A novel approach to keeping gang members off the streets while they await trial in Wichita County
R. Kinley Hegglund, Jr.
The ongoing and dramatic fight against criminal street gangs requires law enforcement officials to proactively make use of all available options. Three gang injunctions have been implemented in Wichita Falls since 2006 (read more about them in the September-October 2007 issue of this journal at www.tdcaa.com/ node/1140), the first of which named 21 members of the Varrio Carnales (VC) street gang. Violations of the injunctions are common (police have made more than 50 arrests since the injunctions went into effect), but so are additional crimes while gang members are out on bond. To protect law-abiding residents, we began searching for ways to keep these repeat offenders off the street until their trials; we found that trying gang members for civil contempt not only punished them more quickly but also kept them in jail instead of letting them bond out.
The VC Gang Injunction revolves around certain prohibitions in a set safety zone. VC Safety Zone No. 1 comprises 1.54 square miles and is located in the center of Wichita Falls. This zone was created because it is where the VC tended to commit the majority of its criminal activity and where many of the gang members lived and went to school. Within the safety zone, the trial court prohibited named defendants from engaging in 29 specific activities, including associating with other gang members, possessing alcohol, wearing gang colors, and violating curfew. Although these activities are not generally illegal, because a judge has determined that the prohibitions are reasonably related to stopping gang activity, they were included in the injunction. It should be noted that a defendant in a civil gang injunction case receives due process prior to being placed on a gang injunction. Such defendants have the right to retain legal counsel and the right to a jury trial. The 29 VC gang prohibitions apply only to defendants who have been afforded said due process of law.
Gang injunction violations constitute a Class A misdemeanor.1 The DA’s office has been very successful in obtaining convictions for these violators, and there are generally multiple injunction violations per arrest. Convictions typically result in 10 months’ incarceration per incident, but unfortunately, gang members habitually violate injunction prohibitions while released on bond for their initial offenses. The lack of severe and immediate consequences emboldens the gangs and frustrates the law enforcement officers tasked with gang suppression. When a gang member repeatedly violates a gang injunction, the community suffers and individuals are put in harm’s way.
Section 125.066 of the Civil Practice and Remedies Code authorizes violators of gang injunctions to be held in civil contempt of court. Punishment for contempt was set by statute at 10 to 30 days in jail and $1,000 to $10,000 per violation. A contempt of court proceeding can be completed quickly, and a conviction places the gang member behind bars without possibility of bonding out. Pursuing civil contempt was a novel idea and completely unprecedented in Wichita County, so with the permission of City Attorney Miles Risley and Criminal District Attorney Barry Macha, staff attorneys further researched the matter. We found that a defendant in a civil contempt case is entitled to certain protections, such as the right to court-appointed counsel (if indigent) and a jury trial (if requested) if the possible jail time exceeded six months (including stacking).
Not finding any legal obstacles and having confidence in the jurors of Wichita County, we decided to proceed. On November 14, 2008, contempt cases were filed and set for trial in December 2008 against two leading VC members, Israel Contreras (age 29) and Sergio Maldonado (age 21). The suits alleged that each defendant had violated eight separate provisions of the VC gang injunction. Contreras’ violations stemmed from one incident, whereas Maldonado’s violations were from three different arrests.
On September 5, 2008, Officers Jason Leavelle and Jason Beesinger, members of the Wichita Falls Gang Task Force, observed Israel Contreras driving in VC Safety Zone No. 1 at 10:36 p.m. (after the 9 p.m. curfew). They paced him and found that he was driving over 80 miles per hour in a marked 60 mph zone. As the officers were pursuing Contreras, they observed what appeared to be a lit cigarette fly out of the car’s window, followed soon thereafter by a plastic baggie. At the stop, Officer Beesinger noted a strong odor of marijuana coming from Israel Contreras. Officer Leavelle retrieved the discarded baggie and found it contained marijuana, and Contreras admitted to Officer Beesinger that he had thrown a marijuana blunt from the car. In addition to the marijuana, the officers observed open containers of alcohol in the car, including a cup of alcohol sitting in the console next to Contreras accompanied by another VC gang member.
Contreras was arrested for contempt of the gang injunction. His eight violations included associating with another VC gang member, possessing an alcoholic beverage, speeding, possessing of narcotics, violating the 9:00 p.m. curfew, operating a motor vehicle while under the influence, tampering with evidence (attempted disposal of drugs), and driving with a suspended driver’s license.
Maldonado’s first five violations stemmed from a November 17, 2006, police pursuit in which Maldonado and other VC gang members attempted to evade police. Upon capture, Maldonado had in his possession a cell phone with a VC screen background—possessing property with gang symbols is a violation of the injunction. Additionally, Maldonado was charged with breaking the injunction’s curfew, associating with VC gang members, fleeing from peace officers, and giving false information to a peace officer (for initially denying ownership of the cell phone).
Two weeks later, Maldonado was observed associating with two other members of the VC gang and entering the home of another gang member, both violations of the injunction. His eighth violation occurred when Maldonado was observed on a public street in the VC gang zone after curfew.
