BAYOU VISTA — A judge on Friday denied a motion for a new trial in which the defense accused prosecutors of withholding evidence favorable to a man sentenced to 25 years in prison for exchanging gunfire with a police officer.

The motion for a new trial for Rodney Scott Smith 46 came after his defense attorney Jon A. Jaworski argued the district attorney’s office should have revealed before trial that officer T.J. Krietemeyer was under investigation by state authorities.

Smith was accused of exchanging gunfire with Krietemeyer on July 24 in the 800 block of Bonita in Bayou Vista. A jury convicted Smith on April 3 and sentenced him to 25 years in prison.

In January Galveston County Criminal District Attorney Jack Roady learned Krietemeyer was the subject of an investigation by the Texas Department of Public Safety.

The department sought to charge Krietemeyer then a reserve Bayou Vista officer accusing him of improperly working side jobs in violation of the state’s Occupation Code.

Roady testified Friday he didn’t make the connection between the DPS investigation of Krietemeyer and the fact that Krietemeyer was testifying against Smith until after Smith was convicted. Roady made the connection after having a conversation with Bayou Vista police Chief Paul Odin.

Roady then told Jaworski of the DPS investigation under an abundance of caution so Jaworski could pursue the matter. That led Jaworski to ask 56th District Court Judge Lonnie Cox for a new trial on a number of grounds saying among other things that the material regarding the investigation was required to be disclosed before trial.

”They’re trying to pooh-pooh this case when in fact it had sat on (Roady’s) desk 412 months and he did nothing to pursue it” Jaworski told Cox. ”They still haven’t done anything on it ... It ruins my client’s right to a fair trial. It’s unfair unjust to let it sit there all this time allowing Smith to go to trial knowing there’s evidence to impeach the officer’s credibility.”

Roady said his office wasn’t hiding anything noting if that were the case he never would have told Jaworski about the investigation.

”We’re going to do the right thing” Roady said. ”Even if we get some criticism for it.”

Roady’s office is investigating whether Krietemeyer committed perjury when he signed an affidavit saying he didn’t know of the DPS investigation until after Smith’s trial. Krietemeyer on Friday however testified he had heard a rumor in November from a Texas City police officer who informed him of an investigation.

The investigation of Krietemeyer who hasn’t been charged is part of other investigations by Roady’s office into the Bayou Vista police department. Those investigations predate the April 2 hiring of Bayou Vista police Chief Paul Odin Roady said. Roady declined to discuss particulars of the investigations.

Roady initially filed paperwork with the court opposing Jaworski’s motion for a new trial for Smith but earlier this week Roady reversed that position. However Friday the state reversed its position again and told Cox it opposed a new trial.

Roady and prosecutor Jon Hall said the decisions changed after looking further at the matter.

Cox said the matter deserved a hearing to determine whether the state violated disclosure laws. In denying a new trial for Smith Cox said the investigation into Krietemeyer hadn’t resulted in a felony charge or an act of moral turpitude and because of that the DPS investigation couldn’t have been used to impeach Krietemeyer’s credibility at trial.

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