Justice Delayed: 20 years later, Weslaco man to serve less than year of 12-year sentence

EDINBURG — A Weslaco man sentenced to 12 years in prison more than 20 years ago will most likely serve less than 200 days as a result of an internal error by the state, his attorney O. Rene Flores said.

Jose Andres De La Rosa, 44, was sentenced to 12 years in prison in connection with a possession of marijuana charge on April 8, 1994, but he was granted bond pending an appeal of the conviction, according to court records.

More than 18 months later, on Sept. 14, 1995, the Thirteenth Court of Appeals affirmed the trial court’s decision and ordered De La Rosa to serve the 12 years in prison.

But nobody told De La Rosa, and he lived under the assumption he had won his appeal.

“In this day and age with the population the way it is, and the reliance on computers, and the reliance on digital filing, it’s interesting and surprising that something like this could have slipped through the cracks,” Flores said. “But I don’t know how else to explain it.”

On March 26, 1996, the appeals court issued a mandate ordering the trial court to execute the 12-year-prison sentence, court records show.

Flores said De La Rosa’s active warrant appeared in the state system during a traffic stop early this year.

“When I first got the case and reviewed and came to understand what the facts were, I had never heard of this happening,” Flores said. “You have 20-something years go by and all of a sudden you get arrested for what (my client) understood was a dismissal.”

Flores said De La Rosa, who never moved away or hid from law enforcement, was under the impression his appeal had been successful and the charge had been dismissed.

De La Rosa said he did not hear from his appeals attorney Arturo Saenz, nor anyone else at the state court level, of the appeals court’s decision.

In a signed affidavit, Saenz admitted he had no knowledge of whether or not Abel Toscano, De La Rosa’s trial lawyer who died in 2005, had informed De La Rosa of the mandate issued by the appeals court, according to court documents.

“I was not involved with the appeal other than signing a motion for rehearing on behalf of Mr. Toscano. I don’t recall ever meeting or calling applicant,” the affidavit states.

Flores said not only did his appeals lawyer not notify De La Rosa, but neither did the bondsman responsible for De La Rosa’s bond, which remains active to this day.

“You still have a scenario where the client himself was never advised that he had lost his appeal, and we know that not only from his testimony but we also know that because the DA’s office never filed any motion to surrender his bond. There wasn’t any indication that the bondsman himself was ever notified that the mandate had been issued, and he had lost the appeal,” Flores said.

The owner of Liberty Bail Bonds, Javier Morales, also said he never received word about De La Rosa’s rejected appeal.

“He can testify that this bond was never surrendered; nor was bond forfeiture action ever initiated by the Hidalgo County District Attorney’s Office,” court records state.

De La Rosa, who is self-employed and runs his own construction company, has been in custody since his arrest earlier this year on the active warrant in connection with the marijuana conviction, Flores said.

Flores said De La Rosa had numerous “encounters” with law enforcement when a background check would have been initiated. Specifically, he was stopped in March 2011.

“He was pulled over for speeding in the state of Mississippi on his way back from North Carolina where he was visiting family. They pulled him over for speeding, they did a check, and come to find out, they think he has an active warrant out of Texas,” Flores said. “They call Texas, and Texas says there’s no active warrant, so they release him. He gets released to immigration because of his resident alien status. They came to understand he had been incarcerated, so typically immigration will come and investigate, but in that instance he was released.”

Flores, who was appointed to the case along with co-counsel Chris R. Brasure in March of this year, said he believes the court of criminal appeals will agree with the recommendation of the trial court, which is to grant the relief sought by De La Rosa.

“The state in their response has conceded, which is to say, they agree they can’t explain it,” Flores said. “They agree he had no notice, they agree that due to the several different exposures to law enforcement, they must concede there was no active warrant, and then so the only thing that can be surmised is over the several years there were multiple failures on the part of the government, whether it was the clerk’s office, or DA’s office, or sheriff’s department, no one really knows, and to be honest with you I don’t care.”

Flores said he expects the criminal court of appeals to grant relief by the end of July. If that happens, De La Rosa would have served less than 200 days in custody on a 12-year-sentence.