State v. Escalante, No. 08-24-00158-CR (Tex. App.—El Paso)

Background:

State v. Escalante, an Operation Lone Star case,is a State’s appeal of 59 consolidated misdemeanor cases. Each of the cases arise out of an incident in April 2024 where almost 350 individuals attempted to enter the United States through Gate 36, a location on the border in El Paso County. 141 of these individuals were initially indicted on April 22, 2024 for riot participation, but the county court judge dismissed 140 of these indictments for lack of probable cause.^[1] Two days later, a grand jury returned 141 misdemeanor indictments. Then, 59 of these cases were re-indicted on May 24. Those 59 cases were dismissed by the court on June 9. Then, on June 24, the court signed an order dismissing the remaining 81 indictments for lack of jurisdiction.

State’s Appeal:

In its brief, the State raised two points of error, arguing that the trial court erred by dismissing the indictments 1) based on missing documents, and 2) because the indictments were “valid and perfectly transferred.” First, the State argued that the trial court’s proceedings and documents “are entitled to a ‘presumption of regularity.’” The State emphasized that “the transfer Order and the attached 8-page exhibit had been in each of the 59 Clerk’s files all along.” Second, the State argued that the Class “B” misdemeanor cases had been properly transferred from the District Court to the County Court, so the trial court did have jurisdiction over these cases. The brief concludes by again emphasizing that “the trial court failed to make the proper inquiries” involving the allegedly missing documentation.

Motion to Abate:

On October 25, 2024, the El Paso County Public Defender filed a Motion to Abate Appeal, asking for the appeal to be abated for the trial court to make findings on the record. The motion argued that originally, only the one-page transfer order, without the 8-page exhibit, had been filed in each of the 59 files. However, on the day before each of the Pleas to the Jurisdiction were to be decided, the files were altered to include the 8-page exhibit, which lacked file stamping or any marking. Defense counsel filed “Defendant’s Written Objection to the Altering of Court’s File Without Notice or Hearing” in Escalante’s case, and the Court dismissed all 59 cases. The defense’s motion further describes their investigation into the audit system and their communications with the District Attorney’s and County Clerk’s office to figure out how the document was amended.

The Court granted the motion to abate on October 29, 2024. The Court also ordered the county court judge “to conduct a hearing with the court reporter, the State, Appellees’ counsel, the County Clerk, and any other witnesses he deems necessary to determine whether the clerk’s record is defective or inaccurate.” After the hearing, the county court judge was ordered to enter findings of fact as a supplemental clerk’s record.

Findings of Fact:

^{^[1]} Aaron Martinez, El Paso County Judge Dismisses Border “Riot” Charges Against 140 Migrants, El Paso Times (Apr. 23, 2024) https://www.elpasotimes.com/story/news/immigration/2024/04/22/el-paso-county-judge-no-probable-cause-of-border-riot-arrests-judge-ruben-morales/73418221007/

The county clerk filed Findings of Fact in this case on December 18, 2024. Notably, the court found “that Defendants are correct in their assertion that the record was improperly altered and should be corrected.” The trial court went on to explain that after the plea to the jurisdiction hearing, assistant district attorney contacted the county clerk and asked for the missing attachment to be filed. At the hearing, the ADA admitted “that she never filed a motion to amend or a motion to correct the alleged misfiling, even though she was familiar with the process.” The court noted “[t]he addition or alteration occurred without notice to the Defendants, Defense counsel, or the trial Court.”

Further, the court found that Defense counsel and the trial Court both attempted to reach out to the State on multiple occasions to have this record corrected, but the State did not respond. The court stated “the State was not and is not acting in good faith to ensure an accurate record.” Ultimately, the court concluded that the attachment added to the Certification Orders should be removed to reflect the record accurately.

Motion for Sanctions:

On December 20, 2024, the Defense filed a motion for sanctions against the 34th Judicial District Attorney’s Office and several individual ADAs “for their multiple violations of Rule 52.11 of the Texas Rules of Appellate Procedure, the Texas Disciplinary Rules of Professional Conduct, the United States and Texas Constitutions, and Section 37.10 of the Texas Penal Code.” The motion cited to the evidentiary hearing record and to the trial court’s findings of fact, and asked for the dismissal of all 59 cases with prejudice and “payment to the El Paso County Public Defender for the hours spent by defense counsel in correcting the Clerk’s Record and responding to frivolous filings.”