Judge Angie Barill's Void Order of Expunction/Joe Spencer/Alberto Ocegueda

Note: I will get back to our Pulitzer prize winning journalist Ashlie Hardway later. There is a lot happening regarding Judge Barill who granted the original order of expunction that you need to know about. What follows is a letter I wrote and sent to her yesterday. As Judge Barill is no longer the judge on the case, this is not an ex-parte communication. Read the letter, as it will explain many things about this case. It will especially make clear what Ashlie Hardway wilfully failed to tell you, what Spencer did, what the judge did and how they all reek. It will also help you to understand what may happen in the future. Of course your comments are always appreciated.


Theresa Caballero
Attorney at Law
300 E. Main St., Suite 1136
El Paso, Texas 79901
915. 565.3550
Fax 915.562.5250
August 19, 2008

The Honorable Angie Juarez Barill
346th Judicial District Court
500 E. San Antonio St.
El Paso, TX 79901

Re: Void Expunction Order and Attorney Joe Aureliano Spencer.

Dear Judge Barill:

On May 22, 2007, attorney Joe Spencer filed a Petition for Expunction on behalf of his client Alberto Ocegueda, aka Osegueda. Mr. Ocegueda had been arrested for aggravated sexual assault of a child in the fall of 2006. The petition was filed in your court when you were the presiding judge. Based on knowledge and belief you signed the order granting the petition sometime in August 2007.

Attorney Spencer had represented Mr. Ocegueda on the underlying aggravated sexual assault of a child charges and was therefore aware of all steps taken or not taken by the special prosecutor in his client’s case. After the special prosecutor Chris Bradley declined Ocegeuda’s case, attorney Spencer went on to prepare, file and litigate a Petition for Expunction. In his petition for expunction, Mr. Spencer stated that Mr. Ocegueda’s case had been brought forward by an “information.” There was never an information in Mr. Ocegueda’s case. Attorney Spencer also stated in his petition that Mr. Ocegueda’s case had been “dismissed.” That is also not true. His case had been declined. He also “failed to disclose facts to your tribunal when disclosure was necessary to avoid assisting a criminal or fraudulent act and, as this was an ex parte proceeding, he failed to disclose to your tribunal unprivileged facts which should have been known by you for you to make an informed decision.” (State Bar Rule 3.03). Attorney Spencer failed to state in his petition that the statute of limitations had not yet run in his client’s case. Mr. Spencer presented these false pleadings to his client Ocegueda to sign under penalty of perjury. Mr. Ocegueda signed to the truth of the above even though it was not true.

The Petition was then filed in your court. When attorneys file original petitions, they do not know what the cause number will be or what court it will land in so they leave those items blank and fill them in at the Clerk’s office once a court and a case number have been assigned. What is interesting and I have yet to get an explanation for this troublesome question, is that my copy of Ocegeuda’s original petition for expunction that Spencer filed shows that your court number, the 346th, appears to have been typed into the style of the case before it was filed . However the cause number was handwritten in. How could that be? As you are also aware, there is a huge public corruption FBI investigation into forum fixing, that is, attorneys fixing matters so that their cases fall into certain friendly courts. Could you please shed light on this question? I have enclosed a copy of the Spencer’s original petition for your review.

Furthermore, when it came to my attention that you had ordered the records in this case destroyed, Stuart Leeds and I became concerned. We knew that based on the information we had that this could not have been done in compliance with the law. We also came to find out that many valuable, governmental records regarding allegations of the rape of a six year old female child had been destroyed as result of your order and were being kept from the public. Relying on case law and statutory law, Mr. Leeds then filed a Petition to undo your order of expunction of Ocegueda’s records. Mr. Leeds’ petition fell in your court and your court set it for hearing on April 30, 2008. Since Attorney Leeds was seeking the reinstatement of records you had previously ordered law enforcement to destroy, he served all of those law enforcement agencies with notice about the hearing. Not one of them opposed his petition.

Anticipating that standing might be an issue, we subpoenaed a witness to prove standing, Channel 7 reporter Ashlie Hardway. She was personally served and paid through the process server to be present in your court on April 30, 2008 at 11:00 a.m.

On April 30, 2008, we appeared before you. You had the clerk’s file with Mr. Leeds’ pleadings outlining his case and why he was asking you to vacate your previous order. As a judge, you are aware of the following cases: the Mosier case, the James H. Thomas v. Judge Miller case, the Diel v. U.S. case and the Metropolitan Transit Authority v. Jackson case which state that you not only had jurisdiction to hear our case but an absolute duty to do so and to set aside your previous order as void. The Judge Miller case stands for the proposition that the court has no discretion to refuse to set aside a void order once it is brought to the court’s attention.

On April 30, when you had the opportunity to right a wrong, a wrong that you yourself had authorized, you failed to do so. You also tried to back out of your responsibility by blaming it on your predecessor as though he would have to come do it. You stated,

“And I don’t remember doing this, so it may have been done by my predecessor.” (Pg. 6 of the transcript)

Mr. Leeds responded, “Right. And that’s why as an officer of the court I have a duty to bring this to the court’s attention. I don’t think it was done under your predecessor, I think, because the motion was filed after you took office.”

Your response was to skirt the issue and begin the process of closing down the hearing.

