold information in closed criminal cases that did not result in a conviction of deferred adjudication. For example, if someone is arrested and evidence is gathered, but the charges are eventually dropped, it might be in that person’s best interest to keep that evidence out of public view.

Moody said lawmakers never meant the law to apply to cases when suspects die in police custody. Someone who dies can never be convicted or cleared of a crime. After KXAN showed him our findings, he said it’s clear some agencies might be taking advantage of the loophole to avoid transparency.

“It does discredit to the vast majority of law enforcement that’s doing a good job and staying within the rules,” he said. “If we do our job to hold those few accountable that step outside the line, it is much better for law enforcement as a whole.”

Following its initial DENIED investigation in May, KXAN set out to discover the widespread use of this loophole, highlighted in the station’s reports of two Texas teenagers’ in-custody deaths:

• Mesquite police withheld records from the parents of Graham Dyer, 18, who died hours after being shocked with a taser repeatedly during a 2013 arrest.
• Austin police withheld records from the media after Zachary Anam, 19, shot and killed himself in the back of a police cruiser in 2017.

KXAN focused on the state’s 21 largest law enforcement agencies, which account for more than a quarter of the 4,200 in-custody deaths since the loophole went into effect two decades ago. We submitted public information requests for other individuals’ past open records requests related to deaths within those agencies.

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We found most agencies — including the Texas Attorney General’s Office — do not track the types of requests they receive or the legal citations they use to withhold information from requestors. It was necessary to search through each request individually to determine if it met the criteria, then build our own database of findings for the investigation.

The six-month analysis revealed at least 154 public information requests related to 52 in-custody deaths denied under that loophole. The results are likely far greater but impossible to know, because agencies can legally destroy such record requests after just two years. Also, these are just 21 out of 2,696 law enforcement agencies across the state.

“This data is something members of the legislature didn’t have going into the last session, so now we can get our arms around how much this is being used,” Moody said. “It’s invaluable for someone like me presenting a bill now for the second time with evidence. It is one of our priority bills for the session.”

Just last week, Moody filed similar legislation ahead of the next session in January. He told KXAN he hopes to not only eliminate the loophole but also require better retention and tracking policies for open records requests to make sure it’s easier to scrutinize the process when problems arise.

“We have to demand more of ourselves and our systems,” he added.

A ‘criminal’ investigation

When asked about its decision to use that loophole to withhold information in Herman Titus’ case, the Travis County Sheriff’s Office told KXAN it is simply complying with the Texas Public Information Act.

“Whenever there is a question regarding whether or not it is appropriate to release certain information, our office works with the Travis County Attorney’s Office to seek a letter ruling from the Office of the Attorney General,” spokesperson Kristen Dark sent in an email.

When asking the attorney general to weigh in regarding Burns’ lawyer’s request, the county attorney’s office said that all documents related to Titus’ death were part of an investigation conducted by the sheriff’s Major Crimes Unit. The county argued that investigation did not “result in a final conviction or deferred adjudication” and may be withheld under that legal exemption.

In previous rulings, the attorney general’s office has said that exemption is “generally not applicable to the records of an internal affairs investigation that is purely administrative in nature and does not involve the investigation or prosecution of a crime.”

But, the county insisted the sheriff’s investigation into the death was not “simply administrative” but instead related to a “criminal” investigation of the incident. Dark confirmed to KXAN no jail staff member was indicted — meaning charges were never filed against anyone. So how could the county use that argument?

The attorney general agreed the county could indeed withhold evidence related to that “criminal” investigation, except for basic information — which consisted of a single page with very few details. It only indicates there is a case on file with the Major Crimes Unit regarding Titus’ death.

Beyond that investigation, the attorney general also ruled the remaining information was related to internal affairs matters and should be released. This included the sheriff’s internal affairs report, the inmate death report and the record associated with the AED monitor hooked up to Titus during life-saving efforts, which would indicate his heart rhythm and determine if a shock was needed.

By the time records show Burns’ attorney received notification that information was finally available in mid-January, he had long since dropped the case. Burns said the attorney also never reached out to let her know the county had been ordered to release those internal records.

Regardless, the ruling was a month too late for Burns to file a personal injury lawsuit in Texas. If the claim being made is against a government entity, there is a six-month deadline to file following the date the incident occurred.

“As much as we may want to release and get [information] out there, sometimes that’s not advisable from a legal standpoint,” Priddy said. “And so we have to rely on the county attorney’s office to guide us through that.”

The county attorney’s office did not respond to multiple requests from KXAN for comment.

