A missing judge, a missing juror and no record as to why: Behind an overturned Dallas fentanyl case

From KERA News:

It was a simple enough question: How many people served on the jury that handed down Dallas’ first-ever fentanyl dealing conviction?

But no one seemed to have an answer.

Neither the defendant’s appellate attorney nor the assistant district attorney could explain to justices on the Dallas-based Fifth Court of Appeals how then-33-year-old Richard Leal, sentenced to 30 years in prison for dealing fentanyl, was tried with only 11 jurors — or, if there were 12 like the Texas Constitution requires, why there was no mention of a 12th juror in the trial transcript.

The Fifth Court of Appeals’ opinion in Richard Leal’s appealed fentanyl dealing conviction cites the only place in the trial court’s transcript where it’s indicated how many jurors were present for trial. The Texas Constitution requires that 12 jurors be seated, and prosecutors could provide no evidence of a 12th juror. Screenshot / Fifth Court of Appeals

The only part of the court record that indicates how many jurors were selected for Richard Leal’s trial in April 2024 is when, at the end of jury selection, the judge called 11 jurors to sit.

Leal’s attorney argued if the trial record says there were 11 jurors, then there were only 11 jurors. The assistant district attorney argued there were 12 jurors, even though the number of jurors was never mentioned again in the record.

But even though the judge in the case later said publicly there were 12 jurors, appellate courts must rely almost completely on what was decided and recorded in the trial record. The DA’s office ultimately couldn’t produce evidence of a full jury, and the Fifth Court of Appeals reversed Leal’s conviction and sent the case back to the trial court.

“Logic dictates there must have been twelve jurors; otherwise, someone would have said something about the empty seat in the jury box,” Justice Mike Lee wrote for the court. “But the record reflects the seating of eleven jurors, nothing more. And on appeal, the record matters.”

KERA News could not get the jury list during two separate visits to Dallas County’s criminal court building. An employee with the 282nd District Court said on Nov. 20 the records department would have the list unless it was sealed, and the records department said the DA’s office would have the list.

An investigator with the DA’s office said the department doesn’t hold on to that list. When asked what the DA’s office does with it, the investigator said he didn’t know.

During a visit Dec. 3, another employee for the 282nd District Court said KERA News would need to get a judge’s order to unseal the records. A different DA investigator said releasing the list would be the court’s decision.

The unusual mix-up in Leal’s case doesn’t necessarily mean he’ll walk free. If the state doesn’t appeal, he will likely get a retrial or come to a deal with prosecutors.

But the mistake cost the DA’s office a first-of-its-kind conviction meant to prove the grave consequences fentanyl dealers would face in Dallas County.

‘Thousands of pills and bricks’

According to the DA’s office, Dallas police pulled Leal over Feb. 18, 2023, after multiple traffic violations. Officers found that Leal had fentanyl pills along with cocaine, Alprazolam pills, methamphetamine pills and marijuana in his bag.

Leal told police he was able to get thousands of pills and bricks to distribute “as samples for his people,” the DA’s office said in a release.

Later that year, amid broader legislative efforts to curb what officials deemed a fentanyl crisis, the Texas Legislature passed House Bill 6. The law made delivering between four and 200 grams of a controlled substance — Leal’s charge — a first-degree felony. Those convicted face between 15 years to life in prison.

The charges were further enhanced as Leal had been convicted aggravated robbery in 2015, according to his indictment, also a felony.

Jury duty

Jury selection was the day before trial, and the judge only called out 11 jurors’ names.

At the end of the four-day trial, during which jurors heard from police officers and Leal himself, the jury handed down its guilty verdict. But only the presiding juror, David Bray, signed off on the jury’s verdict and punishment — giving no indication of who the other jurors were.

James Aulbaugh, Leal’s trial attorney, submitted a motion for a new trial on April 11 that did not mention any issues with the jury. Assistant Criminal District Attorney Larissa Roeder requested lists, questionnaires, juror information cards, lists of the prospective jurors stricken and the list of the 12 seated jurors.

Deputy District Clerk Crystal Angton provided some records. None named the final 12 people who made the jury.

Missing judge

According to court records, Leal’s case was filed in Judge Amber Givens’ court. But Givens didn’t oversee the trial. Senior District Judge Gracie Lewis did.

