Many border drug smugglers avoid prison

HIDALGO and STARR COUNTIES – In two key counties, less than a quarter of the “high-threat criminals” arrested by Department of Public Safety troopers for felony drug offenses during the state’s border surge have been sent to prison, a KXAN investigation has found.

To gauge how these “high-threat criminal” arrests are prosecuted, KXAN reviewed 500 felony drug arrests made in Starr and Hidalgo counties, where the department's border operations are at their highest, between June 2014 — when the surge began — and September 2016.

Many of the felony drug arrests reviewed have yet to result in criminal cases being filed. But in those that have, records show 25 percent of the offenders have been sentenced to probation with no jail time.

High-threat criminals

For example, Rolando Garcia of Roma has been granted probation twice since the surge began. He was arrested in Starr County for possession of 50 to 2,000 pounds of marijuana in September 2014. The charge is a second-degree felony that carries a punishment range of 2 to 20 years in prison.

Court records show he pleaded guilty and received five years of probation. A year later, in September 2015, records show a game warden stopped Garcia while he was pulling a small fishing boat and trailer. When state troopers came to assist, they discovered 240 pounds of marijuana hidden in the boat. Even though it was the second time Garcia had been charged with the same second-degree felony, his second case was dismissed, and his probation in the first case was simply extended for two years.

Then there’s Mary Louise Garcia of San Juan, who was stopped by a state trooper for speeding in Hidalgo County in July 2014. According to the offense report, the trooper observed many square bundles wrapped in brown tape in the back of her car, which turned out to be 638 pounds of marijuana. Garcia pleaded guilty and was sentenced to 10 years of probation.

Hidalgo County District Attorney Ricardo Rodriguez said his office considers each case individually and first determines whether someone is a dealer or a user — and if they are worthy of getting help under community supervision.

“We look at every case differently,” Rodriguez said. “We look at all the facts and evidence that we have. Those cases that we feel that should be given prison time, we give them prison time. Or if we feel that it's a case where they can be given some kind of community supervision, heavily imposed conditions on them, where they can go back into society and function and not pick up any other offenses again, we take that into consideration,” Rodriguez explained.

Rodriguez also said that when prosecutors know someone is actually working for the cartels, they treat the case much differently than cases where someone is simply getting paid to carry a load of marijuana from one place to another.

When asked about KXAN's analysis of arrest outcomes, DPS replied in a statement, “In terms of your observations about court cases, the prosecution and final disposition of cases is not decided by law enforcement.”

Breaking down the sentences

In about 13 percent of the cases KXAN reviewed, the defendants were sentenced to some jail time along with probation. Twenty percent were sentenced to jail time or given credit for jail time served prior to conviction. And another 20 percent received prison sentences, all in Hidalgo County.

“When it merits, we'll send them off to prison,” said Rodriguez. “And those that we feel can go back into society and function again and not be a threat to society, then we'll offer them an opportunity to not go to prison.”

KXAN discovered some of the cases reviewed were dismissed because the defendants pleaded guilty in other criminal cases. But others were dismissed “in the interest of justice” or due to “lack of probable cause” to search the defendant or their vehicle.

Take Oscar Lopez, who was stopped by a DPS trooper in March 2015 in Starr County, because the trooper said he was driving too close to oncoming traffic. The dashboard camera video shows the trooper searching Lopez's car while a second trooper searches through Lopez’s pockets and finds a baggie with what he says appears to be a small amount of cocaine in it. He handcuffs Lopez and places him under arrest on suspicion of felony drug possession.

In the dash camera audio during Lopez’s arrest, troopers can be heard laughing about the small amount of the drug.

“Dude, I can’t even see it there,” one trooper says. “It probably won’t even weigh.”

The other responds that Lopez “probably won’t even go to jail for it.”

Prosecutors eventually filed a motion to dismiss Lopez's case due to “lack of probable cause to search” the suspect. A judge signed the motion, and Lopez was released.

Some of the cases reviewed were also dismissed because the defendant completed a “pre-trial diversion program” that allows them to avoid prosecution after going through a period of supervision and receiving services such as counseling. Pre-trial diversion is not usually provided as an option for offenders with prior first- or second-degree felonies.

As of mid-October about 23 percent of the cases reviewed were still pending in court.

Read more about Texas border policy here:

• If President-elect Donald Trump delivers on his promise to dramatically beef up security on the U.S.-Mexico border, leading Texas lawmakers say they might quit spending so much state tax money on it.
• Under pressure from the United States, Mexico has tried to cut down the flow of Central American immigrants passing through on their way to the southern U.S. border.