Questions surround Smithville woman’s probation deal in daughter’s death

Dec 25, 2017

The pain expressed in a 911 call by a Smithville man reporting the tragic death of his young daughter continues two years later over his ex-wife’s repeated problems involving drinking and questions about how at least one district attorney’s office handled her criminal charges.

With a felony DWI case pending in Travis County accusing her of operating a vehicle while intoxicated with the couple’s child inside, Jennifer Zapalac again had her daughter with her after midnight on Sept. 30, 2015, when she took a left turn too fast on a rural Smithville road, striking a tree and a fence with her Chevrolet Suburban.

She fled with 7-year-old Victoria in the backseat, probably dead already, according to a crash report.

Victoria Zapalac, shown in a school photo held by her father, Shawn Zapalac, died in 2015. Photo: Jay Janner/American-Statesman Staff

Zapalac, now 51, was charged with intoxication manslaughter, a second-degree felony punishable by up to 20 years in prison. Her blood alcohol level was 0.211 — more than twice the legal limit. It was the third time in three years she had been arrested on charges of drunken driving, following a 2012 Bastrop County DWI that was dismissed through the completion of a pretrial court program.

As with her two previous arrests, however, the recent case never went to trial. Zapalac accepted a deal Oct. 26 for 10 years of probation in exchange for pleading guilty to manslaughter. The agreement let her keep her license to teach elementary and middle school English, and it kept her out of jail, at least initially.

On Wednesday, Bastrop District Judge Christopher Duggan issued an order for Zapalac’s arrest for violating an unspecified condition of her probation. She was booked into jail the next day and was denied bail. Had she obeyed the conditions of her probation, the charge could have been wiped from her record in 10 years. Instead, she now faces up to 20 years in prison.

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Shawn Zapalac, 50, said Jennifer, to whom he was married at the time of their daughter’s death, has not been appropriately punished for her series of missteps.

“I believe my daughter’s death was in vain,” he said. “She died at 7. For what reason? She didn’t want to die.”

The fatal incident received minimal media coverage, with KEYE devoting four paragraphs to it.

In a 911 call shortly after the wreck, Shawn told the operator that his wife had admitted killing their daughter in the wreck and was threatening to commit suicide. He said he hid a gun from her and took Benadryl pills “and threw them in the pasture.” He told the operator he did not know if his wife had been drinking at the time of the wreck because he was not with her all night. When asked for the condition of his daughter, he solemnly muttered, “She’s not breathing. There’s no noise.”

The plea agreement in Bastrop County came after Travis County abandoned its DWI charge against Jennifer Zapalac in May 2016 over what Assistant District Attorney Andrea Austin now calls “a strategic decision in order to help Bastrop County effectively prosecute their case.” Austin declined to reveal the strategy.

Yet a conviction by Travis County could have bolstered Bastrop County’s case by opening the door in the trial’s punishment phase for prosecutors to share details about the Travis County arrest and show a pattern of Zapalac’s history with drinking and driving. Had Zapalac been found guilty in Travis County, her status as a convicted felon would have made her ineligible for probation if the Bastrop County case had gone to trial.

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Travis County’s case was related to a December 2013 incident in Austin in which police said Zapalac’s Chevy Tahoe was drifting over the center line on South Lamar Boulevard and going 23 mph in a 40-mph zone. Zapalac had lethargic movements and speech, according to court documents. She refused breath and blood tests.

With the case pending, court records say Zapalac showed up drunk to a June 2015 DWI court assessment, registering a blood alcohol level of 0.215. She was “so intoxicated that the probation officer could not complete the assessment,” the document said.

A year earlier she had forfeited her personal bond by failing to show up for an April court date. She later was ordered to outfit her vehicle with an alcohol monitoring device.

Bastrop County District Attorney Brian Goertz expressed bewilderment about Travis County’s strategy of dismissing the charges, saying: “I have no idea what that would be. I don’t know what that would have been.”

He declined to comment about negotiations that led to the probation offer for Victoria’s death but said attorneys for both sides and the victim’s family “all made informed decisions to get to that resolution.”

“Jury trials are for when one side or the other has dramatically overstated their position,” Goertz said. “That was not the case here.”

Shawn Zapalac acknowledged there would have been risk in going to trial, as Jennifer’s attorney had produced an expert witness who was prepared to raise the possibility that the presence of alcohol in her blood came from drinks she consumed after the wreck.

In a brief phone interview with the American-Statesman before her recent arrest, Jennifer Zapalac responded “absolutely not” when asked if she was drunk at the time of the crash. She became irritated and hung up when asked if she drank upon returning home from the crash. Earlier, she advised the Statesman to look into pending criminal charges against Shawn Zapalac, whom she divorced not long after the incident. The Statesman could not find any pending charges against him.

Shawn said his ex-wife is conducting a smear campaign against him around town.

Shawn spoke warmly of Victoria, who would be 9 now. She had a passion for animals, liked to dress up as a cheerleader for her brother’s football games and had recently begun to pray and go to church. She was a top student in her class.

Though he lost his daughter, and later his wife, Shawn said he hopes something good will come from the tragedy.

“I hope this story will inspire someone with alcohol problems to get help,” he said.