AMERICAN ARBITRATION ASSOCIATION

IN THE MATTER OF THE APPEAL HEARING

CHAPTER 143, TEXAS LOCAL GOVERNMENT CODE
THIRD-PARTY HEARING EXAMINER PROCEEDING
POLICE OFFICER,
ODV,
APPELLANT
AND
CITY OF MISSION, TEXAS,
EMPLOYER

AAA NO. 70-390-00664-13

BEFORE THE HONORABLE
I. B. HELBURN,
HEARING EXAMINER
JUNE 5 & 6, 2014

APPELLANT ODVS POST HEARING BRIEF

TO THE HEARING EXAMINER

TO THE THIRD PARTY HEARING EXAMINER:

Appellant ODV files this Post Hearing Brief in support of his request that his
appeal from the City of Missions indefinite suspension be granted in its entirety and that
the disciplinary actions imposed by the City of Missions Police Department be set aside.
CONTENTS
I.
II.
III.
IV.
V.

ISSUE 2
NOTICE OF INDEFINITE SUSPENSION.... 2
ARGUMENTS AND ANALYSIS OF EVIDENCE
PRESENTED AT THE HEARING 6
CONCLUSION............16
PRAYER..19

I.
ISSUE

Does the City have just cause to indefinitely suspend Officer ODV? If not, what
are the appropriate remedies?
II.
NOTICE OF INDEFINITE SUSPENSION
On September 13, 2013, Mission Police Department served Officer ODV a notice
of Indefinite Suspension (See City Exhibit 20). In that notice, Officer De Villegas was
advised of the Citys version of the facts in the section of the notice titled Statement of
Facts. The statement of facts also advises Officer De Villegas how they arrived at the
Chiefs interpretation of the facts. The following are relevant allegations as they were
presented to Officer De Villegas in the Statement of Facts that pertain to the allegations
of excessive force against the suspect, Omar Pina.
1. Mr. Pina claimed that the arresting officer had intentionally struck him on
his head with his service weapon causing laceration to the top of his head
area.
2. Officer Ruben Garza, Palmview Police Dept., witnessed you strike Omar
twice on the head with your service weapon. Officer Bryan Flores,
Palmview Police Dept., also reported to Lt. Sanchez that he witnessed you
grab Omar Pina from his arm and crotch area once he was handcuffed.
3. Thereafter, Officer Garza then witnessed where you lifted Mr. Pina into
the air, as you waited for someone to open the back door to your patrol
unit. Then, from the position you had Mr. Pina in, (raised up in the air)
you then threw him in the back seat of your patrol unit.
4. You then transported him to the Mission Police Department where he
refused medical treatment and you then transported him to the Palmview
Police Department.
5. Investigators interviewed Mr. Pina, who stated that he had been struck
twice on the head with a gun by the arresting officer from the Mission
Police Department.
6. He further stated that he had not resisted and had complied with all the
verbal commands that were given to him during the arrest.