The public-facing Odyssey portal — a computer system used to manage court dockets — lists Givens as the judicial officer in charge of Leal’s trial, which started April 2, 2024. But a document filed April 4 indicates Lewis as the sitting judge by assignment. It’s the first time Lewis is ever mentioned in the online record.

In Texas, the presiding judge of one of the state’s 11 administrative judicial regions may assign a judge to sit in on a case if the usual judge recuses oneself, is sick, is on vacation or needs help managing their caseload. The substitute judge often doesn’t announce they’re presiding over the trial until it begins.

“Usually, that is done on the record at the start of the proceeding,” said Christopher Kratovil, a Dallas attorney. “But it is on the parties to object. And if you do not object, you have waived any complaint about a visiting judge presiding.”

The public record in Leal’s case doesn’t indicate why Givens didn’t preside over the case. But in an email, Givens still referred KERA News to public filings.

Givens did oversee some pretrial events in Leal’s case. An August 2023 certificate of call filed the day of one of Leal’s hearings states the deputy called out for Leal and he did not appear. If a defendant doesn’t appear for a court hearing and check in with the bailiff, that person’s bond will be held insufficient, meaning the defendant has violated their bond conditions.

Givens held Leal’s bond insufficient, and the order stated his bond would be set by a magistrate once Leal was in custody. A warrant was issued.

Three months later, on Nov. 29, Givens signed an order reinstating Leal’s bond and recalling the warrant for his arrest without explanation. The order noted:

“The Court, and/or my Staff at the Court’s direction, has reviewed the Odyssey file in the above referenced cause(s), and as of the date and time stamped below, there is no documentation in the Odyssey file relating to a recusal.”

Whether the note was meant to clarify that Givens did not recuse herself, or that she recused herself from the case and it was not noted, is unclear.

But days earlier, Givens had raised concerns about other recusals she said were not showing up in Odyssey. She faced a similar issue that led to an admonishment from the State Commission on Judicial Conduct earlier this year.

In a 2022 case, according to the public admonition document, she voluntarily recused herself after a party in the case filed a motion, and the case was assigned to another judge. Months later, she mistakenly believed the defendant had missed a hearing in her court, so she ordered he go to jail. In another case Givens was sanctioned for, a defendant did go to jail for six days.

Givens told the commission the Odyssey system did not properly reflect that she recused herself from those cases. She asked the district clerk’s office to update the system to reflect her recusal, but the district clerk’s office didn’t do as she requested, she said.

Neither Givens nor her attorney would comment on whether there were similarities between that case and Leal’s.

A confused appeals court

Appellate court justices heard oral arguments in the fentanyl dealing case in October. At the center of the appeal was the transcript, which noted just the 11 jurors.

“When I first got the transcript and I saw that, I thought for sure on the next page I’m going to see the 12th juror, and if not there, I’ll find evidence of a 12th juror somewhere else in this record,” Leal’s appellate attorney Brett Ordiway told the panel of justices. “But I searched and I searched and I didn’t find it.”

Roeder, the assistant DA, argued the number of jurors simply wasn’t mentioned in the record again because all were present.

Both Roeder and the justices appeared to be at a loss, going back and forth on how no one could notice a missing juror, who had the appropriate records and what it would take to get them.

“Normally there’s a jury list,” Roeder said. “For whatever reason, when I requested the records be sent up, no list was provided. I don’t know if it’s under the court’s bench, I don’t know where it is, if it existed at all.”

By law, the court coordinator is required to give both prosecutors and the defense the list of people who made the jury. But the DA’s office didn’t seem to have it, and neither Leal’s trial nor appellate attorneys would comment further.

A spokesperson for the DA’s office said in an email Nov. 19 that the office is examining the record and “any other source of information” to find any indication a 12th juror was present. KERA reached out to the DA’s office again Dec. 31 for updates.

Regardless, the list wasn’t part of the trial record — and the time to include it has passed, said Jenny Carroll, a criminal law professor at the Texas A&M University School of Law.

“We don’t want the courts to build the record for one side or the other,” Carroll said. “We want the court to be neutral. And so they say, ‘it’s your job to prove or disprove your case, right? So if you’re the prosecution and you want to respond to this defense claim that there were 11 jurors, you have to show us that there were 12. And if you can’t do that for whatever reason, that’s on you, that’s not on us.’”

Still, the DA’s office is making its case again in the Fifth Court of Appeals in hopes for a rehearing, arguing other evidence in the record points to a rational assumption that there were 12 jurors.

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