Fajita case seeks appeal; Man claims he received ineffective counsel

December 20, 2018

A former Cameron County employee serving 50 years in prison for stealing more than $1.2 million worth of fajitas during a nine-year period has appealed his sentence.

Gilberto Escamilla, 53, pleaded guilty on April 20 to theft by a public servant and visiting State District Judge J. Manuel Bañales sentenced him to five decades in prison for the theft that totaled $1,251,578.

The Cameron County District Attorney’s Office Special Investigatoins Unit arrested Escamilla in 2017 after a driver from Labatt Food Service in Harlingen called the Darrel B. Hester Juvenile Detention Center to let the employees know that their 800-pound delivery of fajitas arrived. Fajitas are not on the menu at the detention center.

Defense attorney Ed Stapleton, who is representing Escamilla, filed the appeal on Monday.

Escamilla claims that he received ineffective assistance of counsel from his trial lawyer, Gustavo Elizondo.

"(Escamilla) urges that no trial strategy existed to support the limitations his trial counsel placed on investigating and presenting mitigation evidence at his sentencing hearing," the appeal states. "Attorney Fred Kowalski testified as an expert and established the standard that even when the client resisted exposing his friends and family to the trial process, it is incumbent upon the lawyer to insist that a mitigation case be presented."

Elizondo never presented character witness testimony at the sentencing hearing at Escamilla’s request, and during a motion for a new trial 12 family members and friends testified on Escamilla’s half, telling Bañales that he was a man of good character.

"None of the testifying witnesses were contacted by (Escamilla’s) trial counsel prior to sentencing hearing although being available at all times," the appeal states.

The only witness who testified at his sentencing hearing was his mother, Petra Escamilla, who asked Bañales to have mercy on her son, whom she described as a good man and father, though she did say her son’s arrest blindsided her.

"He has asked for forgiveness more than a thousand times," she said during that hearing.

Escamilla also complains that a Memorandum in Mitigation of Punishment Elizondo filed in an attempt to persuade Bañales to consider sentencing the man to the lower end of the punishment range didn’t make it to the judge before he sentenced Escamilla because of e-filing logistics in Cameron County, according to the appeal.

He also complains that Elizondo and his law partner Reynaldo G. (Trey) Garza, who advised Elizondo on the case, which was Elizondo’s first first-degree felony case, failed to adequately research Bañales when Elizondo advised Escamilla to let Bañales sentence him instead of a jury.

Elizondo’s reasoning is because he secured a favorable bond ruling from Bañales early on in the case and because Garza obtained favorable outcomes in the past in two cases handled by Bañales .

"Importantly, Mr. Elizondo and Mr. Garza each individually expressed their opinion as to the inadequacy of their investigation of Judge Banales prior to advising (Escamilla) to waive his right to a jury trial and jury-assessed punishment," the appeal states.

That occurred during the unsuccesful motion for a new trial.

"Mr. Elizondo relied heavily on his law partners experience to inform (Escamilla) to waive his right to a jury trial and jury-assessed punishment. Mr. Elizondo’s advice was deficient because of his failure to conduct an investigation of Judge Banales’ prior rulings and general reputation on sentencing. But for his attorney’s bad advice, he would not have waived his right to a jury trial and jury-assessed punishment," the appeal states.

Bañales is known throughout Texas for handing down stiff sentences, according to testimony during the motion for a new trial.

"You needed to know that you were putting your sentence in the hands of someone who has been described by Texas Monthly as the hardest sentencing Judge in the State," Garza said at the time. "If you had known that, I don’t think you would have chosen the Judge. And I’m sorry. I feel bad because while I didn’t advise you, I didn’t advise Mr. Elizondo, and I don’t know if Mr. Elizondo ever told you that."

Garza testified during that hearing that after the sentencing he later conducted a Google search and the first result was the Texas Monthly article he referenced.

Escamilla also contends that Associate Judge Louis Sorola did not have the authority to accept his waiver of a jury trial.

"The order conferring authority on Judge Sorola is signed only by Judge (Benjamin) Euresti as presiding judge. There is no showing in the order that two-third of the judges required in the order voted on the order, nor are there any other judge’s signatures that would show acceptance of Judge Sorola as associate judge," according to the appeal. "Therefore, the Order of Referral fails to give authority to Judge Sorola in this case. Since Judge Sorola was unauthorized to preside over the merits of Mr. Escamilla’s case, Judge Sorola’s acceptance and approval of Appellant’s written waiver of his right to have his case tried before a jury is null and void."

Euresti recused himself from the case.

Furthermore, Escamilla argues that Bañales never entered an order of referral into the record specifying his approval of an associate judge in the case.

"Therefore, Judge Sorola lacked authority to preside over any matter once Judge Banales was assigned as the presiding judge in the case," according to the appeal.

He is asking for his sentence to be reversed and that the 13th Court of Appeals grant him a new trial.

Escamilla is currently being held in the Texas Department of Criminal Justice Garza West unit in Beeville and his projected release date is in 2041, though he will be eligible for parole in 2024, prison records show. If he were to serve his entire sentence, Escamilla would remain incarcerated until 2068.


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