7. Unit #228 video was reviewed and the camera was able to record when
you are attempting to extract Mr. Pina from the vehicle.
8. You are seen grabbing Mr. Pina from his shirt and took him down to the
ground, where he lands on his knees. At that point you push him down to
the ground where he landed on the side of his body facing the camera.
You then turn him over on his stomach and positioned yourself on his back
attempting to grab his hands.
9. During this part of the arrest, you still had your service weapon in your
right hand
10. it is alleged by Mr. Pina and witnessed by Officer Garza of the
Palmview Police Department that you struck Mr. Pina with your service
weapon on the top of his head, causing his injuries.
11. You then holstered your weapon in order to grab your handcuffs.
12. With the assistance of Officer Ruben Garza from the Palmview Police
Department, you were able to handcuff Mr. Pina.
13. You then lifted Mr. Pina off the ground and carried him over to Palmview
Police patrol unit PV-14, where you patted him down.
14. After you were done, you then grabbed Mr. Pina from his arm area and
crotch area and picked him up in the air. You then carried him to your
patrol unit (PDB-266), where a Palmview Police officer assisted you in
opening the unit door. You then threw Mr. Pina into the patrol unit and
secured him by closing the unit door.
15. Based on Officer Charles Lopez police report, he states that he observed
you carrying Mr. Pina towards a marked Mission Police unit while he was
handcuffed. Officer Charles Lopez report further states that he verbally
told you twice to put Mr. Pina down, because Mr. Pina was not resisting,
yet you continued carrying him to your police unit.
16. During the entire process of the arrest, from the moment Mr. Omar Pina
was handcuffed to the point that you lifted him off the ground and towards
the marked Palmview unit; then from the Palmview unit when you lifted
him in the air and held him up in the air; and then to the point that you
threw Mr. Pina into the Mission Police marked police unit the manner in
which you treated Mr. Omar Pina was uncalled for and is clearly not the
appropriate way to treat a persons in police custody.
17. During the course of the arrest (upon viewing the video recording from
Police Unit #228), it is obvious that you were angry and not following
3

appropriate professional police practices in securing and treating a

prisoner.
18. After you threw Mr. Pina into the back seat of your assigned police unit,
you were seen leaving the area and out of the view of the camera system
in Mission Police Patrol unit #228.
19. I was later advised by Sgt. Rodriguez that he had discovered some hair
follicles on the right side of your duty weapon and that the rear passenger
area of your unit (PDB-266) had been photographed where blood was
found.
20. In reviewing Officer Ruben Garzas affidavit, he states that he assisted
you in taking Omar Pina out (sic) the vehicle through the front right
passenger side door and while on the ground, he noticed that Omar Pina
had his hands behind his back with his palms up. He further states in his
affidavit that you then struck Omar Pina twice on the back of his head
with your handgun. He also witnesses you grab Mr. Pina from his shirt
and crotch area, where you then threw him in the back seat of a Mission
Police patrol unit.
21. In reviewing Officer Bryan Flores affidavit he describes you and Mr.
Pina at the scene. He states that he saw you grab Omar Pina from his back
and crotch area, where you then threw him into the back of Mission Police
patrol unit.
22. On July 10, 2013 contact was made with Omar Pina who provided an
affidavit wishing to file a formal complaint against you for the events that
transpired on April 19, 2013. He states that he stayed in the white Tahoe
after the pursuit ended raising his hands up in the air and that he unlocked
the front right passenger door of the Tahoe, after seeing you pointing your
service weapon at him. He further states that you then grabbed him from
his chest, where you then threw him to the ground and hit him over the
head with your service weapon once or twice. He added that while he was
on the ground being handcuffed, you then grabbed his balls and squeezed
them causing him pain, at which point you told him This is what you get
and threw him into a patrol unit.
23. You then stated you ran up to the front passenger side door of the suspect
vehicle with your service weapon drawn and that the front right passenger
(Omar Pina) had his hands up in the air. You then stated that you gave him
verbal commands to exit the vehicle, but you ultimately pulled him out of
the vehicle from his clothing.
24. When Mr. Pina was moving his hands, you stated in the interview that
you did not know if he had a weapon or anything so you wanted to Ki.
4