Then when we brought it to your attention that our witness, Ashlie Hardway had failed to appear in violation of a validly served subpoena you did not have her attached as we requested. We knew that Hardway would disobey the subpoena and fail to appear and so in advance we had prepared a writ of attachment for you signature to bring her in. However, you refused to sign it. You then cancelled the hearing.

The next thing you did was to refer the case to an out of town judge, Stephen Ables. Again you refused to follow the law and correct not only a mistake that was brought to your attention but one that was your own error. Additionally, instead of just transferring the case without comment meant to influence the successor judge, you wrote a memo on May 5, 2008 telling Judge Ables that the case was political. Instead of telling the judge that you had ordered the destruction of government documents based on incorrect pleadings, you tried to feign ignorance as to what it was all about by saying ,

“However, in examining the pleadings in ths case, this is not an Expunction, but rather this case deals with campaign accusations that arose regarding an elected official here in our county and the candidate in that county race.”

However in court on April 30 you said,

“But before we start, Mr. Leeds, I remember when you filed your motion, I thought, What is this? And let me tell you the concerns that I had–and I didn’t even know it had been set for a hearing until just, I guess, recently when I saw it was on my docket.” (pg. 5 of transcript).

My question is, how could you write that when the pleadings mention no politics or campaigns and speak directly to the law of expunction. And the more important question is, why in the world would you write such a thing to a judge you were referring the case to for him to decide if not to improperly influence him to dismiss the legal questions as political? You spent more time and effort getting out of your duties then you did addressing your wrong doings and fixing them.

Furthermore, in this note to Judge Ables, you never cited any reason for your disqualification or your recusal, which is the only reason for a Judge “not to hear and decide matters assigned to her.” See Canon 3. What was the reason for your recusal? What do you know that we don’t know?

On August 13, 2008, Judge Carl Pendergrass without much ado, traveled from Del Rio to hear this case and stated that,

“The pleadings speak for themselves. There is no pleading that the limitation has run, or the offense to which the party who has been charged with the offense is seeking the expunction...Limitations require that the petition for expunction not be filed until 20 years after that child reaches the age of 18 years. The court is of the understanding that the alleged victim in this case was six years at the time of the offense.

Clearly, limitation did not occur. And not having occurred, the petition for expunction should not have been filed. As such the order of expunction, which resulted from these pleadings is a legal malady, it is void and hereby ordered vacated....

It is further ordered that the name of Mr. Ocegueda and the records of his arrest be reinstated in all applicable city, county and state records.”

To say the least, it was very refreshing to see a judge who has the moral fiber to come in and hear a case and rule according to the law and without concern as to who is friends with whom. Why couldn’t you have done that? Why did it take hundreds of tax payer dollars to bring an out of town judge in to fix your mistake when you had the opportunity and the absolute obligation to do it yourself?–And while justice was left pending while we waited for out of town people to travel here to do your job, valuable records were being withheld from the public and perhaps were still being destroyed regarding the accusation of a little girl who said she had been raped by a coach at school. Attached please find a letter from the counselor at SISD documenting the child’s family’s anguish.

Recently, a lawyer named James Vasilas was charged with Tampering With Governmental Records in violation of Texas Penal Code Sec. 37.10. He had filed a petition for expunction stating false grounds. The Vasilas facts are eerily the same as those in the Spencer/Ocegueda case. Please see The State of Texas vs. James Vasilas, 2008 Tex. Crim. App. Lexis 579 (May 7, 2008); 187 SW 3rd 486 and 153 SW 3rd 725.

You as the judge either knew about the defects in the pleadings Mr. Spencer presented to you or you were duped. If you were duped, please see State Bar Rules of Professional Conduct, Rule 3.03 and Rule 8.03 and Code of Judicial Conduct, Canon 3 D(2), second sentence.

We gave Mr. Spencer the opportunity to “take reasonable remedial measures, including disclosure of the true facts.” See Rule 3.03, entitled Candor Toward the Tribunal. Spencer not only did not disclose the true facts, he filed pleadings and argued that the court had no jurisdiction to vacate your void order. Canon 3 states in pertinent part that:

“A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action.”

Canon 3 also states that “A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.”

Your staff has indicated to me that you were duped by Mr. Spencer’s pleadings. You now have another opportunity to do the right thing in this case. The rules of ethics require a judge who has knowledge that a lawyer has not been candid toward the tribunal (in this case I remind you that attorney Spencer handled his client’s underlying criminal offense and knew all of its details including that it had not been dismissed and that limitations had not run and that an information had not been filed. He is the same attorney who prepared the expunction and litigated it which led you to enter an order destroying governmental records) to report him to the State Bar.

Please let me know by no later than 5:00 p.m. on Friday, August 22, 2008 if you plan to report Mr. Spencer to the State Bar. If you read Rule 8.03 you will see that I also have an absolute duty to report those lawyers and judges who do not comply with the Bar and judicial rules. If I do not hear from you in written form, I will assume that your position is that Joe Spencer was candid to you when he presented his pleadings for expunction on Ocegueda to you and that you concur with what he did and that you believe that the order of expunction that you sent out to law enforcement agencies to destroy governmental records was fine, proper and legal.

Sincerely,



Theresa Caballero