The city’s hope for a quick trial in December 2008 did not materialize. The main issue was whether this case was criminal or civil in nature. The defendants’ attorneys insisted that this was a criminal case and should be governed by the rules of criminal procedure, where the burden of proof would be on the city to prove guilt beyond a reasonable doubt. The city felt that the legislative intent was clear that this was a civil contempt case; the gang statute expressly states that contempt of court proceedings are civil proceedings. We presented the legislative history to the trial judge to show that legislators’ purpose in creating the contempt statute was to provide a speedy alternative to backlogged criminal dockets (additionally, gang violations can be tried criminally via the Penal Code). That both provisions exist strengthens the argument that the contempt of court process constitutes a civil alternative to criminal prosecutions. Visiting Judge R.L. Thornton, after reviewing briefs from both parties, ruled that the case would be tried as a civil proceeding, and the burden of proof would be simply preponderance of the evidence. The case was transferred to the 78th District Court and set for a jury trial on July 20, 2009, before Judge Roy Sparkman.
With the trial months in the future, the city sent out discovery to both defendants, including interrogatories, admissions, requests for production, and requests for disclosure. At this point, Contreras’ attorney withdrew, citing a lack of experience in civil litigation. Maldonado’s lawyer filed a global objection to the discovery one day after discovery was due; however, neither defendant responded to the discovery within the required 30-day period. Consequently, pursuant to Civil Rule 198.2(c), the admissions became deemed as a matter of law. This constituted a major misstep by the defendants’ counsel. By failing to specifically object to the discovery, the defendants lost their right to object to the city’s discovery. The deemed admissions in effect meant that the defendants would be going forward with one arm tied behind their backs.
The city then filed a motion to compel discovery, which Judge Sparkman granted, but Maldonado and Contreras failed to meet the court-ordered deadline. Maldonado’s attorney, likely in an attempt to wiggle out of his client’s discovery problems, then filed a petition for writ of mandamus in the Fort Worth Court of Appeals, alleging that the trial judge erred in treating the case as a civil, rather than criminal, contempt. The idea was that if the case were not civil in nature, then the civil discovery issues would be moot.
It soon became clear that the appellate court was not going to render a decision prior to the July trial date. With the fundamental nature of this case still in question, the city opted to postpone the trial until after the Fort Worth Court of Appeals denied Maldonado’s petition for mandamus and his motion for rehearing.
Once the appellate issue was resolved, the city began its downhill run. We drafted a second motion to compel discovery and we anticipated a November trial setting. In early October 2009, the city received a pleasant surprise: Maldonado accepted a nine-year plea deal on a pending felony, delivery of a controlled substance. He was no longer a threat to the community.
The city turned all of its energies toward Israel Contreras. We filed a motion for sanctions for abuse of the discovery process related to the defendant’s failure to answer any discovery, and on October 13, Judge Barney Fudge granted the city’s request for sanctions. Contreras was then prohibited from offering any evidence or defenses at trial that would have been responsive to the tendered discovery requests. Coupled with the deemed admissions, Contreras’ prospects at trial looked bleak. The city asked that the case be set for a bench trial, and the defendant did not request a jury trial. Trial was set for November 30.
Considering how long it took to get there, the trial itself was uneventful. Contreras began by asking for court-appointed counsel. We cited authority that a trial judge, even in a criminal case, has discretion to deny a defendant’s request for court-appointed counsel on the eve of trial. Judge Fudge denied Contreras’ motion for counsel and ordered the trial to proceed.
Three witnesses took the stand: Officers Leavelle and Beesinger testified as to the events they observed on September 8, 2008, and Sergeant Charles Eipper, the head of the gang task force, testified as an expert witness concerning the Varrio Carnales street gang and Israel Contreras’ position as a high-level member. The cross-examination of the three officers was minimal. The proceedings ended when the deemed admissions were read into the court’s record. After closing arguments, Judge Fudge found Contreras in contempt of court on all eight violations. He then retired to consider punishment.
We asked for the maximum 30 days and $10,000 fine per violation as well as for attorney’s fees. The city additionally asked that the court stack the sentences.2 Judge Fudge ruled that Contreras would receive 30 days per violation, to run consecutively, and would be fined $1,000 per violation, plus $5,000 in attorney’s fees. (Should Contreras come into money in the future, the city will attempt to collect.) We were very pleased at the 240 days’ jail time and $13,000 in fines and attorney’s fees.
These first test cases allowed the city to evaluate the usefulness of the gang injunction civil contempt statute. Although the cases did not proceed as quickly as we first anticipated, creating the documents and other forms will greatly assist in future contempt proceedings, and familiarity with the procedures will likely result in quicker turnarounds in the future. Injunction violations continue to occur in Wichita Falls, and it is likely that Contreras and Maldonado will continue to be problems for local law enforcement upon their release.
That said, the gang injunctions and related litigation and contempt proceedings have been successful. Gang activity has been reduced by approximately 18 percent, and gang members are not the brazen band of thugs that once terrorized the community. They are more timid in public and are forced to operate much more in the shadows because they can no longer gather openly or travel together in the safety zone. This disruption greatly affects their ability to utilize the gang’s main asset: intimidation through numbers. An unforeseen benefit has recently materialized in that the local gangs are finding it more difficult to recruit new members—law enforcement’s actions seem to be adversely affecting the gang’s coolness factor.
The success of Contreras’ case means that the city of Wichita Falls has another tool in its arsenal in its fight against criminal street gangs. Additionally, a message was sent to the gangs that Wichita Falls will continue to proactively fight against gang crime. This city will not tolerate criminal street gangs.
1 Penal Code §71.021.
2 In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997).