Omar Villafranca, NBCDFW.com
They boy's family is criticizing the lines of communication and says troopers should not have fired on the vehicle.
The Department of Public Safety is fighting the release of video and audio recordings from a pursuit that ended with troopers firing shots into a car with a 3-year-old boy inside. This comes after the DPS admitted to NBCDFW that dispatchers knew the toddler was in the car involved in a pursuit.
Stephen Capps, 35, led state troopers on a high-speed chase on the afternoon of Valentines Day through two counties with his 3-year-old son in the car.
DPS originally said troopers did not know that young Raythen Capps was in the car. But last Tuesday, troopers admitted that dispatchers knew the child was in the vehicle.
A DPS spokesman said dispatchers received a call from Hunt County telling them a child could be in the car. Dispatchers sent the information out over the radio just minutes before the chase ended, but the troopers at the scene said they did not hear it over the chopper traffic.
NBCDFW wanted to hear that communication and see the dash camera and DPS chopper video from the chase. That audio and video was requested under the Texas Open Records Act.
“We are seeking to withhold all of this information,” DPS Assistant General Council Jennifer Cohen said in an email response to NBCDFW's request.
The Texas Open Records Act has built into it something called the “law enforcement exemption.” This allows law enforcement entities to withhold most information involved in an ongoing investigation, if it feels the release of that information could compromise the integrity of that investigation.
DPS does not always utilize this law enforcement exemption. They did not cite it when NBCDFW requested similar video of a Jan. 5 pursuit through a cow pasture.
The Capps family maintains the message that the child was in the car that Monday afternoon last week should have been repeated until a trooper responded that it was received.
The chase ended after troopers fired more than 20 rounds into the car. A DPS spokesman said Capps aimed the car at troopers, allowing them to use deadly force.
Raythen was injured on his back in the pursuit, but troopers said the wound was not a gunshot wound. DPS originally thought the boy was grazed by gunfire.
Troopers said a bullet went through the back of his child seat but stopped just short of puncturing him.
However, the boy's family is questioning the injury and say that the booster seat does not have a back.
When asked what the chase policy is if a child is in the car, Tom Vinger with DPS said he was not aware of any specific policy.
"It would have changed the dynamic had we known,” Vinger added. "We rely on troopers to make sound judgments based on the circumstances they face.”
DPS Senior Cpl. Robert White also said that it's up to each trooper to make a decision on the situation.
The Capps family said there's no excuse for what Stephen Capps did, but family members also aren't happy with DPS' explanation of its protocol.
"I want them to change their protocol or have one so that this will never happen to another innocent child," Teresia Barnes, Stephen Capps' mother, said last week. "My grandson was saved by the grace of God. And I don't want it to happen. It could be worse for someone else's child."
Members of the Capps family also are wondering how troopers weren't able to see 3-year-old Raythen, who was strapped to a booster seat during the chase.
"If they're saying my son ran one of them over, how could he get so close to them that they didn't know my little grandson was in the car with them?" Barnes said.
Raythen was released from Children's Medical Center in Dallas last Tuesday.
Troopers said Capps twice dodged stop sticks, a tire-deflation device, and tried to hit them with his vehicle.
"We are all governed by the Texas penal code in the use of deadly force," White said. "Any time that an officer is threatened, any time a person is threatened, they can use deadly force."
Capps was shot twice in the stomach. He faces several charges in the chase, including endangering a child, attempted capital murder, evading police and drug possession.
Background information from a previous story by NBCDFW’s Omar Villafranca and Kim Fischer included in this report.