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March-April 2011

Playing chicken with a snake in the grass

How Ector County investigators and prosecutors overcame many obstacles and won a stiff sentence against a longtime domestic abuser

Justin Cunningham

Assistant District Attorney in Ector County

On April 3, 2010, Odessa Police Department officers responded to a 911 call. The victim, Sandy Galindo Flores, stated that her boyfriend, Zackariah Jones, was beating her. When officers arrived, Jones was in their house, claiming that there were no problems and that he was the only one inside. However, as officers did a sweep of the house, they found Sandy in a back bedroom lying on a bed with the covers over her head.

    Once her boyfriend was arrested and on his way to jail—Jones had outstanding warrants—Sandy told officers what had happened. Jones had been drinking and accused her of “messing around” with other men. When Sandy told him that she was not messing around, the defendant began to punch her in the face, leaving her with a knot on her head, a swollen black eye, and a busted lip. In addition to the outstanding warrant, the defendant was also charged with assault-family violence because at the time, Sandy lived with Jones in his house. She had no permanent address, though; she drifted among friends, relatives, hotels, and Jones’ place. After his arrest, Sandy told officers that she was likely going to her sister’s house.

    Once the defendant was booked into jail, the magistrate, at the police officers’ direction, issued an emergency protective order1 (EPO) on the court’s own motion. The defendant spent his 72-hour “cool off” period in jail and was personally served with a copy of the EPO, which he signed. It was also read to him in open court.

       The EPO was good for 31 days and prohibited Jones from going within 150 feet of wherever Sandy was, including her residence. The address listed as her residence in the protective order was her sister Becky Quiroz’s house, but Sandy had no real residence; she was (and is) a transient who drifts from place to place. It’s important to note that Sandy did not file the EPO herself or give Becky’s address as her own; the magistrate, on its own motion, entered the protective order on her behalf. This detail would become important later at trial.

    After the defendant was released from jail, EPO in hand, there was no contact between him and Sandy, at least initially. Within two weeks of beating Sandy and being served with the EPO, though, he called her. He apologized for hurting her and invited her over to his place. Soon thereafter, Sandy packed up her clothes and drifted to Jones’ house—in her mind, to stay. Sandy loved the defendant, but a week into her new living arrangement that love would change.

A second beating

During the evening hours of April 27, just a few weeks after Jones had beaten her, the defendant made a disturbing command to Sandy. He instructed her to have sex with his uncle and a friend that she did not even know. Jones made her take off her clothes, and when she protested, the beating, yet again, began. At first it was with his fists, but he soon switched to biting her on the arm and forehead. He bit her so hard on the forehead, in fact, that he left a bleeding imprint of his teeth. Dressed only in a shirt, Sandy ran out the door to the neighbors’ and frantically called 911. Officers arrived soon thereafter.

    Before officers could even talk to Jones, he yelled into the darkness, “Babe, I love you! Don’t—!” But before he could finish his plea to Sandy, officers detained him and put him in the back of a patrol unit. They found Sandy down the street, standing outside without pants, bleeding and crying uncontrollably. Paramedics were called to treat the bite on her head, but she refused treatment and responded reluctantly to officers’ questions about what happened. She declined to put anything in writing and refused to press charges. As one officer was speaking to Sandy, another was taking pictures of the bite marks, which would prove valuable in trial.

    At this point, officers were unaware of the active EPO in place to protect Sandy from the defendant. It was not until the officer who initiated the EPO after Jones’ first arrest for beating Sandy arrived that they were made aware of the EPO’s existence. Had he not recognized Jones and remembered the active EPO, officers would have likely charged the defendant with another misdemeanor assault family violence; after all, though Sandy was bleeding from the head, the wound did not rise to the level of serious bodily injury. Once the active EPO was confirmed through dispatch, the defendant was charged with the third-degree felony of violation of a protective order by assault.2

    After hearing from an officer that he was to be charged with a felony violation of a protective order, the defendant began yelling and screaming, “But she came to my house! How’s that on me?” He didn’t understand that although Sandy had come willingly to his house, he was prohibited from being within 150 feet of wherever she may be.

Tracking down a transient victim

When we initially received the case, it was clear in my mind that Sandy needed to be protected because she either couldn’t or wouldn’t protect herself. Additionally, we really wanted her to testify against the defendant. Although we had pictures of her injuries and a reluctant partial statement, Sandy’s own testimony would eliminate any Crawford objections. Plus, we wanted her in court to humanize the photos, appeal to the jury, and fill in the gaps of her reluctant statement the night of the assault. That said, I would have gone forward even if she didn’t want to be part of the trial. I was not going to sell out just because it would’ve been hard—Jones had had many breaks over his criminal history and didn’t deserve another.