‘They didn’t do their job’

During our investigation and following that attorney general ruling, the sheriff’s office released the internal documents Burns said she never received. We also obtained records from the Texas Commission on Jail Standards and the Texas Rangers, including audio and video detailing the events that occurred on the day Titus died.

In an audio interview with a Texas Rangers investigator, one of Titus’ cellmates said, “Basically, all [Titus] talked about was his mom and his sisters. He was 21 years old, just talking about getting out and starting his life over.”

Most of the recordings with other inmates and jail staff focus on Titus complaining of extreme pain in his final hours.

“He went and laid down and had himself covered up and he was moaning and groaning and asking for Ibuprofen,” one inmate said. “He goes, ‘My fingertips are numb, and I feel like I’m going to faint.’ Those were his words.”

An internal affairs report noted an inmate saying Titus had “so much pain, he wanted to cry.” The report goes on to detail Titus calling for a doctor, being placed in a wheelchair, handcuffed and taken to medical, all seen on surveillance video.

Interviews with multiple officers, nurses and other medical staff confirm they were not only aware of Titus’ concerns but also had knowledge he’d been in a major car wreck just weeks before. They describe Titus’ impatient state, as he waited to see a doctor.

He was “verbally abusive toward the nurses,” the Texas Rangers report noted. He was “banging on the glass” of the waiting room, according to the internal affairs report.

“He just complained … said his back and his neck hurt,” one officer said in an interview, acknowledging the incident was called in as a “medical emergency” when Titus was brought to the clinic. Soon, Titus signed a medical refusal form and was taken back to his cell.

In recordings, officers suggested Titus was tired of waiting — also noted in his custodial death report — and didn’t want to pay for the “emergency visit.” The jail’s medical care price sheet says emergency assessments cost $10.

“An inmate is never denied access to medical care based on his/her ability to pay,” Dark said. “If an inmate is determined to have a medical condition that is deemed to be an emergency and he/she refuses care, EMS will be activated and the inmate will be taken to the hospital.”

Priddy said such an action is “typically speaking to an individual who’s incapacitated,” but he did not explain how someone who’s “incapacitated” could even be able to sign a form.

When the Texas Rangers investigator asked if jail staff neglected Titus, his cellmate replied on the audio recording, “As far as I’m concerned, they didn’t do their job.”

“I mean, he came back from medical,” the man said. “Wasn’t a half hour later, and he was dead.”

‘Get this man to the hospital’

Following jail staff’s response, one video shows crews with Austin-Travis County EMS and the Austin Fire Department working to revive Titus for nearly 24 minutes. At one point, they stopped CPR and called for a time of death. Two minutes later, they realized he still had a pulse, and they resumed CPR. Multiple records note the AED monitor never advised crews to shock the inmate.

They eventually loaded him onto a stretcher and brought him through the jail to an ambulance, at which point the video ends. He was declared dead shortly after in a hospital emergency room.

After KXAN showed the video to ATCEMS and AFD, the agencies sent a joint statement saying their system’s Office of the Medical Director has launched a clinical investigation into the case.

“What the video clearly illustrates are the professional men and women of ATCEMS and AFD working very hard to resuscitate Mr. Titus on one of the most physically and emotionally challenging call types we respond to on a daily basis,” the agency wrote. Read the full statement.

Whenever the office is alerted to a concern with a medical issue involving the agencies and their staff, a clinical investigation is conducted. Because that investigation is active, the agencies would not speak to the details in Titus’ case but said this process is not “indicative or suggestive of any believed or perceived wrong-doing.”

The investigation should be complete within a month, according to Medical Director Mark Escott. He said it involves interviews with ATCEMS and AFD personnel involved in the incident and reviewing the video and Titus’ medical records.

“Having information like this from the scene is helpful for quality improvement and identifying any issues,” Escott told KXAN. “We look for opportunities for individual development and any need for system changes.”

Escott explained the only portion of the investigation that would be made public would be any potential policy changes. He said results can also warrant discipline, at which point the case would be reviewed to the system’s Office of Professional Conduct.

“I was not aware of the video, but it’s not typical that we have an incident like this,” he said, adding that clinical investigations happen on a “regular basis” for the 130,000 calls the system makes each year.

Escott said, after learning of this incident, it’s “worth looking into” body cameras to be worn by EMS crews during cardiac arrest cases, though he had no timeframe for that to happen. He noted there would likely be challenges with the cost, storage and retention of such footage but pointed to other agencies in the nation already utilizing such cameras successfully.

Regarding the two-minute lapse on the video when CPR was stopped, Escott said his office would also be checking into technology to better determine when a life-saving effort should end.

