Friday, May 17, 2013


Court will be on Saturday from 9-3

The prosecution is expected to close sometime Tuesday.

In court the sytem is running all is well

Side note - On Monday morning  I weighed in at 260, this morning I weighed in at 250 - how? I do not know because at home sitting all day is the one thing I not do. 

Waiting om Judge and jury - I have no idea who the first witness is


9:02 A.M.

Direct by AUSA Greg Surovic

Employed with Cameron and WIllacy county in Probation

Job of Probation Office - is to try and give the  defendant a second chance - the PO monitors are following conditions imposed by the court.  The PO gets progress reports - offenders may call - or apply in person -

Types of Probation

Basic Supervision - 4 - low level - 3 middle level and then the high level which would have someone report as much as twice a week.

The PO has in house sanctions against the defendants to deal with prison over crowding - conditions - not be arrested - not violate laws, remain drug free, report in person , look for a job - if there is a substance abuse issue then they have to attend counselling

Motion to Revoke

Filed based on violations - the motion is initiated by the PO if the violation is technical - failure to report - failure to do drug counselling.- The DA will sign off on it

In the case of the arrest - a memo is sent by the PO to the DA and the DA investigates before filing a Motion to Revoke

Mendez as a surveillance officer monitored Roberto Garcia.  He was originally on an intensive program - he was to report 2x a week -  he then stopped reporting - they could not find him - the PO has to do due diligence to insure he was not already in custody - He then filed a technical violation Motion directly with the court.

He eventually was served on the warrant - he was then sentenced to 3 years at TDC - he was then placed on shock probation - after someone is revoked or sentenced to TDC - the court which has jurisdiction over the case has 180 days to bench warrant the defendant back and can put the defendant on a form of probation.

9:13 a.m

During this intensive surveillance program he failed to report.

Exhibit 198 - Memo to Judge Ben Euresti - Motion to Revoke - 11/14/2008

The letter sets out the history for the court.  Since being pit on surveillance program first time he performed poorly

In 2006 after the arrest he got shock probation.  He got 6 years probated for 6 years.  It was to end June 15, 2012. 

On the surveillance program there are home visits - he disappeared on July 24th, 2006.  Mendez did have contact with him - a field officer had contact with him in November 2008 - Additional deputies were needed for the arrest - in the past while being arrested the Garcia was known to have weapons.
 Mr. Garcia would not open the door -

Mr. Mendez wanted Garcia arrested because he felt he was a danger to the community.  A person is put on probation for rehabilitation - Mendez - says probation was not working with Roberto Garcia - Mendez felt very strongly about the need for revokation

Oscar de la Fuente adviced he had already cut a deal with Villalobos and there would be no revocation.(these are PO notes we are looking at)

Mendez made note of his objection to the continuace of probation, but a deal was already cut before court.

At any given time Mendez would be supervising between 40-45 offenders at a time

Hervery Roel

9:26 a.m.

we are looking at chronological notes entered by the PO, such as above.  4/24/08 - Office visit by Roel - they were dealing with aggressive behavior - Roel told the PO he was told by his attorney it was being worked out - Roel did not want to be on surveillance or probation - Roel was told he would have to continue with all terms.

Mendez - Roel not a good candidate for early release - ordered to appear - ADA Maria de Ford per Villalobos did not object - attorney Blaylock told the court he had complete some anger course.

Roel had a history of family violence against a Jessica R.

There were failures to report - he failed to complete all of his counselling - he was also a person of interest in a murder case in Brownsville.

Roel got an early release from probation

Mendez - both Garcia and Roel cases involved deals cut between the defense counsel and Villalobos - at no time had Villalobos office contacted the PO.

[note - state judges are known to be lazy - they are not reading the files and just go along with agreements - in just about all of these cases had the judge simply done his or her job these deals would have fallen though.]

Androphy on Cross of PO Mendez

9:34 a.m.

Mendez is now a supervisor - before as a regular PO he had a lot of case.  There offices had 1000's of cases.  They had about 45-50 officers - between all of the offices. 4 offices - Brownsville - San Benito, Port Isabel, and Willacy county.

Eventually Mendez moved up from misdemeanor cases after a year - he now went to felony cases.  there are more misdemeanor people on probation than felony defendants.