     Our strong desire for Sandy to testify was also apparent to the defendant; he made several claims that we would be unable to find her and would be forced to dismiss his case. To further his claims, Jones, who was represented by a skilled and competent attorney, began a short-lived pro se writing campaign motioning the court for a speedy trial. He wanted a dismissal; in his mind, if the court granted his speedy trial motion, the case would be set for trial and we would be forced to dismiss it if we couldn’t find Sandy or if she refused to testify. Once the court set his case for trial (independent of and not as a result of the defendant’s motions, I might add), the defendant ceased his pro se writing campaign and deferred to his attorney for trial.

    I took a look into his criminal history, which includes 13 misdemeanors (multiple PO violation convictions as well as assault family violence convictions) and two prior sequential non-state jail felony (SJF) felony convictions (for possession of controlled substances). I knew that if I offered a reduced plea to assault-family violence, he would jump on it. He had pled guilty on assault cases in the past and typically received minimal punishment—a fine or a day or two in jail. But what he did to Sandy was different than what he had done to other women; he bit her in the face like an animal. Jones did not deserve a slap on the wrist, and Sandy deserved much better. I figured the only way to stop him from beating Sandy again, or any other woman for that matter, was to habitualize him to 25–99 years or life, which is what I did.3 Even facing habitual offender status, the defendant still seemed quite positive that we would be unable to find Sandy for trial and that we would be forced to dismiss his case.

    I should note that we did consider charging Jones with Continuous Family Violence under the new statute, but the defendant had already pled to the first assault-family violence case (wherein the EPO was put into place), so I had only one assault where jeopardy hadn’t attached. And by the time we tracked Sandy down and she told us of other assaults, we were a week from trial. She was also very fuzzy with time frames and remembering when the assaults happened, which would present a problem with a CFV case whose language requires proving assaults within a 12-month period.

    We desperately needed to track down Sandy; I challenged investigator Joe Commander to find her. Over the years, Commander has become quite skilled in locating people, especially people who do not want to be found. I gave him the little bit of contact information I had for Sandy and told him I needed her before trial. It took approximately four weeks for Commander to track her down. Sandy was a drifter who never stayed in one place too long. She would overstay her welcome with friends or relatives—not because of any fault of her own, but because she had no other place to go. When not staying with friends or relatives, Sandy would float from cheap motel to cheap motel until she ran out of money. She has no address, telephone number, cell phone number, Facebook page, etc. Even Sandy’s sister Becky, her only relative we have on file, could not provide Commander with any contact information. He went door to door and cheap motel to cheap motel looking for her and ended up back at Sandy’s sister’s house.

    Commander, being the investigator he is, questioned whether the Becky was covering for or hiding Sandy. Becky told him that Sandy comes and goes, that she never stays in one place too long, and that she doesn’t check in with relatives. Commander left a business card and told her to give it to Sandy if she saw her in the near future. Commander then returned to Becky’s house everyday, on the chance that Becky was not being truthful, until Sandy finally called our office after showing up at her sister’s house.

    But getting Sandy to come and talk with me was another challenge. Sandy thought we were luring her to our office so we could arrest her. She had run-ins with law enforcement in the past and seemed somewhat distrustful of coming in to the district attorney’s office. We assured her that we were not going to arrest her and that she didn’t have any warrants, and we set a time for her to come and meet with me in my office.

    Sandy made it clear to me that she did not want to testify against Jones. It was apparent to me that she loved him as much as she feared him. But at the same time, she did not want him to get away with what he did to her. I explained to Sandy that the defendant needed to be held accountable for what he did, and one way to hold him accountable would be a trial—a trial that was scheduled the very next week. Because I could see her hesitation with having to testify, I told her that we would strive toward him pleading guilty in exchange for a plea offer. However, the likelihood of a plea seemed doubtful at the time:  At our last pre-trial, Jones popped off in court that she wouldn’t show up to testify.

    At the conclusion of our meeting and after serving her with a subpoena, we asked for her telephone number and where she was living. She told me that she would call me the next day but refused to give us any contact information. Before she left, I stressed to her that what Jones did to her was not right and that I wanted him held accountable for his actions. I wanted her to know that someone cared about what happened to her and that Jones’s behavior was not normal or acceptable in our society. She seemed somewhat surprised that someone from our office cared and even more surprised when she left my office without being arrested. I had a feeling deep down that I would never see her again and that I would be forced to dismiss the case against Jones.

