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LEO charged after shooting driver who rammed vehicle into LEO’s car

Austin Johnston is facing charges of aggravated assault, deadly conduct and tampering with physical evidence related to a 2018 shooting

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By Katie Hall
Austin American-Statesman

TRAVIS COUNTY, Texas — A grand jury last week delivered Travis County District Attorney Margaret Moore’s first indictment in a law enforcement shooting in the case of a former state trooper accused of wounding a driver in 2018.

Austin Johnston, who was a Department of Public Safety trooper in September 2018, shot Dustin Dougherty in the back after Dougherty had rammed a pickup truck into Johnston’s vehicle, according to court documents. Dougherty backed up onto the hood of Johnston’s vehicle, according to Johnston’s lawyers.

Dougherty survived and later pleaded guilty to aggravated assault on a public servant with a deadly weapon, records show. Johnston was not injured during the incident.

On Friday, Johnston — now an FBI special agent — was indicted on charges of aggravated assault by a public servant, deadly conduct and tampering with physical evidence, his lawyers said.

No documents about the indictment were available Monday, but Travis County clerks did confirm that a special grand jury indicted one person Friday. Moore declined to confirm whether Johnston had been indicted.

The FBI declined to comment on the case or say whether Johnston has been placed on administrative leave.

Case for a grand jury

Johnston’s attorneys called the indictment political and accused Moore of being “desperate to sacrifice at least one law enforcement officer to mob justice.”

Moore declined to respond to the attorneys’ assertions or comment on the case.

When Moore took office in 2017, she ended a policy by previous District Attorney Rosemary Lehmberg to take all cases to a grand jury that involved a law enforcement officer shooting a person. The DA’s office now reviews the cases, and Moore has said that she only focuses on the shootings that were potentially unlawful or cases in which the facts were in dispute.

Last month, Moore said that she will not take two high-profile use-of-force cases — one that concluded with the death of Javier Ambler II after Williamson County deputies used a stun gun on him multiple times, and another in which an Austin officer shot and killed Michael Ramos — to a grand jury this year and will instead let the future district attorney handle the cases next year.

The announcement came a week after Moore lost the Democratic primary runoff election to challenger José Garza, who will face Republican candidate Martin Harry in the November election to become Travis County’s next district attorney.

“We ... believe that it is the responsible thing to do out of deference to and respect for what can only be viewed as the community’s mandate in the recent election,” Moore said at the time.

Garza said that if elected, he will bring all police shootings and more police misconduct cases before a grand jury.

Moore has previously taken one other case involving a police shooting to a grand jury, which declined to indict the officer. An Austin police sniper shot and killed Hugo Alvarez the night of March 25, 2018. SWAT officers had surrounded his home after Alvarez fired shots from inside, police said. SWAT team members had used a robot to breach the home’s front door. Moments later, officers radioed that Alvarez and his mother were coming out the front door, and the sniper shot him seconds after they came out.

Reports indicate that Austin police were aware of the possibility that Alvarez had left his gun inside the home before they came out, according to the city’s civilian-run Office of Police Oversight.

Moore has brought several cases to grand juries and to trial involving other alleged law enforcement misconduct, including an officer who was found not guilty after using a stun gun on a man who was on his knees and an Austin school district police officer who pleaded no contest to a hit-and-run that left a woman seriously injured.

How the incident unfolded

The chase involving Johnston happened the night of Sept. 8, 2018. He had spotted a stolen pickup truck on North Lamar Boulevard near Airport Boulevard, according to Dougherty’s arrest affidavit. Johnston turned on his lights and siren to get the driver, later identified by authorities as Dougherty, to pull over but Dougherty drove off, court documents say.

During an ensuing chase, Dougherty stopped, reversed and rammed into Johnston’s vehicle, the affidavit says.

Johnston shot at Dougherty while Dougherty was still in the car, Johnston’s lawyers said. Dougherty had one gunshot wound in his back from the bullet, Dougherty’s arrest affidavit says.

Dougherty “had just slammed a 5,000-pound Chevy Silverado pickup truck to the point where it ... comes up onto the hood of the patrol vehicle,” said Doug O’Connell, Johnston’s attorney. “As far as Agent Johnston knew, Dougherty was about to do it again. Where the bullet enters Dougherty is irrelevant.”

Dougherty is currently in prison and could not be reached for comment.

Johnston was not suspended in connection with this incident, DPS officials said.

Johnston returned to full duty within three days, his lawyers said. He later left DPS to join the FBI, according to DPS officials.

His lawyers said the FBI investigated the shooting before hiring him; the FBI declined to confirm this, saying the bureau does not comment on personnel matters.

Texas Rangers conducted a criminal investigation into the shooting and provided the facts to the Travis County DA’s office, DPS officials said. Additionally, DPS’s firearms discharge review board determines whether a shooting was consistent with department policy. However, the board has not reviewed Johnston’s shooting because it does not review cases prior to a grand jury hearing, DPS officials said.

Travis County prosecutors did not invite Johnston to testify on his behalf during last week’s grand jury hearing, Johnston’s attorneys said.

“Agent Johnston, along with the rest of our community, will now have to endure years of waiting until we are able to ensure a Travis County jury hears all of the evidence and renders a verdict of not guilty,” his attorneys said in a written statement.

The American-Statesman has filed a public information request, seeking the dashboard camera video of the crash.

©2020 Austin American-Statesman, Texas

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