As many as 95% of misdemeanor cases have problems - fewer with felony offenders - as a misdemeanor PO he had about 200 cases - tracking 200 people reqiires good time managment skills and choosing high risk versus low risk  - ultimate objective is to keep them on the straight and narrow.  The goal is to not pu them in jail.  Mendez agrees overcrowding has been a problem.

Note:  Androphy is setting a defense that Villalobos cut these deals to deal with overcrowding.

The PO's are being told about overcrowding all of the time.  This forces the PO's to find ways to keep offenders out of jail -

9:43 a.m.

Maybe 25-50 new people on probation a week - this also causes probation overcrowding - but Mendez notes they are losing people on probation  so the numbers kind of balance out.

Average 2-10 years on probation - they can be early terminated.  On the felony side Mendez does not know how many get early release.  In felony cases very rarely are there early releases.       

Mendez is noting as new cases come in others are terminated upon finishing probation - but on balance the total number of people on probation has increased.

Mendez agrees that his office and the DA's office on a professional level disagree on what to do about early release.  Mendez agrees he does not always agree with how some judges handle probation cases.  Mendez says agreements are made in advance and the judge goes long with what defense counsel and the DA agree to.

Mendez says he does get to speak at the hearing.  Judges see POs as eyes and ears of the judge. 

If there is an agreement a presentence investigation is not normally done. PO's office does PSI's

The DA has a family violence section. 

Mendez agrees his office might make a mistake on how a defendant should be treated -

Level 2 is high risk - there is no level 1 - just 2-4 - when a person is placed on probation an assessment is done - prior record, employment, age , juvenile record

10:03 a.m.

Mendez oversees 13 probation officers - as a regular felony supervisor each PO has about 110 offenders - so somewhere around 1300 (Judge Hanen noted Androphy used 100 to make the math easier - trust me Judge Hanen's levity helps everyone and helps keeps the jury engaged - he is not being mean or unprofessionally)

Level 2 offenders have a lot of restrictions - the PO's do their best to rehab the offenders - locking up offenders do not necessarily help rehab the offender -

On failures to report the district clerk is notified and then it is forwarded to the judge - same filing process as any regular attorney.  Sometimes the defendant knows about the filings and sometimes not.

The defense lawyer does not get copies - once a warrant is issued it goes to the defendant.  If the judge signs off on the Motion to Revoke the clerk mails it out.

We are looking States Motion to Revoke on Roberto Garcia Garcia.  It was for failure to report.  He also could not find suitable employment - plus violating curfew  Sometime around 12/5/2006

10:15 a.m.

In this case the court did not set it for hearing - he just ordered the warrant.  Judge agreed to warrant on 12/16 -

Exhibit 197 - in Garcia vs, Garcia - the court is advising Mr. Oscar de la Fuente a hearing will be held - ODLF noticed on 12/12 - Mendes had no awareness if the defendant had returned to Brownsville

Motions to Revoke are not held unless the defendant appears.

Exhbit 198 - Memo to Judge Euresti from Mendez - Mendez is telling the court his issues with Robert0 Garcia  - the case was heard on November 17. 2008.   (these dates are correct - a pretty long time frame)

Same ltr - on page 2 - shows someone went to his house multiple times before the motion to revoke was filed. 

Once notice of hearing goes out - PO makes attempt to locate Robert Garcia - A tip was received from offenders brother that the Roberto Garcia was at the house.

Court held hearing on 11/17/2008 - the law requires PO has a duty to serve offender with notice of hearing.  The PO has a legal duty to try and contact the offender once the warrant issues.

Due diligency defense - this is in the Texas Code of Criminal Procedure - it is a defense to the revocation if due diligence is not done by serving the offender with the warrant. 

10:32 a,m.

Mendez says they made an attempt to servve the warrant once they got a tip Roberto garcia was back in town .  [note there is case law which deals with due diligence - so it is not so simple]


Roberto Garcia was brought in by his attorney without having been served - he came in voluntarily - but note - Oscar de la Fuente had an agreement in advance.

This is the cancer case wherein Roberto Garcia was in Mexico undergoing cancer treatment.  DA's office provided the medical records.

PO Mendez was there and he did not speak up at the hearing - according to Mendez it would be rare to speak up in Judge Euresti's court.

