EL PASO, Texas (KTSM) – County Attorney JoAnne Bernal’s office filed an Intent to Proceed in the case to remove duly elected District Attorney Yvonne Rosales Tuesday afternoon.

The County Attorney’s Office was tasked with deciding whether they would prosecute the case by presiding Judge Tryon Lewis from Odessa.

The Notice of Intent to Proceed requests the case be set for a status hearing to determine a trial date and enter a scheduling order for the case to proceed.

As KTSM reported, local defense Attorney Omar Carmona filed the initial petition for Rosales’ removal on August 24, a rare move designated to certain elected officials in Texas.

Texas Local Government Code is a vehicle to remove specific elected officials in the State who are not subject to recalls. The Government Code orders that the County Attorney ultimately be the office responsible for the civil case to remove an elected official.

The Court initially ordered Bernal’s office to file a notice of the State’s intent to prosecute the suit or a motion to dismiss it within ten days of the date Rosales was served with the citation — September 26. The County Attorney’s office then requested an extension to November 1.

ORIGINAL ALLEGATIONS

FILE: Omar Carmona files a petition for DA Rosales’ removal on August 24, 2022.

Gabaldon Case

Carmona’s petition cited several items, including what he called “unlawful actions” from Rosales. Among Carmona’s allegations included the mishandling of the State’s Case against Carmona’s client, Ivan Gabaldon, who was accused of murdering Juan Garcia Flores during an alleged paid sexual encounter in February 2021.

Gabaldon’s attorneys were seeking a speedy trial. After several prosecutorial changes at the DA’s office, they initially agreed to allow Gabaldon out on a personal recognizance bond while awaiting trial so the DA’s office would have additional time to prepare. When Judge Alyssa Perez denied extra time for the prosecution, Assistant District Attorney Curtis Cox informed the Court of the DA’s Office’s intention to refile the case, seeking the Death Penalty against Gabaldon.

Judge Perez ultimately dismissed the charges against Gabaldon, citing an ‘unjustifiable penalty’ and agreed with Carmona and co-counsel Denise Butterworth that prosecutors exhibited “vindictive actions” against their client.

 “I am very concerned and have been concerned for a while because of the lack of diligence that the state of Texas has the manner in which they’ve been handling, you all have been handling these cases,” Judge Perez said in her ruling in the Gabaldon case on December 14, 2021.

Curtis Cox is currently the lead prosecutor against the accused Walmart shooter.

Decline in Case Filings, Dismissals

According to Carmona’s peCarmona’sn Rosales’ firRosales’as District Attorney, she filed “approximate”y 60% fewer felony and misdemeanor assault cases against alleged abusers, despite an overall rise in family violence arrests within the City of El Paso.”

The Public Defender’s Defenders office filed more than a thousand petitions to dismiss cases under Texas Statute Code of Criminal Procedure 32.01, which makes a case in the pre-indictment stage eligible for dismissal if the District Attorney has not indicted the defendant within 180 days.

Assistant District Attorney Douglas Tiemann explained in interviews with KTSM that several factors played into the backlog of cases, including COVID. Tieman pointed to the period when the DIMS contract was not negotiated, which led to increased backlogs.

DIMS is a system through which law enforcement officers directly contact a prosecutor to move the case forward. It is only for some eligible misdemeanors and less serious felonies, and the person needs to be arrested on the spot of the incident. The DIMS program was reinstated in January 2022.

Tiemann tells KTSM the DA’s Office is actively working to remedy the DA’s backlog, working additional hours and weekends to help catch up.

Misuse of Public Funds

Carmona’s petition cited the potential misuCarmona’slic funds as an additional reason for removal. As KTSM previously reported, an expense of $2,600 in civil forfeiture funds was at the center of a Texas Ethics Commission hearing on November 30, 2021.

A county audit revealed that Rosales spent funds on items including children’s badges for “junior investigators,” a seal with the DA’s name on it, car magnets, and a logo with a lotus flower encircled with the DA’s name on it. The review also included other items, including pens, tote bags, and t-shirts.

At question was whether Rosales potentially violated the Texas Penal Code, which constitutes Abuse of Official Capacity by printing items that were considered potential campaign items with public funds.

Ultimately, the eight-person Texas Ethics Commission (TEC) issued a summary opinion alleging the purchase of some items with Rosales’ name prominently labeled.

“We note that each logo not only identifies the office but also prominently includes the name of we note that each logo not only identifies the office but also prominently includes the name of the current occupant of that office,” the summary opinion states. “This type of promotional item would lead one to believe that its purpose ‘was to support the incumbent,’ regardless of the timing.

During the December hearing, the TEC took no action on the inquiry, which would have made the summary opinion official after an anonymous individual abruptly withdrew their inquiry. Commissioners with the TEC said they intended to issue a generic opinion over their findings from the review.