(stutter). Based on the audio recording, it is my belief that the

aforementioned sentence from your interview, you intended to say that
based on the fact that Mr. Pina was moving his hand and that you did not
know if he had a weapon or anything that you wanted to kill him. Upon
hearing this, I am very concerned about your behavior towards Mr. Pina or
for that matter, any defendant that you might come into contact with
during your normal course of employment.
25. You then stated that while you were trying to turn him over, you still had
your service weapon in your hand and you might have struck him
unintentionally with your service weapon.
(See City Exhibit 20)
On the last paragraph of the statement of facts the Chief states in part the
following:
Based on the aforementioned incident and the facts relating to the
events that led to an internal investigation, I find that you have violated the following
rules under the City of Mission Personnel Policy, Mission Police Department General
Manual, City of Mission Local Civil Service Commission Rules and Regulations and
Chapter 143 of the Texas Local Government Code. (See Id.)
On the last section of the notice under the subtitle Right to Appeal it states in
part the following:
Based on the violations of the aforementioned rules/policies and civil
service law, you are hereby indefinitely suspended (See Id.)
Officer De Villegas was served with this indefinite suspension and these were the
relevant facts as viewed by the City used as the cause for the indefinite suspension. Of
course, other alleged facts were presented in the notice but I have limited this summary to
the alleged facts presented to Officer De Villegas that pertain to the allegations of (1)
intentionally striking Mr. Pina in the head with his service weapon; (2) squeezing Mr.
Pinas testicles; and (3) picking up and throwing Mr. Pina into a patrol unit.

III.
ARGUMENTS AND ANALYSIS
Does the City have just cause to indefinitely suspend Officer ODV? If not, what are
the appropriate remedies?
A.

Burden of Proof is on the Department and the Appropriate Standard of Review

of the Examiner is Preponderance of the Evidence
At this juncture the City has to prove that Officer De Villegas was indefinitely

suspended for the reasons stated in the Charging Letter, Chiefs Notice of Indefinite
Suspension, and to prove that the findings and the respective suspension was an
appropriate remedy. See, Waller v. Bexar County Sheriffs Civil Service Commission, 131
S.W.3d, 125 (Tex. App.San Antonio 2004, page 127-128). If this were not the case, the
City would not have the benefit of presenting its evidence first during the hearing.
The proper standard is set by Section 143.057(f) of the Local Government Code
which states that the hearing examiner has the same powers as the commission. Section
143.053 of the Local Government Code clearly gives the commission clear authority,
without limitation, over matters concerning the department heads charges including
dismissals, suspensions, restoration to positions, and compensation concerning officers.
In fact, the language in 143.053(f) even uses language which states that if the commission
finds that the period of disciplinary suspension should be reduced, the commission
may reduce the period of suspension. Thus, there is no standard of abuse discretion
specified by the statute, and the appropriate standard of review for the hearing examiner
is that of the preponderance of the evidence.

To hold otherwise would place an

unreasonable burden on the officer to disprove the Chiefs case which the legislature did
not intend to do based on the permissive language it and in the statistics.

The notion of independent review is reflected in various cases which have gone
on appeal. See Waller v. Bexar County Sheriff Civil Service Commission, 131 S.W.3d,
125 (Tex. App.San Antonio 2004, page 127-128) (indicating that the County must
introduce evidence to justify the termination and that the appellant did not have the
burden of proof at the hearing nor did she need to prove the Countys adverse action
should not be upheld). See also, City of Laredo v. Rodriguez, 791 S.W.2d, 567 (Tex.
App.San Antonio 1990 at 568). Ann Skates v. City of Paris, 363 S.W.2d, 425 (Tex. 1963
at 426), both stating that the commission must simply make a finding of truth for the
specific charges against the employee.
In this case, this honorable hearing examiner must simply make a finding of
whether or not the charges, in this case, [1] intentionally striking Omar Pina with the
service weapon on the head; [2] squeezing Omar Pinas testicles; and [3] picking up and
throwing Omar Pina into the patrol unit are sustained or not, based on the credible
evidence presented. All in all, the commission, and in this case the honorable hearing
examiner, has been given broad discretion to make an independent review of the case
presented.
B.