Mendez did not push it because of what he had been told by Oscar de la Fuente - Mendez's experience is plea deals make the PO's testimony something not really being considered.

Mendez has spoken up in other courts - sometime in Judge Euresti.

We are on break

Judge Hanen suggested the attorneys move along - they are taking too long

The attorneys are estimating about another 30 minutes for this witness

10:56 a.m.  Back from break

Androphy - Mendez was concerned Roberto Garcia was using drugs and that is why he was not there - Mendez learned later garcia was undergoing cancer treatment

[note state - not federal judges are known for signing off on everything without reading the motion or order - I once noted Judge Ben Euresti would sign his own death warrant and  then not know why they are putting a needle in this arm - pleas are normal - but the bad ones get through because far too many state (not federal) judges are not doing their job]


John Blaylock, ADA and Mendez before Judge Alejandro - the discussion concerning early termination was discussed.  put on probation August 1, 2003 to expire in August 1, 2008 -  during this time frame PO's increased intensity of surveillance - the termination is only 4 months early - Mendez quick math - this would be about 95% of the time -

While Roel was on probation he was arrested in a murder charge - but this was not raised with the court at the hearing in opposing the motion for early release.

AUSA Surovic back on redirect 11:11 a.m.

Roel continuing - in fact Roel had his propation extented with monitoring to 2009 - not 2008 as representing by Androphy - so he was early released 16 months early after having had his probation extended by a year for previous conduct.

PO objected to early release - he wanted to put Roel in another program - this was a domestic abuse case.  The early termiination kept Roel from this other program.  Mendez says Hervey Roel was involved in other continuing acts of family violence.

Roberto Garcia Garcia

Motion to Revoke 2008 - Garcia appeared at the hearing so due diligence would not be an issue - Mendez believes due diligence was met because Garcia Garcia was at the hearing.

Exhibit 135 - Mendez was never provided the medical records - he was only told about the claim - PO's had no knowledge if Garcia had had cancer.

The key to continuing the probation was based on the agreement between Villalobos and Oscar De la Fuente

We are looking at Villalobos personal log on this case - 10/28/2008 - Mendez did not know Oscar de la Fuente met with Villalobos - DA's office never notified PO's office. based on a tip they tried to arrest Garcia but he never answered the door.

Issue - keeping track of probationers

A key part is the defendants participating and reporting - this helps with supervision.

Mendez - Roberto Garcia bad probationer - same for Hervery Roel -

At no time no one discussed with Mendez about jail crowding - or probation crowding -

These case stood out in Mendez's miind because of the agreements which were made before the PO having their input in the case.  Mendez was not consulted before the pleas were done.

AUSA Surovic passes the witness - Androphy no futher questions

Next Witness - Rene Gonzalez 11:28

He is first administrative assistant DA - this means he is second in command - he oversees administrative aspects of the office

He joined DA's office in late 80's under Saenz and Euresti - but current term started in 2005 - under Villalobos

in 2010 for six months he was not with Villalobos office

In 2005 - he was in appellate division of the office
In 2011 - Mr. Mattinly had to take extended medical leave - so he was named interim assistant chief - Mattingly was reasigned in 2012 and Gonzalez was formally named assistant chief

One duty is custodian of records for DA's office

Special Operations Group - SOG - investigators to do undercover work.  Mr. Villalobos created the SOG - they were part of the DA's office - employed by DA's office.

DA's office prosecutes a lot of people from Mexico - many are Mexican nationals here legally and illegally - when they flee they tend to flee to Mexico.

Gonzalez a substantial number of cases include drug cases. 

exhibit 321 - Notes showing Villalobos meeting with Oscar De la Fuente - Memo form created by Galvan to show meetings with attorneys and write down which cases would be there and it would also get the case files into his Villalobos office.

The handwritten notes are Villalobos made during the meeting or after the meeting

Another document showing meeting with ODLF over Roberto Garcia Garcia - the note shows Villalobos recommendation by Villalobos.  These notes were kept by the DA's office - they were kept initially in a notebook or binder in Villalobos office and then later scanned in to the computer by Galvan.

We are looking at a log of files pulled for DA Villalobos and then returned to the court DA - Gonzalez believes Galvan initiated this log on her own.  This allowed Galvan to keep track of files to keep them from getting lost.