Local attorney Roger Rodriguez represented Rosales’ interest in the TEC hearing.

Walmart Case

Carmona cites the July 1, 2022, gag order issued by Judge Sam Medrano in his petition for removal. However, since Carmona’s initial filing, there have been several developments.

Following a series of e-mails sent to the media by an individual purporting to be the family of slain Walmart victim Alexander Hoffmann, on August 4, local Attorney Justin Underwood was appointed to represent the family.

In the e-mails, the author attacked former Assistant District Attorney Amanda Enriquez, who is rumored to be eyeing a run at the DA’s seat in the next election. The author also attacked Judge Sam Medrano.

“In response to the statements made by Amanda Enríquez in the news articles on August 3 and 4, 2022, my family and I would like the media and the community to know she is using this case for political purposes. HOW DARE SHE,” the email stated, referring to Enriquez’s interview that aired on August 3 on KVIA.

The email calls Enriquez “unprofessional, inadequate and cold,” stating that Enriquez violated the gag order put in place by Judge Sam Medrano on July 1. 

Enriquez is not subject to the gag order because she is no longer a party to the case after leaving the DA’s office in December 2020.

Judge Medrano scheduled a hearing regarding the e-mails. However, before the hearing, District Attorney Rosales filed motions to remove Medrano as Judge, citing bias against the prosecution.

During Judge Medrano’s recusal hearing, the former lead prosecutor in the case, John Briggs, testified that he confronted the District Attorney regarding the Hoffmann e-mails, believing they may have come from someone inside the DA’s office. He went on to testify that he was fired from the DA’s office days later.

Ultimately, Judge Sid Harle case ruled against removing Judge Medrano from the Walmart case, allowing him to move forward with hearings.

In an Ad Litem report filed on October 6, 2022, Underwood alleges Rosales’ personal attorney, Roger Rodriguez, intimidated the Hoffmann family. Underwood’s report indicates that the Hoffmanns believed Rodriguez was an employee of the DA’s office or acting on her behalf.

His report also included several phone call recordings made by the Hoffmanns of conversations with Roger Rodriguez, who was unaware he was being recorded.

The DA’s office has been unable to publicly comment or refute Underwood’s report due to the gag order on the case.

A State’s Response to the Ad Litem Report cites bias in Underwood’s report but fails to refute its primary allegations. The State argues that the “affidavit signed by Wilhelm Alexander Hoffmann (the victim’s son) also identifies Anne Rodriguez present at Sanbourns, while in fact (based on information and belief) Wilhelm Alexander Hoffmann was not present at Sanbourns on August 23, 2022.”

The response indicates knowledge and the occurrence of the meeting between Rodriguez and the Hoffmanns on that date, not that the meeting never happened.

Judge Medrano has scheduled a hearing on November 30, 2022. It is unclear if any repercussions regarding the Hoffmann e-mails and potential violation of the gag order will be imposed.

What’s Next?

County Attorney Bernal’s Intent to Proceed indicates that she will now be the primary office tasked with prosecuting the case, thus removing Attorney Omar Carmona from the process.

Carmona’s wife is a staff member in the County Attorney’s office and formerly worked under District Attorney Jaime Esparza until his departure in December 2020. Rosales previously argued Carmona had a personal vendetta against her after she failed to retain his wife as part of her staff when she took office.

Since initially filed, Rosales retained several attorneys to represent her in her removal proceedings, including local defense attorneys Luis Yañez, Francisco Macias, and David Chavez.

In a filing on October 6, former Ellis County District and County Attorney Patrick M. Wilson joined Rosales’ defense. Wilson faced his own removal petition in 2018, which was ultimately unsuccessful. He did not seek a second term.

In September, Rosales asked the County Commissioners Court to be reimbursed for legal funds to defend herself against the removal petition. After much discussion, her request was denied.

“There is no protection for the defense of the frivolous suit. The respondent must bare the burden of litigation. The financial burden to respond to frivolous motions places the respondent at a disadvantage,” Rosales told Commissioners Court.

Despite hearing her arguments, the county commissioners voted against providing the funds for Rosales solely based on the fact that she is not a county employee, and according to Commissioner David Stout, he did not find her evidence to be sufficient.

Despite the vote against it, a stipulation was added that if the case was to be dismissed or if the DA was to win at trial, she could return to Commissioners Court and request reimbursement.

Rosales was elected in the November 2020 election when she ran unopposed in the General Election. In the March primaries earlier in the year, she was one of four candidates vying to fill Jaime Esparza’s vacated seat after he opted to retire following 27 years of service.

The election went to a runoff between her and former Assistant District Attorney James Montoya. Rosales won that race by a slim 1,205 vote margin and was sworn into office on January 1, 2021 — just months before COVID shut down much of the city, including the El Paso County Courthouse. Her current term ends on December 31, 2024.