Nearly 2 Years After Houston Drug Warriors Killed Rhogena Nicholas, Her Family May Get a Chance To Find Out What Happened
Despite the city's stubborn resistance, a judge will finally consider the family's request to depose police supervisors.
Nearly two years after Houston narcotics officers invaded the home of Dennis Tuttle and Rhogena Nicholas based on a fraudulent search warrant and shot them both dead, we still don't have a clear picture of what happened that day. Houston Police Chief Art Acevedo, despite his pose as an avatar of transparency and accountability, has not told us, and the city has been vigorously resisting Nicholas' relatives as they try to find out why she died.
This week, Harris County Probate Court Judge Jerry Simoneaux dealt a blow to the city's stonewalling by scheduling a hearing at which he will consider a request by Nicholas' mother and brother to depose the supervisors who were in charge of the Houston Police Department's Narcotics Division at the time of the January 2019 raid. The city unsuccessfully urged a state appeals court to intervene, then unsuccessfully asked the Texas Supreme Court to overturn that decision.
"They basically claimed that the court which handles wrongful death cases didn't have jurisdiction to consider a wrongful death investigation case," Michael Doyle, an attorney representing the Nicholas family, told the Houston Press. "That's why the Court of Appeals kicked it out very quickly, because that's kind of silly."
Here is what we do know about the deadly raid at 7815 Harding Street, based on public statements and court documents:
• The investigation of Tuttle and Nicholas began with a false tip from a neighbor who described them as dangerous drug dealers.
• Veteran Houston narcotics officer Gerald Goines conducted an investigation so cursory that he did not even know the names of his targets. In the affidavit supporting his application for a no-knock search warrant, he described Tuttle as "a white male, whose name is unknown."
• Goines, who has been charged with murder, document tampering, and federal civil rights violations, lied in his warrant application, describing an imaginary heroin purchase by a nonexistent confidential informant.
• Tuttle and Nicholas had no criminal records, and the search discovered no evidence of drug dealing.
• Fellow narcotics officer Steven Bryant, who also faces state and federal charges, backed up Goines' phony story.
• Harris County District Attorney Kim Ogg—whose office has charged Goines, Bryant, and four other officers, including three supervisors, with a litany of felonies—says the fraud that killed Tuttle and Nicholas reflects "a pattern and practice of lying and deceit" within the Narcotics Division, where cops commonly built cases on fabrications that were either overlooked or abetted by supervisors. "Goines and others could never have preyed on our community the way they did without the participation of their supervisors," Ogg said in July. "Every check and balance in place to stop this type of behavior was circumvented."
• Acevedo, who was featured at this summer's Democratic National Convention as a reform-minded police chief, does not think his department has a "systemic" problem.
After investigating the circumstances that led to the Harding Street raid, Ogg's office is looking into the way the warrant was served. Nicholas' family also wants answers. Here are some of the unresolved questions:
Why was the raid approved?
Supervisors apparently did not notice or did not care that Goines, who had a history of questionable testimony and affidavits, was unable to name the people he supposedly had been investigating for two weeks, who had lived in the house for decades. Nor did supervisors make even a rudimentary effort to verify that the confidential informant who supposedly had bought heroin from Tuttle actually existed. Instead, investigators scrambled after the raid to identify the informant as Goines named one person after another before finally confessing that he had made the whole thing up.
"The identity of CI's providing specific information about criminal activities…is required to be documented and readily accessible to police managers," says a petition that Doyle filed in July 2019. "HPD's managers knew from the beginning that there was no documented CI significant meeting record in its files supporting the assault on the Harding Street Home." Oversight practices that "allow officers such as Gerald Goines to simply make up CI's, or fabricate criminal activity used to justify warrants, would violate the Fourth Amendment," the petition adds.
Did Tuttle and Nicholas realize that the armed men breaking into their home were police officers?
There is no body camera video of the raid. But according to Acevedo, the cops announced themselves at the same moment they broke in the door, then immediately used a shotgun to kill the couple's dog. He said Tuttle responded by shooting at the officers with a .357 Magnum revolver. The cops returned fire, killing Tuttle, who was struck at least eight times, and Nicholas, who was hit twice.
The raid began around 5 p.m. According to Doyle, Tuttle and Nicholas were taking "an afternoon nap" at the time. While narcotics officers executing search warrants "don't show up in uniform," Acevedo said, "they do show up with plenty of gear that identifies them as police officers, including patrol officers that are out in front of the house." But patrol officers outside the house do not give people inside the house notice that the men breaching their door and killing their dog are cops, and it's not clear what other "gear" Acevedo had in mind.
Furthermore, Houston had recently seen a series of home invasions by robbers masquerading as cops. In these circumstances, it is plausible that Tuttle thought he was defending his home against dangerous criminals. Reckless drug war tactics invite that sort of confusion, which has had deadly consequences in cities across the country.
Why was Nicholas killed?
The cops claimed they shot Nicholas because she was moving toward an injured officer, who had collapsed on a couch, and they thought she was about to grab his shotgun. But an independent forensic examination of the house commissioned by Nicholas' family and overseen by former Naval Criminal Investigative Service agent Michael Maloney concluded that Nicholas had been fatally shot by someone standing outside the house who would not have been able to see her.
Based on that investigation, the Nicholas family's lawyers also questioned whether Tuttle had actually fired at the officers as they entered the house. "We see no evidence that anybody inside the house was firing toward the door," attorney Chuck Bourque told the Houston Chronicle four months after the raid.
Were officers injured by friendly fire?
Four officers, including Goines, were struck by bullets during the raid. Whose bullets? While Acevedo indignantly rejected the suggestion that the cops were injured by anyone other than Tuttle, he presented no evidence to back up that position, and the Houston Police Department has refused to comment on the question. It has not even said how many rounds the cops fired or what ammunition they were using.
The Nicholas family thinks Narcotics Division supervisors could shed light on issues like these. For more than a year, the family's attorneys have been trying to depose Capt. Paul Follis, who was in charge of the Narcotics Division at the time of the raid, and Lt. Marsha Todd, another supervisor, along with a designated representative of the city, in preparation for a potential wrongful death lawsuit.
The city has insisted that the case does not belong in Probate Court, an argument that the 14th District Court of Appeals rejected on March 26. Last Friday, the Texas Supreme Court declined to review that decision. On Monday, Judge Simoneaux said he would hold a hearing on November 13 to finally consider the Nicholas family's deposition request.
"Our family's search for the truth of what happened to Rhogena will continue—no matter what," her brother John Nicholas said in a statement. "She did not deserve to be executed in her own home by the Houston Police Department. The mayor and chief of police still owe our family an explanation. We're not going away."