Charges dropped against 1 of 2 Lone Star College shooting suspects

January 28, 2013 8:27:59 PM PST
One of two suspects in the shooting at a Lone Star College campus faced a judge Monday morning, and now he's a free man.

Berry and another man -- Trey Foster -- were both charged with aggravated assault with a deadly weapon. But that all changed first thing Monday morning.

Foster, 22, appeared in court and remains charged with two counts of aggravated assault with a deadly weapon. Those relate to two of the gunshot victims, Jody Neal and maintenance worker Bobby Cliburn, 69.

In a surprising twist, charges against Berry were dismissed. Berry was also charged with aggravated assault in relation to the Lone Star College shooting. Prosecutors say initially Neal identified Berry as the gunman to police.

Later in the day, Berry, using crutches and still recovering from his gunshot wound, walked out of the Harris County Jail a free man.

"I'm good," he said. "I'm out, I'm good."

"I think they was just wrong and they should have gathered all the evidence before they put it out there like that," said Niresha Allen, Berry's sister.

Campus surveillance video from January 22 shows Berry walking with Foster moments before a fight. Following that, prosecutors say someone fired a gun nine times. Officials say that pistol was recovered when Foster was arrested.

At a news conference Monday afternoon, Harris County Sheriff Adrian Garcia said Berry initially refused to discuss any details about the case, but that once he was facing the two felony charges, Berry admitted he was there and pointed them to Foster as the shooter.

"If it had not been for charging Berry, we may not be providing these statements this morning like the fact that Mr. Foster is in jail or that the fact that we were able to recover a weapon that is being tested for matches," Sheriff Garcia said.

The sheriff said Foster told investigators he has a concealed handgun license, although the sheriff says there is no evidence to support that.

"The investigation was sloppy," said Berry's sister Carmekia Everage. "It was rushed. They didn't take their time to get the right person."

"They slandered his name and put him out there nationwide and made him seem like he was an animal, he was a bad character, but he was not that guy," said Curtis Washington, Berry's cousin.

After Sheriff Garcia called the investigation "complicated" and explained how it's not like a TV show, where everything wraps up neatly in a limited amount of time.

"I'm not going to apologize. I owe him no apology," Sheriff Garcia said. "This is an investigation that is still in progress. Until this case is ultimatly adjudicated, it remains an open investigation. Like I said, I'm proud of my investigators that are always in pursuit of the truth. My statement was that I hope Carlton gets what he has coming, he just may have."

The bottom line, according to prosecutors, is that there is not enough evidence to charge Berry. His family says Berry, who is a student at Lone Star College, was walking to class, didn't have a gun and didn't fire a gun. Instead they say he a victim of his classmate's gunfire.

"Someone decided that he was not a victim," said defense attorney Robert Jones. "As a result of that, he was charged. I think some of it involved misidentification, some of it involved confusion."

"He did get what he deserved. He's a free man," said Washington. "It speaks for itself. There wasn't enough evidence to even hold this young man. He didn't do anything wrong. It's not right the way everything basically went down."

Berry's mother collapsed in tears in the courtroom when she heard the charges would be dismissed.

Foster's family was also in the courtroom as this all unraveled. His mother says he was the victim of gun violence two years ago, and since then he's been living in fear. She recognized that wouldn't justify the actions he's accused of, and she apologized for the shooting.

Sheriff Garcia says this case will continue to play itself out in the courtroom where it belongs.

Stay with Eyewitness News and for the latest on this story.

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