Intentionally striking Omar Pina with the service weapon on the head.
As the Citys attorney repeatedly stated at the hearing, The video speaks for

itself, the video from Unit 228 dashcam does speak for itself. (See pg. 177:7, 192:3-4)
This entire hearing could have been reduced to the video, as the video clearly shows that
Officer De Villegas never struck Mr. Pina with his service weapon. This allegation boils
down to whether Officer De Villegas intentionally used his service weapon to thump

(as the Citys counsel stated) Mr. Pina on the head and the City was unable to prove that
allegation.
The city relies on two things to try and prove that Officer De Villegas
intentionally hit Mr. Pina over the head with his service weapon, (1) Omar Pinas
accusations; and (2) Palmview Officer Ruben Garzas supposed eye witness recollection.
Any assertion, affidavit, statement and/or testimony of Omar Pina regarding this
incident should be questionable at best. The evidence is overwhelming that Mr. Pina was
under the influence of very strong and potent narcotics which were mixed together. He
testified that he had taken Xanax shortly before the high speed chase and consumed
cocaine and marihuana during the early morning hours. He admits that he was partying
with some girls, presumably all night, when Rosales, the driver of the stolen SUV, picked
him up. He confesses that Rosales had a lot of cocaine (an 8 ball) and that Omar Pina
took two or three BOMBS of cocaine. Several officers testified that he showed signs of
intoxication and that an eight ball of cocaine is a lot of cocaine. (V. Ochoa testimony, pg.
51:13-14)

The investigators refused to have him sign an affidavit because of the

narcotics he had ingested and the signs of intoxication. (T. Rodriguez testimony, pg.
284). Additionally, several of the statements he made on his two affidavits and his
testimony from prison are either contradictory or outright lies, as the following reflect:
1. Today, early in the morning my friend, Roel, whose last name I do not
know picked me up around the area of a pawn shop in Palmview. (See City
Exhibit 14)
2. In the early morning of April 19, 2013 my friend, Roel Rosales, picked me
up around the area of Business 83 in Palmview (See City Exhibit 14a)
Two contradictory statements.

3. He picked me up in a white Chevy or GMC truck while I was walking on

the road. He was just driving by and he saw me. (See City Exhibit 14)
4. He picked me up in a white Chevy or GMC Tahoe from a friends house
where I was hanging out with some girls. (Exh. 14a)
Two contradictory statements.
5. He then got in the high speed pursuit and we were nervous. Roel kept
driving and we were NOT talking. (Exh. 14 and 14a)
6. Q(City Counsel): What were you telling him as you were drivingas he was
driving at such a high speed?
A(Mr. Pina): I was telling him that I wasnt responsible for anything that was
going to happen because I didnt know it was stolen and I was justyou
know, I was riding passenger. I let him know that what could happen if we
were going at such a high speed rate that we could crash or something. (See
Testimony of Omar Pina, Pg. 161:12-22)
Again, two different versions of the facts.
7. I do not remember from where he grabbed me but I was thrown to the
ground real hard. (Exh. 14)
8. The Mission police officer then grabbed me from my chest area and threw
me to the ground real hard. (Exh. 14a)
Two different version of facts.
9. I then started feeling about five other people hitting me and I was telling me
(sic) them that I was not resisting. (Exh. 14 and 14a)
10. They punched me likeI would say like seven times on the side of my legs
and on the side of my body. While I was still on the ground, sir. I wasnt
handcuffed yet. (O. Pina testimony, pg. 173:16-22)
The video contradicts these statements from Pina, and reveals they are
outright lies.
11. That same person then told me, Now I got you little fucker. (Exh. 14)
12. He then told me, This is what you get. (Exh. 14a)
He is lying on one or both of these statements. He forgets how his lie was
told. We are, both.