    Much to my surprise, Sandy called me the next day to inquire what was happening with her case. I informed her that it was likely heading toward trial but that she could call me the next day and we could update her as to what was going on. I told her that if the defendant insisted on a trial that she would have to testify against him. She promised me that she would do what was needed but that she hoped he would plead guilty. I asked her where she was living and once again she refused to tell. However, my office’s caller ID showed that she was calling from one of the local motels.

    The next day, she called again from that same motel. It was at this time, the Friday before the Tuesday trial date, when I told her that I needed her to be at the courthouse on Tuesday, ready to testify against Jones. She became incensed that he would not plead guilty for beating her, and she promised she would show up for the trial. After hanging up the phone with Sandy, I had a gut feeling that she would show up for trial, but I still worried up until the minute I stated, “Your Honor, the State calls Sandy Galindo Flores.”

At the conclusion of our meeting and after serving her with a subpoena, we asked for her telephone number and where she was living. She told me that she would call me the next day but refused to give us any contact information. Before she left, I stressed to her that what Jones did to her was not right and that I wanted him held accountable for his actions. I wanted her to know that someone cared about what happened to her and that Jones’s behavior was not normal or acceptable in our society. She seemed somewhat surprised that someone from our office cared and even more surprised when she left my office without being arrested. I had a feeling deep down that I would never see her again and that I would be forced to dismiss the case against Jones.

    Much to my surprise, Sandy called me the next day to inquire what was happening with her case. I informed her that it was likely heading toward trial but that she could call me the next day and we could update her as to what was going on. I told her that if the defendant insisted on a trial that she would have to testify against him. She promised me that she would do what was needed but that she hoped he would plead guilty. I asked her where she was living and once again she refused to tell. However, my office’s caller ID showed that she was calling from one of the local motels.

    The next day, she called again from that same motel. It was at this time, the Friday before the Tuesday trial date, when I told her that I needed her to be at the courthouse on Tuesday, ready to testify against Jones. She became incensed that he would not plead guilty for beating her, and she promised she would show up for the trial. After hanging up the phone with Sandy, I had a gut feeling that she would show up for trial, but I still worried up until the minute I stated, “Your Honor, the State calls Sandy Galindo Flores.”

    But getting Sandy to come and talk with me was another challenge. Sandy thought we were luring her to our office so we could arrest her. She had run-ins with law enforcement in the past and seemed somewhat distrustful of coming in to the district attorney’s office. We assured her that we were not going to arrest her and that she didn’t have any warrants, and we set a time for her to come and meet with me in my office.

    Sandy made it clear to me that she did not want to testify against Jones. It was apparent to me that she loved him as much as she feared him. But at the same time, she did not want him to get away with what he did to her. I explained to Sandy that the defendant needed to be held accountable for what he did, and one way to hold him accountable would be a trial—a trial that was scheduled the very next week. Because I could see her hesitation with having to testify, I told her that we would strive toward him pleading guilty in exchange for a plea offer. However, the likelihood of a plea seemed doubtful at the time:  At our last pre-trial, Jones popped off in court that she wouldn’t show up to testify.

    At the conclusion of our meeting and after serving her with a subpoena, we asked for her telephone number and where she was living. She told me that she would call me the next day but refused to give us any contact information. Before she left, I stressed to her that what Jones did to her was not right and that I wanted him held accountable for his actions. I wanted her to know that someone cared about what happened to her and that Jones’s behavior was not normal or acceptable in our society. She seemed somewhat surprised that someone from our office cared and even more surprised when she left my office without being arrested. I had a feeling deep down that I would never see her again and that I would be forced to dismiss the case against Jones.

    Much to my surprise, Sandy called me the next day to inquire what was happening with her case. I informed her that it was likely heading toward trial but that she could call me the next day and we could update her as to what was going on. I told her that if the defendant insisted on a trial that she would have to testify against him. She promised me that she would do what was needed but that she hoped he would plead guilty. I asked her where she was living and once again she refused to tell. However, my office’s caller ID showed that she was calling from one of the local motels.

    The next day, she called again from that same motel. It was at this time, the Friday before the Tuesday trial date, when I told her that I needed her to be at the courthouse on Tuesday, ready to testify against Jones. She became incensed that he would not plead guilty for beating her, and she promised she would show up for the trial. After hanging up the phone with Sandy, I had a gut feeling that she would show up for trial, but I still worried up until the minute I stated, “Your Honor, the State calls Sandy Galindo Flores.”