Villalobos would communicate his wishes to court DA's on yellow posted notes. 

11:43 a.m.

When Ms. Galvan tried to find this particular log she could not find it - Apparently Mr. Gonzalez was not fully aware of all these logs.  Villalobos controlled the files.  Galvan had actually created a hard copy - this replaced the electronic copy which went missing (maybe never scanned)

Jose Alfredo Villarreal case - murder case.

We are lookiing at the Motion to Appoint an Attorney Pro Tem in the Villarreal case - used when DA has a conflict or otherwise disqualified in the case.

Ruben Pena appointed March 10, 2011.

Pena was chosen by Ben Euresti who is also the local administrative presiding judge.  The order would also include a yellow post it note recommending an attorney pro tem

The post it note is regularly kept by the DA's office -  ASUA proved up the business record so it can be admitted

The exhibit is a memo from Ruben Pena , special prosecutor - to Monica Gonzalez - paralegal in the court - asking that a motion to dismiss be prepared in the murder case Memo says "Call me when when ready"  Then it says at the the end for Monica to check with Vilallobos to make sure okay.

Villalobos had no authority in the case once Pena was appointed - note the standard discussed above."

The memo was prepared on the 16th after Pena appointed and then Motion dismissed was filed March 17,

Gonzalez testified most of Pena's practice is civil and not criminal - According to Gonzalez Pena had never prosecuted a murder case. 

Gonzalez based on his experience who has done murder cases 6-7 cases was not enough to review the case.

Gonzalez does not know the exact relationship with Pena

Side bar - AUSA asking about Villalobos having to look for a new place to live. Villalobos had rented living space from Ruben Pena

Lunch break

Cross Examination by Norton Colvin


Under Villalobos the appellate lawyers were in the courtroom during complex  trials.  [note this is actually a good practice - so many cases are lost because the trial lawyers do not know how to preserve appellate error]

Colvin has established Villalobos good practice of keeping duplicate records of his work - Gonzalez agrees this is not evidence of trying to conceal things.

Record showing where Villalobos has entered notes in a case where SPI police failed to get blood test on a DWI - Villalobos says to give them grief over this matters - order investigator to restaurant for possible receipts evidencing drinking by the defendant.

Colvin has showed two cases where Blaylock and De la Fuente were not able to get deals. with Villalobos

Colvin showing another case wherein Villalobos recommending 1st DWI be changed to PI class "C" - reasono no blood work

Colvin got Gonzalez to agree that these above cases were not CYA notes because based on the time frame there is no evidence Villalobos knew about the criminal investigation.

Gonzales got a subpoena for Villalobos calender and appointment log. He went to Secretary Galvan.  This is when Galvan told Gonzalez about the log, which was in a binder.

Villalobos ordered Gonzalez to not turn it over because it was not a calender, just a binder.

Gonzalez believes Villalobos did not know about the logs.  It was turned over based on the government's amended subpoena.

Gonzalez was the records custodian and responsible for responding to subpoenas.  Gonzalez is not sure if the log was an appointment log -  Gonzalez asked that the subpoena be amended so it would cover the logs.

Villalobos told Gonzalez the logs were not responsive to the subpoena and they should not be turned over. 

Gonzalez felt like he was between a rock and a hard place - Gonzalez knew of the hand written notes, but not the traffic logs.

Gonzalez eventually turned over documents.  Gonzalez says agents are still in his office looking for documents.  Judge Hanen sustained objection on relevance


AUSA Wynn doing cross.

Mattingly in private practice - went to South Texas College of Law

1996 - duty as DA to insure justice got down - some cases got worked out - some were tried.

Left DA's office 1997 - went into private practice after new administration

Mattingly went back in 2005 after Villalobos was elected DA. 

His title under Villalobos 2nd assistant DA in charge

later in 2005 he became Chief 1st Assistant DA.

[note Villalobos wearing an olive suit - Mattingly said gray another witness said khaki - ]


Mattingly was the chief trial attorney for the case - team leader

Case about murder

RuBane 2005 to about Nov 2006 was a first chair prosecutor until she left the DA's office

Trial Team Korina Barraza, Lawrence Rabb, and Mattingly.  All but Mattingly still with DA's office.

