Tyler

By CASEY KNAUPP
Staff Writer

Before a Smith County jury in the courtroom for the third day of Patrick "Booger Red" Kelly's trial Thursday, the foster dad of three children he is accused of sexual abusing asserted his Fifth Amendment right to not testify.

John Cantrell, who sparked a delay in Kelly's Smith County case after he was charged in June with aggravated sexual assault of a child for an alleged 1990 incident in California was brought to 241st District Judge Jack Skeen Jr.'s court on the judge's order.

Kelly's defense attorney Thad Davidson said earlier he was unable to track Cantrell down and didn't know how to issue an out-of-state subpoena so on Davidson's motion, Skeen sent a Smith County sheriff deputy to California, where Cantrell was appearing in court Monday, and brought the witness back to Tyler to testify in Kelly's case.

F.R. "Buck" Files Jr. and Brett Harrison were appointed by Skeen to represent Cantrell.

Files said that he and Cantrell's defense attorney in California each instructed Cantrell to claim his privilege against self incrimination. He said Davidson's motion clearly made allegations that Cantrell may have been involved in sexually abusing his foster children, who are victims in Kelly's case. Cantrell did invoke his Fifth Amendment right to not testify.

Skeen said because Cantrell was ordered to be brought to Smith County to testify in court on Wednesday or Thursday, and his order expired Thursday, Cantrell, at the request of Files, could be released from custody on a personal recognizance bond. Skeen said he would be provided a plane ticket if he wanted to return to California.

Cantrell has not been charged of any crime in Smith County and is not in custody on his California charges. Assistant Smith County District Attorney Joe Murphy said he encouraged Cantrell's release and his return to his wife and family in East Texas.

He said Child Protective Services have closed its investigation of any sexual abuse concerning Cantrell and his foster children because the allegations were "completely unfounded." Murphy said there was no clear and convincing evidence found that warranted criminal charges.

Davidson said he had no objection to Cantrell's release.

Files asked about Cantrell's wife, Margie, and her being subpoenaed by Davidson. Files said she would also need a lawyer and to invoke her Fifth Amendment right because Davidson had also made allegations that she participated in sexual abuse of children with her husband.

Skeen appointed Files and Harrison to represent Mrs. Cantrell and said they would hold a similar hearing when the defense got ready to call her as a witness in the case. After the hearing, the jury returned to the courtroom and began hearing evidence from Child Protective Services Supervisor Kristi Hachtel, who was involved in the case of Kelly's alleged victims.

Kelly, 41, Tyler, is on trial for engaging in organized criminal activity - forcing two of the siblings to have sex with each other for his financial gain - on Aug. 1, 2004. He could face five years to life in prison if convicted by the seven-woman, five-man Smith County jury in 241st District Judge Jack Skeen Jr.'s court.

The victims in the case include an 11-year-old girl, her 9-year-old brother and 8-year-old sister, as well as their 10-year-old aunt. A 15-year-old daughter of one of the six co-defendants was also allegedly sexually abused.