By BENJAMIN SHARP
Wharton Journal Spectator

WHARTON — The Wharton County District Attorney’s Office has downgraded the charges against freelance photographer Elmer Cavender.

A grand jury felony indictment was set aside, and, instead, prosecutors have re-filed the case as abuse of official capacity, a misdemeanor.

“The reason being is the element of that charge better fits the offense that he committed, ” said Becky Ivy of the district attorney’s office.

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District Attorney Josh McCown was not available for comment.

A Wharton County grand jury indicted Cavender of the felony charge of misuse of official information in February. The indictment was set aside in March via a motion filed by the DA ’s office and signed by District Judge Daniel Sklar.

Misuse of official information is a third degree felony that carries a potential punishment of up to 10 years in prison and a $10,000 fine.

Abuse of official capacity, the charge Cavender now faces, is a class A misdemeanor punishable by one year in county jail or two years of community supervision and a fine of up to $4,000.

Cavender had pleaded not guilty to the felony charge. He will do likewise with the misdemeanor, said his attorney, Richard Manske.

“The new charge has the same problem as the other one – it presupposes he (Cavender) has some official capacity,” Manske said.

Law enforcement officials had claimed Cavender was given special access to accident scenes as a member of the Wharton Volunteer Fire Department. They alleged he misused that access for personal benefit by selling photographs of an accident on Jan. 19 near Burr that claimed the life of Needville Independent School District Police Chief Ernest Mendoza.

Cavender sold pictures to the Houston Chronicle and Victoria Advocate. The Wharton Journal-Spectator, which also published a photograph, provided Cavender with the film and paid for development and printing, as it does routinely.

The indictment claimed Cavender used for a “non-governmental purpose information to which the defendant had access because of the defendant ’s office, and which information had not been made public.”

It deemed Cavender a “public servant” and more specifically a “volunteer firefighter.”

The new misdemeanor charge dropped the word “firefighter” and now calls him just a “public servant.”

City of Wharton officials had said Cavender was not a member of the department.

He instead served as the department’s “official” photographer, receiving an identification card and a reflective vest. His photos were donated to the department for training purposes.

And Cavender argues he was not given any special access at all. He said he actually took the photos before state troopers even arrived. None of the photos were close ups.

The fire department has since made Cavender return the vest and ID card.

A trial date in District Court on the original felony charge has been dismissed.

With the case being re-filed in county court, Cavender will now have to make a first appearance there and the case will be set on the trial docket.

Ivy, with the DA’s office, said it’s unclear when that date will be set.

“It’s just a matter of when we get to his case,” she said, adding that since Manske has filed for a speedy trial, “they may be getting to it real soon.”