Mattingly  directed the process and kept Villalobos informed. 

Mattingly going over crime scene - not nice - evidence of animals getting to the body. 

Body ID by jewelry.

Mattingly claims case was based on circumstantial evidence.

Ballistic evidence - bullet removed from her head. 

Search warrant of Livingston apartment in Rocksport Texas.  They found  a dud bullet in it.  Mattingly knew Livingston preferred glock fire arms.  These have unique markings.  At the scene of the murder the casing's found were compared with the dud found in Livingston's apartment.

The DPS ballistics expert said the markings were the same in the dud and the casings found at the scene.

A receipt was found from a gun store in the Rockport area.  The bullet found in the body had markings which indicated it was not from a glock weapon.  This according to the DPS expert.  The receipt showed the purchased and after market glock barrel so he could fire 9 mm bullets. 

The gun store clerk ID's Livingston as the purchaser of the after market barrel. 

Evidence put Livingston at the scene.  RuBane worked on cell numbers and she was able to show Livingston was in Cameron county at the time of the murder.  There was also a receipt for a restaurant wherein Livingston and the victim were ID as eating there the day of the murder .

The evidence shows Livingston headed for Houston and had his car detailed at a car wash.  The check point showed he went through the check point in Sarita.

They used a bug expert to place the time of death.  Lots of bugs and larve were found on the body.

Mattingly is explaining the meaning of circumstantial evidence versus direct evidence - such as an eye witness.

1:32 p.m

Mattingly is going over all the things they had to do to help the bug expert form an opinion

Mattingly felt like they had a very strong case.

AUSA asking if semen on her jeans was an issue - Mattingly remembers semen was found but does not remember conclusion of tests - Mattinging did not think the evidence was important

The husband's alibi turned out to be true - he believed his wife was substitute teaching that day.

Mattingly believes Gladden was lead attorney for Livingston.  Mattingly says Gladden and he did not like each other.

Mattingly felt Livingston should have gone to prison for the rest of his life.

This was not a capital case so death penalty was off the table.  Capital murder requires certain factors - law enforcement - child under age `10 - committing another crime at the time of the murder.

In a plea case depending on the structure the judge makes the decision.

Mattingly felt a possible plea  - you begin bargaining with the top - life in prison - negotiate a position from strength - in Texas on a life sentence you are eligible for parole after 30 years - same for a 60 years - you must do 50% of time before being eligible for parole, 

At one point point went to 55 years and then 45 years - there was an unwritten policy of a minimum of 40 years.  Mattingly and Gladden were not getting along or seeing eye to eye

[note Mattingly is spending a lot of time making Gladden look bad - I call this self serving - lawyers do not agree on pleas - fighting back and forth is normal business]

Mattingly is aware of the civil lawsuit, but beyond that nothing.

Mattingly - a DA can refer a party to a civil attorney if they need help, but they cannot accept a referral fee.

Side Bar - issue is questions related to Villalobos involvement in settling of civil case -

Mattingly was not personally involved in resolution of the civil case.

Feb 12, 2007, the trial team and defense team were called into Judge Limas chambers - Limas wanted  to know if there was any way to plea this this.  Villalobos, Mattingly, Barraza, and Rabb were all there in chambers.

When Mattingly left Judge Limas chamber they understood no plea.  Mattingly, Barraza, and Rabb went back to their office Monday night to get ready for trial

On Tuesday the Plea Agreement was filed.  They are going over the plea agreement to insure the defendant understands the plea and has not been threatened and promised nothing.

Livingston was born in India but was a naturalized citizen of the US. 

Livingston's signature becomes a judicial admission.  The judge and attorney going over the plea agreement avoids confusion at a later date.

It contains a plea bargain recommendation agreed to by the DA and and defense.  If the court fails to follow it then the defendant can withdraw his plea.

Mattingly hand wrote in recommendation of 23 years, give truthful admission of the facts, and defendant waives his right to appeal or file post conviction habeas corpus.

