QUESTIONS LINGER: IS ERASMO ELIGIBLE TO HOLD OFFICE?

By Juan Montoya

Well, everyone knew that the Brownsville Independent School District would have to confront the issue sooner or later.

Now, with the election victory of Erasmo Castro as self-described patient resource specialist and Head Cheeze of Cheezmeh, the issue of his felony conviction has come to the fore. Castro beat out incumbent trustee Carlos Elizondo and former trustee Otis Powers and incumbent Carlos Elizondo for the Position 2 seat on the BISD board. The board is scheduled to canvass the vote next Thursday and administer the oath of office to Castro, Drue Brown and Prisci Roca Tipton.

But now some of these candidates' supporters are saying that the BISD failed to do its due diligence to verify that what Castro swore under oath – that he had not been finally convicted of a felony for which he had not been pardoned or had his full rights of citizenship restored by other official action – was true and correct. (See graphic top right. Click to enlarge.)

The only mention of that issue during the election campaign was in an anonymous hoja suelta, saying he was a convicted felon. (Right)

A cursory Google search under his name – Erasmo Castro Dragustinovis – shows that he was convicted on two counts of forgery, adult felonies, in 1994.

Further, a search of the court records shows that he was sentenced to the Texas Department of Corrections to concurrent five-year terms on the convictions which were modified to five years probation. The docket sheet shows that he never complied satisfactorily with the probation. Nor was there ever an expunction of the convictions granted by any court, records show.

Way back in 2015 when this issue first came up, we ambled over to the Cameron County District Clerk's Office and had Eriz Garza look for the case file (94-CR)75-B. He found it in the county warehouse and scanned all of it, including the case docket for us. One year later, another public information request was done for another person and the file was again reproduced.

What we found – in a nutshell – was that after his conviction on two counts of forgery before then-Judge Robert Garza, his lawyer, Angel Castro, filed a motion for reconsideration of the sentence and asked for deferred adjudication where his conviction would be erased if he complied with the conditions of probation imposed by the court. At the time, Cameron County District Attorney Luis V. Saenz filed a motion opposing the deferment but his motion was denied by the court.

Ironically, Saenz endorsed Castro in this BISD election. (Right)

Nonetheless, Garza granted it and Castro was off on his merry way promising not to sin again and to comply with probation. But the last entry in the court docket copies that we – and the other person who requested a copy of the entire file – was an order signed by Judge Arturo Nelson in the 138th District Court "unsatisfactorily discharging defendant from probation."

It stands to reason then, to our viewpoint, that since Castro did not comply wiht the conditions of his probation and was "unsatisfactorily" discharged from probation, then the conviction still stands and Castro cannot possibly hold a public office. Or can he? Let's take a stroll down memory lane.

On January 12, 1994, Erasmo Castro was indicted by a Cameron County grand jury on two charges of forgery.

The charges involved a friend signing over a car to keep it from going to his wife in a divorce and then Castro forging a Brownsville Police Department officer signature to have it released to him from the Cardenas Motor impound lot after it had been seized by police.

According to the docket sheet, Castro waived a jury trial and was convicted in a bench trial and – after a pre-sentence investigation report was considered by the court – sentenced on April 28, 1994 to 10 years in the Texas Department of Corrections probated to five years by Judge Robert Garza in the 138th District Court with the
usual number of restrictions, fines and court costs.

On May 13, 1994 – barely over two weeks after he was sentenced – his lawyer Angel Castro filed a petition in Garza's court asking that the judge reconsider the sentence and grant Castro deferred adjudication.

On June 3, Garza heard the motion, denied the state's objection (by  Saenz) to reconsider the sentence, granted deferred adjudication – and signed Castro's petition on June 22 with the same conditions of probation for five years.

After that, Castro's conviction would be erased from his record and his full rights restored, including running for office.

The deferred adjudication order included the former restrictions and a fine of $1,000 in equal monthly installments, $500 in restitution to Petra Mancillas (the owner of the car) at $10 per month, court costs at $10 per month, $25 in monthly probation fees, a one-time $50 CrimeStoppers fee within six months, $350 for the pre-sentence investigation, at $10 a month, and 350 hours of community service.

