AUSTIN, Texas _ A Travis County state district judge is refusing to sentence a man convicted of sexual assault seven months ago, triggering a blistering rebuke from prosecutors who want her thrown off of the case because they say she cannot be unbiased after she herself had been investigated for sexual assault last year.
The legal dispute simmering in state District Judge Chantal Eldridge's courtroom is centered on Byron Montiel-Flores, a 32-year-old man who was found guilty of sexual assault. Jurors sided with a woman who testified that Montiel-Flores raped her after he hired her to clean his East Austin apartment.
Montiel-Flores chose to go to Eldridge for punishment, a common strategy when defendants believe the judge will issue a lighter sentence than the jury would have.
But Eldridge hasn'' gone through with it, according to a recent court filing from prosecutors, because she says Montiel-Flores' lawyer provided bad advice in suggesting the judge might opt for probation over prison _ which would have been impossible because Eldridge lacked the legal authority to do so. Eldridge, according to the filing, is considering granting Montiel-Flores a new trial.
On Sept. 19, visiting Judge Dan Mills will be in Austin to take up a motion from the state to force Eldridge's ouster from the case, a move that could clear the way for Montiel-Flores to be sentenced at last.
"The victim has waited a long time for this case to be finished which is unfair to her," Travis County District Attorney Margaret Moore said. "This has been an ordeal that is unnecessary for all parties involved. ... Something has to happen to get this case in the hands of somebody who will get the business taken care of."
But retired Judge Jon Wisser said Eldridge appears to be within her judicial discretion by refusing to sentence Montiel-Flores.
"If a judge thinks something is seriously amiss at trial, they have an obligation to grant a new trial," Wisser said. "If they think the behavior, conduct, or inefficiency of the attorney is such that it affected the case, then I think you grant a new trial."
Montiel-Flores' trial was Eldridge's first after she was sworn in to take over the 331st district court bench in early January. A longtime area defense attorney, Eldridge easily defeated incumbent Judge David Crain in the March 2018 Democratic primary, proving to be unaffected by a revelation that Austin Police had investigated an outcry 12 years earlier from a Brazilian student, then 16, who was living in Eldridge's Southwest Austin home when he said the two played strip poker and had sex.
Although no Republican candidates faced her in the general election last November, Eldridge's path to the bench was uncertain after the county appointed powerful Houston defense attorney Rusty Hardin to investigate the allegations for possible criminal charges. With Eldridge's accuser flying in from Brazil to testify, Hardin presented the case to a grand jury, which determined the evidence was insufficient to indict Eldridge.
Prosecutors, in a 29-page court filing from Aug. 6, asserted that as a result of the investigation Eldridge is sympathetic to people like Montiel-Flores, who are charged with sex crimes. They also noted Eldridge employs a registered sex offender as her court coordinator.
"The record reflects that, due to her biases, the trial judge engaged in conduct during trial and displayed a disposition so excessively favorable to the defense ... that a reasonable member of the public would question whether she was actually impartial," prosecutor Lisa Stewart wrote.
This is the second time a lawyer has cited that investigation to get Eldridge thrown off a case. The first time was successful. The attorney who represented the Brazilian man at the grand jury hearing, Allison Wetzel, filed a motion for recusal in March, alleging Eldridge had negative feelings for her and would be biased against a client she was representing on an unrelated charge of invasive digital recording. Eldridge refused to step down, setting up a hearing where visiting Judge Todd Blomerth sided with Wetzel and removed Eldridge from the case.
Eldridge declined to comment last week about the upcoming recusal hearing involving Montiel-Flores, citing a courthouse-wide policy of judges refusing to talk publicly about pending cases. If Eldridge prevails and stays on the case, she likely will schedule a hearing that Montiel-Flores' new defense lawyer, Jesus Salinas, requested for a new trial on the grounds that his previous lawyer, Alfonso Hernandez, was ineffective.
Montiel-Flores was originally going to be sentenced on Feb. 20. But at that setting, court records show, Eldridge brought up Hernandez's error that led to Montiel-Flores believing he could get probation from the judge. Eldridge, according to prosecutors, instructed lawyers on both sides to prepare briefs on that issue.
But Hernandez did not file a brief, instead telling the judge that by doing so it would cause him to divulge privileged communications he had with Montiel-Flores.
Then Eldridge, in a move prosecutors say was an abuse of her power, removed Hernandez from the case.
At the next setting, on April 26, Montiel-Flores' new attorney, Salinas, requested a transcript of the trial to assess Hernandez's performance. Salinas would later file a motion for a new trial alleging ineffective assistance of counsel.
Prosecutors, whose patience had worn thin, withdrew an offer that would have let Montiel-Flores off with a two-year sentence, the minimum punishment for sexual assault, a second-degree felony that carries a maximum sentence of 20 years in prison. Montiel-Flores, who prosecutors say has been living in the country illegally, has been in jail since Sept. 26, 2017, and likely will be deported after he completes whatever sentence he ultimately receives.
Defense lawyer Jon Evans, who is assisting Salinas in Montiel-Flores' request for a new trial, said the delay has been necessary to review the trial transcript. Eldridge, according to Evans, has been fair.
"Certainly, one must hope that the Travis County district attorney's office does not want anyone to be denied the constitutionally guaranteed right to effective assistance of counsel," Evans said. "The judge has done everything to try to ensure that the accused does receive effective assistance of counsel."
