Case Summary - Mark De La Paz v. State

This case arose out of the Dallas County “fake drug scandal” where De La Paz was ultimately charged with tampering with physical evidence for knowingly making a false statement in an offense report and aggravated perjury for making those same false statements under oath. Specifically, De La Paz’s conduct flowed from his involvement in the wrongful arrest of Jose Vega. Roberto Gonzalez and De La Paz’s confidential informant, Daniel Alonso, manufactured twenty-two, one-kilo packages of pool chalk and then planted them in a Cadillac parked in a garage where Jose Vega worked.

The next day, Gonzalez and Alonso met with De La Paz and another officer to arrange a “buy-bust” deal. During the deal De La Paz acted as “moving surveillance”. Gonzalez and Alonso drove to the garage. Alonso got out and went back into the garage where Vega was working. He later walked back out. At the meet-up place after the deal, Alonso gave De La Paz two of the fake kilos. De La Paz called in a report that Alonso had just purchased two kilos and that there were more in a Cadillac parked outside the garage.

Both in his offense report, and under oath at his previous trial, De La Paz testified that he and his partner drove by the garage and observed Alonso come in contact with Vega. No one else witnessed the contact. When the case came under scrutiny, De La Paz asked his partner to lie that they had actually seen the contact.

De La Paz argued at trial that he had not lied because he’d actually seen the contact, and presented a demonstration to show that his angle was different than the angle of the surveillance camera. However, the State, on rebuttal, introduced evidence of two other “buy-bust” deals that De La Paz had participated in as extraneous offense evidence to rebut the defensive theory that everyone else was lying and De La Paz was telling the truth. This other evidence demonstrated that De La Paz had previously said he’d seen an exchange or contact between the informant and the subject under investigation. The argued that De La Paz had lied in each of these instances.

The court of appeals reversed the tampering case and the perjury case because the extraneous offense evidence was not relevant to a fact of consequence. (Here are links to the court of appeals case info for the tampering and perjury cases.) The court of appeals held that De La Paz only asserted that he had seen the contact, not that others were lying when they said they did not.

Judge Cochran writing for an ostensibly unanimous court (Presiding Judge Keller did not participate), reversed the court of appeals in both the tampering and perjury cases. [Here are links to the CCA case info on the tampering and perjury cases.] As in Bass v. State, the defense had opened the door to the admission of the extraneous offense testimony in opening statement by attacking De La Paz’s partner, one of the State’s star witnesses. While Herrera himself testified that he was cooperating with police in the hopes of getting a lighter sentence, Appellant also directly accused Herrera and Vega of being liars during his own cross-examination. Because reasonable people could disagree as to whether the defendant opened the door or the State did, the trial court did not err in admitting the evidence.

Moreover, Wigmore’s “doctrine of chances” also provided a theory of admissibility. Highly unusual events are unlikely to repeat themselves. De La Paz had reported on three separate occasions that he saw what no one else saw decreases the likelihood that De La Paz saw any such drug deal.

[Did it just become easier to impeach police officers with their prior cases?]

Finally, the admission of the evidence did not run afoul of Rule 403. While officer’s setting up innocent people carried with it the potential to influence the jury in an emotional way, the accuracy of De La Paz’s statements was a hotly contested issue. The extraneous acts had high probative value, and the circumstantial nature of proving the intent to defraud made the State’s need for the evidence great. [A mention of the limiting instruction as a way to minimize prejudice might have also been helpful here, but you can’t have everything.]