13. I started calling him a pigThe officer began telling me bad words
because I was calling him names. (Exh. 14)
14. The officer then began cussing at me because I was telling him that he was
going to get in trouble for hitting me over the head with his gun. (Exh. 14a)
15. at first he was telling , he was telling me things aboutlike he was telling
me angry stuff about me and the high speed chase and stuff, and thats what I
deserve and all that. (O. Pina testimony, pg. 166:1-4)
At the hearing, the truth comes out.
16. During the whole time, my hand were at my side.
Outright lie according to the video.
17. I believe it was his left hand, he got my arms that were handcuffed, and with
his right hand picked me up like that and squeezed my testicles and told me
this is what you get. AndAnd then he threw methey opened the cop car
and he threw me. (O. Pina Testimony, pg. 165:3-10)
Another outright lie, according to the video.
Assessing Omar Pinas credibility, the hearing officer can just look at the record
and the evidence presented to determine that Mr. Pina cannot be relied upon to prove the
Citys case. Even if Mr. Pinas testimony about Officer De Villegas intentionally striking
him with his weapon is believable, which we contend is not, Mr. Pinas accusation stems
from him feeling the hit to his head in the struggle and turning toward Officer De
Villegas and seeing the gun. (See O. Pina testimony, pg. 179:24). The City is unable to
show that Officer De Villegas intentionally struck Mr. Pina with his weapon.
As for Officer Ruben Garza, he was falling out of the stolen SUV as he look in
the direction of Officer De Villegas and Omar Pina and states he saw Officer De Villegas
strike Mr. Pina twice in the head. He states that Officer De Villegas did not raise his
weapon but that the strikes were short, at most five inches. (See R. Garza testimony, pg.
45:8-13). This is in direct contradiction to the motion that the Citys attorney did in her
10

opening when she was attempting to describe the alleged striking with the weapon. She
picked up her hand over her head and moved her hand up and down in a thumping
fashion which is not what the evidence revealed.
There is no reason for Officer Garza to lie, he is just saying what he thinks he saw.
Officer De Villegas does not believe that Officer Garza is misrepresenting the truth
intentionally, but luckily the video catches what actually happened. What he actually saw
and what the video, which is the best evidence in the case, shows, is Officer De Villegas
holding his weapon in his hand as he is trying to turn over the suspect with both hands.
He sees the movement of Officer De Villegas hands and assumes they are strikes to the
head after he see the blood on the head. There is no proof of strikes, let alone intentional
strike to the head. Unlike what the City would like the hearing examiner to believe, it is
not the burden of Officer De Villegas to prove where the cut and blood came from,
whether the cut on the head was a result of the impact with the cement drainage pipe or
the abrupt fall to the ground. It is the Citys burden to show that Officer De Villegas took
his weapon and intentionally struck Mr. Pina in the head.
The investigation into Officer De Villegas was conducted by Officer Vicente
Ochoa of Internal Affairs. First of all it is odd that the city waits three months to
interview Officer De Villegas after they place him on leave the day of the incident. They
ask him questions of things he did and said knowing how much time had passed instead
of doing it shortly after the incident. What is interesting is that the Citys attitude about
the alleged blow to the head of Omar Pina with the gun by Officer De Villegas is revealed
during the interview. Inv. Ochoa states:

11

Mr. Pina is alleging that there was excessive force, namely being hit over the
head with a. Well not being hit over the head, but just being struck with the
service weapon. And the other one is the Mission Police mishandling of the
prisoner.
(Emphasis added, See City Exhibit 17, transcript of IA Interview, pg. 31)
The City and its IA investigator assigned to investigate this alleged thumping in
the head (as the Citys counsel was so delighted in saying repeatedly) do not even
believe it themselves. Inv. Ochoa had to correct himself by saying, not hit over the
head when IN FACT, that is exactly what Omar Pina, the convicted felon, was accusing
Officer De Villegas of doing. Both of Omar Pinas affidavits, one from the day of the
arrest and the other on July 10 th, accuse Officer De Villegas of hit(ting) me over the
head with a gun. (See City Exhibits 14 and 14a).
There is no other reason why the Investigator would intentionally correct himself
and say NOT hit over the head, but JUST being struck with the service weapon
(emphasis added) other than he does NOT believe that any contact on Mr. Pinas body
with the service weapon was intentional. Why would Inv. Ochoa add just to his
statement? Because, he as a representative of the city and the individual assigned to do
the fact finding in this case is not convinced of any intentional striking of the head by
Officer De Villegas with his service weapon. The video and Inv. Ochoas words speak
for themselves.
The evidence is clear and convincing that Officer De Villegas did not violate any
rules or policies regarding this specific charge, and has always been up front stating that
he had his service weapon in his right hand when he took down Mr. Pina and that if his

12

weapon made contact with Mr. Pina is was purely unintentional, which is what the video
(which speaks for itself) confirms.
C.