The trial

My biggest fear going into the trial, aside from Sandy not showing up, was the fact that Sandy went to the defendant’s house on her own—I thought that somehow a jury would punish her for making a poor decision that night. Even though Sandy did not initiate the EPO, she knew about it before going over to Jones’ house. Our focus from voir dire through closing was that society and the criminal justice system must protect those who are unable to protect themselves.

    During voir dire, I spent quite a bit of time discussing how an EPO works and how the victim and her aggressor cannot agree to ignore the EPO and reconcile. I stressed how EPOs are set up to protect vulnerable victims, victims who are unable or unwilling to protect themselves. A few venire members made statements that if a victim goes back to her aggressor than she was partly or wholly to blame for any injuries he might inflict. Although they agreed they could follow the law, I doubted their ability to be a strong punishment juror, which both Sandy and I needed, so I used my peremptory strikes on those panelists.

    Much to our relief, Sandy showed up the day of trial and testified. The evidence was clear, regardless of the fact that Sandy went to Jones’s house knowing about the active EPO, that the defendant was prohibited from being within 150 feet of her. Sandy’s testimony, along with that of the officer, demonstrated that the defendant apologetically invited Sandy over to his house, and when she refused his sexual commands, he bit her. The pictures admitted into evidence clearly showed Jones’ upper and lower teeth imprints on Sandy’s forehead and arm. She testified that but for the defendant’s invitation, she would not have been at his house that night, some 20 days after the EPO was entered.

    The defense’s case, as expected, was based on the fact that Sandy went to Jones’ house of her own volition. Jones also tried to establish that Sandy was living at the address in the EPO (that is, her sister Becky’s house) and that the defendant stayed away from that address. But in reality, Sandy did not initiate the EPO and was never given the opportunituy to tell the court where she had been living or where she was going to be living. Prior to the EPO, she had been living with the defendant at his house. The defense also attempted during cross examination of the officers to set up a self-defense claim, but that failed utterly when the officers testified there was no evidence of self-defense.

    The defendant chose not to testify, nor was his uncle (who was present at the second assault) willing to testify for him at trial.

    The jury was out two hours determining guilt or innocence. They sent out several notes that led us to believe that at least some of the jurors were having a hard time finding the defendant guilty because Sandy voluntarily went to his house. However, after being read back testimony of one of the officers, to whom the defendant admitted biting Sandy, they quickly found him guilty, and we shifted to the punishment phase.

Punishment

We introduced Jones’ 13 prior convictions spanning 20 years. At the time of trial, Jones was 40 years old. The majority of his adult life was spent serving time behind bars or committing crimes. Out of 13 prior convictions, only two were felonies; both were drug-related and provided the habitual enhancements paragraphs we proved up at during punishment. His misdemeanor convictions included assault-family violence, violations of protective orders, and criminal mischiefs targeted toward the protected persons in the protective orders he violated in the past. His misdemeanor convictions exhibited a pattern of violence against women and a disrespect for the law, a point we stressed to the jury.

    When the time came for recommending a sentence, I gave no number but told them to do what was in their hearts. I did not want to insult a jury that had just spent two hours in deliberations in the guilt or innocence phase of the trial. The defense asked for the minimum 25 years.

    After some 20 minutes, the jury returned a sentence of 80 years. In my opinion, Jones earned the hard sentence not because of his felony convictions but for the misdemeanor violation of a protective order and assault-family violence convictions.  (After trial, several jurors stated they had no problem giving him 80 years when they saw it was not his first offense against women.)

    Once the trial was over, I gave Sandy a hug and told her that the jury sentenced Jones to 80 years. She smiled with disbelief and asked if she could leave. After I told her to call me if she ever needed anything, she walked out of the courthouse. We, including her own sister, have not seen or heard from Sandy since the trial.

    In conclusion, Zackariah Jones was a prolific abuser who thumbed his nose at a court order and beat a woman he claimed to love—all culminating in an 80-year prison sentence. As a prosecutor, it would have been easy to blame Sandy for her injuries because she went to his house knowing his history of violence toward her, or even to reduce Jones’s case to a misdemeanor. But, at the end of the day, we as prosecutors must seek justice. We must protect those who are unable to protect themselves. That day, justice was served on Zackariah Jones.

Endnotes

1 Tex. Code Crim. Proc. art. 17.292.
2 Tex. Penal Code §25.07(g).
3 Tex. Penal Code §12.42(d).