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Anti-gay crimes rarely prosecuted in Texas by name

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Photo: Michael Barajas, License: N/A

Preston Vest, Troy Clattenburg's nephew, said Clattenburg (inset) was lke a brother. Shortly after the murder, Vest got a tattoo in remembrance of Clattenburg.

Photo: , License: N/A

Troy Clattenburg

When Ruth Clattenburg found her son inside the apartment they shared off West Bitters Road the morning of February 21, 2010, he'd been dead for hours. Shot execution-style in the back of the head, Troy Martinez Clattenburg, 24, was propped up against a dryer in the hallway between his bedroom and bathroom in boxers and a T-shirt. After frantically notifying neighbors, the mother rushed back to the apartment to cover her son with his favorite blanket, trying to warm the cold body.

When details of the crime first began to surface, Clattenburg's death seemed to be textbook example of murder sparked by anti-gay hate. Cody Carmichael, who was eventually charged, convicted, and sent to prison for the murder, told police Clattenburg made an unwanted pass at him as he and another friend drank and smoked pot inside Clattenburg's apartment. Carmichael told investigators he left, borrowed a black .380-caliber handgun from the friend, and returned to the apartment. When Clattenburg turned his back after opening the door, Carmichael fired a single round. According to an investigator's report, Carmichael told police that Clattenburg "did not see it coming."

Clattenburg's mother never went back inside the apartment after her haunting discovery. And in the two years since the murder relatives of Clattenburg, along with local activists, have criticized authorities for not prosecuting the murder as a hate crime, either at the state or federal level.

Although the family "wanted a hate-crimes charge from day one," as Clattenburg's sister Ginger Hicks put it, the family never got one. "Hate-crimes laws were passed to protect people like my brother Troy, and who are they protecting if nobody's familiar with it and nobody's using it?" Hicks asked.

"It's obviously too late for Troy, but what about preventing other tragedies?"

It was in response to public outcry over 1998's grisly race-motivated dragging death of James Byrd Jr. in Jasper that Texas lawmakers tightened the state's hate-crimes law in 2001 by adding language protecting victims "identified by race, color, disability, religion, national origin or ancestry, age, gender, and sexual preference." But rather than putting a stand-alone charge on the books, lawmakers created a law that enhances the underlying charge against suspects of bias-motivated crimes by a single level, bumping second-degree felonies to first-degree, for instance. For the most serious crimes, like murder, the charge largely serves as window dressing in court, something that adds virtually nothing to the punishment prosecutors can score.

For cases like Clattenburg's, there's little to no payoff for the extra effort, said Bexar County Assistant District Attorney Cliff Herberg.

Adding a hate charge in Clattenburg's murder, Herberg said, could have even threatened the underlying case against Carmichael at trial — Carmichael eventually struck a plea deal for a 40-year sentence, avoiding a trial. "It didn't add anything for us, and it threatened to weaken our case," said Herberg, insisting the story surrounding the murder proved to be more complex. Carmichael had previously worked at a gay bar and had no documented history of violence or anti-gay discrimination. "There didn't seem to be anything we could point to to prove it was a hate crime other than that initial statement," Herberg said.

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