Squeezing Omar Pinas testicles.

Again, the best evidence come from Unit 228s dashcam video. At no time, does

it show Officer De Villegas squeezing Omar Pinas testicles. The entire time that Officer
De Villegas has contact with Omar Pina from the time he extracts the suspect from the
SUV until Mr. Pina is in the patrol unit can be accounted for.
As for the span of time from taking Mr. Pina out of the SUV until he is picked and
put against a Palmview police unit. The dashcam video from Unit #228 is the best
evidence. The video shows Officer De Villegas taking Mr. Pina out of the stolen SUV
and dropping him to the floor. There is no dispute that during this time, Officer De
Villegas did not grab and squeeze Mr. Pinas testicles. Then the video shows Officer De
Villegas on the ground with Mr. Pina and it is clear and undisputed that Officer De
Villegas did not grab and squeeze Mr. Pinas testicles during the struggle on the ground.
The video then shows Officer De Villegas pick up Mr. Pina from the ground and take him
over to a Palmview police unit closest to them. During this time, it is abundantly clear
that Officer De Villegas does not grab and squeeze Omar Pinas testicles.
The span of time when Officer De Villegas has Omar Pina up against the
Palmview police unit is relatively a short amount of time but is out of camera view. At
this time, when Officer De Villegas put Mr. Pina against the vehicle to check him for
weapons, they are not in the view of the dashcam video, but there are plenty of Palmview
and Mission police officers around. None of them, state that Officer De Villegas grabbed
and squeezed Omar Pinas testicles at that time while he is frisking him. Officer De

13

Villegas has always stated that he conducted a standard frisk of Omar Pina at the time he
had him up against the car which includes checking the crotch area, we have all seen it on
TV. (See pg. 194:10-13, 195:10-18) Just like most persons, Mr. Pina took offense to
having his inner thighs and crotch area touched by a police officer, but that is what
officers do to make sure that the safety of ALL is assured. By no means, does conducting
a standard frisk on Mr. Pina equal grabbing and squeezing his testicles.
The span of time from when Officer De Villegas picks up Mr. Pina and carries
him from the Palmview police unit to the Mission police unit that transports Mr. Pina is
evidence from dashcam video from Unit #228. During this time some very important
evidence was discovered from the video to contradict Mr. Pinas accusations of testicle
grabbing and squeezing. The evidence is clear that Mr. Pina is using his trousers where
the waistband is not actually on the persons waist, like you and I would wear a pair of
pants. The pants are worn very loosely and waistband is actually cinched to the persons
lower hip area, closer to the crotch area where you can see the persons underwear and
dragging on the floor by the feet. The type of person that wears trousers very loosely like
this, does it to conceal weapons, drugs, and/or merchandise they steal from stores and so
that they have street cred from other criminals. This manner of dress by Mr. Pina is
very important because the video clearly shows Officer De Villegas carrying Mr. Pina
from the inner thigh area since the crotch area of the trouser would logically not be on
Mr. Pinas crotch since he wears his pants in this gangster type of way. This would make
the pant crotch be probably about half a foot from Mr. Pina testicles. The video is clear
evidence of this. It shows where the trousers are in relation to Mr. Pinas anatomy, and
Officer De Villegas hand placement.

14

The evidence presented at the hearing, namely the dashcam video makes it clear
that Officer De Villegas did not squeeze Omar Pinas testicles. Officer De Villegas has
ALWAYS stated that he conducted a standard frisk.

Additionally, when he was

interviewed for the first time by IA investigators approximately 3 months after the
incident and after he had been placed on leave he advised the investigator that if his hand
made contact with Omar Pinas crotch area it was purely unintentional which is what the
best evidence in the case, the video, reveals. As counsel for the city maintains, the video
speaks for itself.
D.