Livingston was charged with 1st degree murder - Livingston's signature was notarized.  Signed off by Korina Barraza, Gladden and Livingson - this was Tuesday morning.  Signed February 13, 2007 - this was done at 9:36 a.m

On the 13th Mattingly witnessed an accident and had to wait for the first responders.  - His comments were not written on the morning of the 13th.  Mattingly says the deal was written the night before - Monday - but Mattingly already testified after he left Limas chambers the night before there was no deal and he and his staff went  to prepare for trial.

Because of the strife between Mattingly and Gladden, Villalobos negotiated the plea.  When Mattingly finally got to court the plea was already underway.

Mattingly said he told Villalobos Limas was going to give Livingston the 60 days to get his affairs in order.  Villalobos then said that they needed to sentence Livingston that day

2:30 p.m. - court will recess at 3:00 p.m.

During Monday's plea discussions Gladden's lawyer raised  the 60 day issue.  They also raised the issue of Livingston doing the program to attend Huntsville to get use to jail.

Texas provides that once convicted if the sentence is more than 10 years the defendant must be taken into custody.

On the terms anyone can ask to withdraw their plea at any time before conviction. 

By sentencing the same day, he had no duty to return.  Unlike with a plea and later sentence to still get the plea you have to return for sentencing.

Victim impact statement is after sentencing. 

Mattingly had no idea Livingson was to be sentenced on the same day.

The family did not express any concern about the evidence which may have held the victim in a bad light.  The DA's office let the family know about the bad light photos in advance. 

Mattingly does not know how much time the family was prepared to make a statement for the victim.  Mattingly only found out that morning about the sentencing - so the question is when did the family have time to prepare for a statement after sentencing

Mattingly - Villalobos and Eddie Lucio were childhood friends - went to law school together and practiced law together in Dallas.

Mattingly felt the caliber of the murder merited a harsher sentence - Mattingly also felt like it could impact other murder pleas in the future when dealing with other defense attorneys.

Mattiingly says when defense attorneys had issues - they would go to him - in fact - Mattingly would tell most defense attorney he would actually recommend a worse plea for their client.  When  defense counsel learned Mattingly would not change proposed pleas -  Noe Garza, John Blaylock, Oscar de la Fuente, Rick Canales, Mike Trejo, and Ernesto Gamez would all by-pass Mattingly and go to Villalobos

Before the last break Judge Hanen - outside the presence of the jury noted that both sides are dealing with a lot of testimony which has nothing to do with the indictment.

The court recessed for the day - Judge Hanen now addressing how time being used by the attorneys.

DOJ expects to rest late Monday or Tuesday  -

Androphy - estimates defense could be done by Friday - Villalobos may testify

Judge admonishing he wanted to try this over  the summer, but they wanted it now - they promised two weeks - Judge Hanen is complaining about repeated testimony - each side was told 20 hours each - both sides are approaching the limts they were given. 

Judge Hanen is doing his job - there must be controls - today in my opinion half of Mattingly's testimony was unnecessary

DOJ just pulled several witnesses including the victim's mother.

Judge Hanen is noting they cannot go 8 p.m. - that causes jury fatigue so it is not good.  Judge Hanen said juries have told him "do they think we are stupid that the have to keep on repeating the same thing."


Anonymous said...

What is shock probation?

BobbyWC said...

Someone in another post asked about me biting my lip

look I will not comment about certain things now - I want to -

Also I have a pretty good relatinship with the attorneys on both sides.

I have been told they consider my notes accurate.

I get the business - each side has a job to do - an I respect it - I enjoy watching Norton Colvin the most - he has a light handed way while getting done what needs to get done.

Afer a verdict, because the judge will do the sentencing if need be, I will do a lot of comments.

I have a comment later tonight - as a separate post

Bobby WC

Anonymous said...

Thanks, what about shock probation? As a layman I've never heard of it

BobbyWC said...

'Shock Probation is a program under Texas law where a defendant convicted of a crime is sentenced to prison, but within 6 months a judge reduces the sentence to probation.

The purpose is to “shock” the defendant into never committing a crime again, by serving prison time, but releasing them on probation before they become hardened by the prison sentence. It saves the Texas Department of Criminal Justice the expense or long term incarceration, and reduces the likelihood of future criminal behavior.

A defendant is eligible for shock probation for a misdemeanor or first offense felony charge. Shock probation may be recommended by a jury during sentencing, or issued by a judge after the fact"

Anonymous said...

Thanks, very educational!