On June 15, Garza signed the order denying the DA's objections. On June 22, he signed the order for deferred adjudication.

Castro asked and was allowed his request that his probation be removed to Titus County ( Mt. Pleasant, Texas). If he satisfied all the requirements of Garza's assessed five-year probationary period, the sentence would be deferred.

Then a flurry of events occurred. The state filed a Motion for Adjudication of Guilt against Castro and the Garza ordered both the state and the defendant to a hearing to show cause for the motion on March 22, 1999.

On March 11, 11 days before the hearing where the state's motion to Adjudicate Guilt was to be heard, an assistant district attorney wrote the court that Castro "has violated the conditions of said probation since it was granted"...and was in arrears $581.38 of the $1,000 fine, $875 of the $1,500 probation fees, $310 of the $500 in restitution to the victim, and $85 on the $350 pre-sentence investigation fee.

The Asst. DA also wrote the court that he had performed only 214 of the court-ordered 350 hours of community service. She asked that the court to revoke his probation.

When Castro failed to appear Garza ordered that a warrant for his arrest be issued and that a $500,000 bond be placed upon him at the time of his arrest.

The docket's next entry appears on February 7, 2008 – eight years later – when now-138th District Judge Arturo Nelson issued an order to the state to show cause why the case should not be dismissed for want of prosecution and set the date of the hearing for March 12, 2008.

On March 3, 2008, Delia Fierro, a community supervision officer, wrote Nelson that Titus County had accepted Castro for supervision on November 14,1994 and that he was employed, sending payments and complying with his probation. However, Fierro wrote, on Aug. 16, 1995, "he was charged with fraud, a charge that was later dropped."

She also said that a TCIC/NCIC record check on September 2007, revealed that the defendant "has been arrested five (5) other times. He was charged with thee (3) times with Theft by Check, of which two counts were dismissed, and he was convicted on the third of two (2) counts and ordered to pay $167 and $204 in court costs; and restitution in the amount os $23.31 and $47.43.

On October 19, 1997, he was arrested and charged with Hindering Secured Creditors in Mount Pleasant, Texas. These charges were later dismissed. On May 29, he was arrested by the Camp County Sheriff's Office and charged with Forgery; these charges were dismissed on April 12, 2007.

On September 22, 1998, courtesy supervision was rejected by Titus County, after the defendant failed to report April, July, August, and September 1988. "

The defendant's whereabouts shave been unknown since then. Attempts have been made to contact defendant at the last known address, to no avail."

The docket indicates that the hearing was reset for March 28 when the state's Motion to Adjudicate was dismissed with no objection from the the DA's office headed by Armando Villalobos and the warrant was recalled.

The motion from the state for an Order Unsatisfactorily Discharging Defendant From Probation was denied and signed by Nelson on March 22, 2008 and the case was closed.

Castro' critics say that the unsatisfactory order means his felony conviction stands and he cannot hold public office. They say that Garza erred in reconsidering Castro's sentence and granting deferred adjudication since the court had no further jurisdiction on his case.

They claim that Garza could no longer correct the sentence because "A trial court has inherent power to correct, modify, vacate, or amend its own rulings, and, as long as it does not by its ruling divest itself of jurisdiction or exceed a statutory time limit, it can simply change its mind on a ruling."

An appeals court in Riles v. State, 216 S.W.3d 836 (2006), quotes precedent that a court is within its authority to change a sentence "only a few moments after it had initially sentenced
defendant and before it had adjourned for day," not two weeks later. Castro, his opponents say, could have moved for a new trial or appealed his conviction.

The Texas Election code states that a person can hold public office only if they "have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities."

Some sources have told us that there were other documents – a letter from Garza to Nelson and an order by Nelson exonerating Castro – in the case file. District Clerk Garza did not find it in the case file he pulled from the warehouse and copied for us in 2015 or for the other person who asked for a true copy in 2016. Nor does it show up in the case docket. How can that be? If they exist, why aren't they in the case file or the docket entries?

Will it ultimately take a court to decide the legitimacy of his election win or his ability to take office? And will anybody raise the issue?