Picking up and throwing Omar Pina into the patrol unit.

This happened, but it does not merit the loss of Officer De Villegas job with

Mission Police Department and his career in law enforcement. When first confronted
with the complaint of carrying Omar Pina and throwing him in the unit, Officer De
Villegas admitted to the investigator that he should not have tossed Mr. Pina the manner
he did. He learned from the incident and would be a better officer for it.
Evidence was introduced that the job description for a police patrol officer at
Mission Police Dept. states that one of the physical demands of a patrol police officer is
the ability to lift an adult to remove him from danger or TO RESTRAIN HIM. (See
Appellant Exhibit A-10, pg. 7). So to give Officer De Villegas that job description, make
him sign it acknowledging that he received it and then complaining about Officer De
Villegas of picking the suspect up is illogical. Nonetheless, officer De Villegas and his
counsel understand that picking Mr. Pina up combined with throwing him like a sack of
potatoes (as Citys counsel mentioned several times) goes beyond what Officer De
Villegas should have done.

15

Based on all the evidence presented, the hearing examiner should rule that the two
allegations: 1). Intentionally striking (thumping) the head of Mr. Pina with his service
weapon; and 2) Squeezing the testicles of Mr. Pina, were false and set aside the indefinite
suspension. As for the allegation of picking up and throwing Mr. Pina into the patrol
unit, discipline should be imposed but not an indefinite suspension.
Therefore, the indefinite suspension should be set aside.
IV.
CONCLUSION
Taking the entire true facts and evidence into consideration in this disciplinary
action, it should be clear that two of the charges against Officer De Villegas are without
merit and should not have been sustained.

The City of Mission had an affirmative duty

and responsibility to allege and prove with a reasonable degree of certainty the wrongful
acts alleged to have been committed by Officer De Villegas and the specific rules
violated. Additionally, if the City had proved those allegations, which we contend, they
did not because they did not present any competent evidence to prove any alleged
misconduct, then the City must then go forward and constructively prove that the
disciplinary

sanctions

selectively

imposed

on

Officer

De

Villegas

were

nondiscriminatory, just, and proportionate based on the relevant circumstances involved.

Ever since Officer De Villegas was confronted with the allegation that he violated
policy when he picked up and threw Omar Pina into the patrol unit, he has agreed and
acknowledged that he should not have done so. Those actions alone based on the totality
of the circumstances do no merit an indefinite suspension.

Indefinitely suspending

Officer De Villegas for this would not be just and proportionate based on the totality of

16

the circumstances but Officer De Villegas does acknowledge that some other discipline is
merited, but not an indefinite suspension.
The evidence at the hearing, in particular the dashcam video from Unit 228 is
very compelling to show what really happened. As the evidence presented at the hearing
reflects, the eye witness testimony of Omar Pina and Officer Ruben Garza is like a lot
of eye witness testimony, unreliable. The best evidence of what happened in this case IS
dashcam video from Unit 228 and it speaks for itself as the Citys attorney stated and as
IA Investigator Vicente Ochoa told Officer De Villegas on July 17, 2013, three months
after the incident. (pg. 177:7, 192:3-4; City Exhibit 17, 1st IA Interview of Omar De
Villegas on July 17, 2013, pg. 30)
After a high speed chase through two cities, the suspects take a route commonly
used by alien and drug traffickers along the border. (see Javier Ramon testimony, pg.
223) The area where the chase ended is in a route commonly used be Mexican cartels to
get to the river and is considered a high Mexican cartel crime area. (See Adan Barrera
testimony, pg. 253). This area is not like any other area in Texas now. Officer are
dealing with the same type of violence, corruption and crime that had plagued Mexico for
years, but is now on our borders.
The video shows exactly what happened. Officer De Villegas drew his weapon
just like other officers at the scene did. He went hands on on Omar Pina, just like
Officer Ruben Garza did. Officer De Villegas made a split second decision to take Omar
Pina to the ground since the other suspect had already fled on foot. Coincidentally, the
other suspect was also taken down to the ground when he was tackled by two officers
while one of the officers still had his gun in his hand. Officer De Villegas struggles to get