“Field ultrasounds would indicate when the heart has actually stopped,” he explained. “It’s what they use in hospitals, so you don’t have to rely solely on other means like checking for a pulse to interpret time of death.”

The sheriff’s office acknowledged jail staff maintained life-saving measures on Titus until ATCEMS and AFD arrived on scene. However, the sheriff’s corrections bureau issued a “corrective recommendation,” in an Emergency Response Report, saying “Admin Control should call 911 when requested.”

When asked by investigators about the staff’s response to the emergency, one of Titus’ cellmates replied, “I just thought, you know, you just need to get this man to the hospital. Why isn’t he going to the hospital?”

‘Jail officer’s safety’

Just minutes before the start of a planned interview with Travis County Sheriff Sally Hernandez, we were informed the sheriff would not be speaking with KXAN. Dark offered Priddy instead, claiming the sheriff’s schedule “didn’t permit” her to speak with us.

Dark and another public information officer also set up a video camera prior to the interview, stating the agency wanted its own record to ensure it would be “portrayed accurately.” When asked, Dark indicated recording future interviews would not be standard and she could not recall recording any past interviews at the time.

More than a year since Titus’ death, the sheriff’s office has yet to release all of the information in his case, namely details from the sheriff’s Major Crimes Unit investigation. This month, the county attorney’s office also requested an attorney general ruling regarding KXAN’s request for jail staff shift rosters and post-log entries, which would reveal the officers’ locations and actions surrounding Titus’ death, including their visual checks on inmates.

“This information could conceivably be used in preparing for an escape or other criminal activity, and would reveal the layout or potential weaknesses in the jail’s security system,” the county attorney’s office wrote. “Release of this information to the public would jeopardize the jail officers’ safety and undermine law enforcement personnel’s ability to perform their duties.”

‘Struck by another inmate’

With the evidence that has recently surfaced, Burns said she is exploring other legal options. One piece of video collected as part of the Texas Rangers investigation stands out.

Several interviews referenced a basketball game Titus played in jail the day before he died, some mentioning Titus saying he was “sore.” Other records also suggest a fight with another inmate.

In the autopsy report, the medical examiner says: “[Titus] had a medical history of having been possibly struck by another inmate in the face while in the recreational yard. After this incident, [Titus] began to complain of arm and back pain, numbness of the hands and generalized weakness.”

The camera that captured the alleged incident is very far from the scene, and the images are too grainy to make out many details. The Texas Rangers report also notes Titus had no bruises or signs of physical harm.

The county also released Titus’ jail file to KXAN, which provides more details about his treatment and behavior in the days leading up to his death – especially his time in lockdown.

A week after entering jail, records show Titus was restrained to a chair with handcuffs, leg-irons and a spit mask for being “physically resistive” and able to injure himself. In a summary of the incident leading up to the restraint, officers wrote that Titus sat on the floor during “unit moves” of 16 inmates to another building and refused to get up.

“I ordered Inmate Titus to get up one more time and Inmate Titus continued to tell me, ‘No, I’m not getting up and go ahead and call the other officers,'” one officer said. “Inmate Titus was also inciting other inmates in the waiting line.”

Another officer added: “When the S&E (search and escort) officers got into the unit, you immediately got up and became resistive towards the officers. Due to your actions, the unit moves had to be delayed in order to secure you to… the holding cell.”

Once inside the cell, records say Titus became “more disruptive and started to kick the door continuously,” “charging it with his shoulder.”

Records say officers “gave Titus the direction to lay face down to which he complied. He was then placed in the restraint chair “without incident.”

“The inmate never made any complaints of any kind other than cursing at officers,” one officer wrote.

Burns recalled Titus later explaining on the phone he was simply “trying to tell the officer that I’m in a lot of pain.”

“He said, ‘Well, mama, my body started hurting, and so I told the officer I’m sitting down because I’m hurting,'” Burns said. “He said the officer came and got belligerent with him, and the next thing you know they had him in lockdown.”

A disciplinary board gave Titus 15 days in lockdown, until two days before his death. He faced four major violations, and he lost phone, commissary, television and visitation privileges as a result. No witnesses came before the board on Titus’ behalf.

“He was like, ‘Mom, I’m not a bad person. I’m just always in the wrong place at the wrong time,'” Burns said. “I just feel like… you’re not listening, you know. He said he was in pain.”

The incident leading up to the restraint was captured on video, though the sheriff’s office has yet to release the footage to KXAN.

But, Burns still believes there’s more to the story. Could her son’s death have been avoided, and what can be done to prevent others?

“People in jail, they have families that love them,” she said. “It’s just a person that has made some bad choices in life that has to face those consequences.”