17

the suspect on his stomach to gain positive control of him and handcuff him, since no one
is helping him yet. During this struggle Officer De Villegas still has his weapon in his
hand. Unlike the other officer that put the weapon on the street next to him, Officer De
Villegas still does not have assistance. As soon as he is covered by Officer Ruben Garza,
Officer De Villegas holsters his weapon. Officer Garza leaves Officer De Villegas once
Mr. Pina is handcuffed and so Officer De Villegas is left alone to take the suspect to the
unit. At this time, the video show Officer De Villegas pick up Mr. Pina and throw him in
the unit, which was not necessary.
But for the mishandling of Omar Pina in throwing him into the unit, the City does
not have credible evidence sufficient to sustain the allegations against Officer De
Villegas. The Citys main witnesses, Omar Pina and Officer Ruben Garza, do not
produce evidence of any intentional striking of the head with the weapon or squeezing of
testicles. The alleged violations against Officer De Villegas were not proven.
The Citys case is based on pure assumptions, but fortunately, dash cam video
from Unit 228 can be viewed and the true facts are revealed.

In addition to the

assumptions addressed in this brief, an additional assumption made by the Chief in the
notice of indefinite suspension referenced above in number 24 of Exhibit 20 is ludicrous.
The statement in the interview was as follows:
From those moments he was moving his hands and I didnt know if he had a
weapon or anything so I wanted to ki(stutters), I complete control of his hands and
where they were moving. (See City Exhibit 17, pg. 14)
The Chief interpreted that as Officer De Villegas saying I wanted to kill him as
opposed to I did not know if he had a weapon or anything so I wanted to keep complete

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control of his hand. They could have just asked Officer De Villegas to repeat his
statement or asked him about it, instead of making another assumption.
It is quite interesting to note that on direct examination by the Citys own
attorney, IA Inv. Ochoa is asked directly about his observations from the video of Unit
228 and what he saw when he reviewed it. He was asked what if anything did he see the
he felt was important with regard to the complaint Mr. Pina had made against Officer
De Villegas and Inv. Ochoa went on to list all of his evidentiary observations from the
video.except any striking/hit of the head with the service weapon by Officer De
Villegas. (See Inv. Ochoa testimony, pg. 15:16-25, pg. 16:1-25). He never mentions it,
even with the guidance of the Citys attorney.
The overwhelming evidence demonstrates that the Chiefs decision was arbitrary,
capricious or unreasonable when he indefinitely suspended Officer De Villegas and
therefore, the indefinite suspension should be set aside and Officer De Villegas should be
made whole.

The hearing officer should reduce the indefinite suspension to a

disciplinary action (for the throwing of the suspect into the patrol unit) that allows Officer
De Villegas to continue serving the City of Mission.
V.
PRAYER
Based on the allegations listed in Officer ODV Notice of Indefinite Suspension,
Appellant prays for the following:
a. That his appeal be granted;
b. That his indefinite suspension be set aside;
c. That he be made whole in all things entitled to, including that he be
awarded back pay and benefits; and
d. For such other relief that is just and equitable.

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Respectfully submitted,
LOPEZ LAW FIRM
2007 E. Griffin Parkway
Mission, Texas 78572
Tel. (956) 581-7070
Fax (956) 581-7072
_Miguel Lopez Jr.___________
Miguel Lopez, Jr.
State Bar No. 24025499
Attorney for Appellant
CERTIFICATE OF SERVICE
This is to certify that, in accordance with accordance sent to the parties by the
AAA, copy of the Appellants Post Hearing Brief has been via electronic mail to:
American Arbitration Association (AAAMaryJara@adr.org)
Ms. Bettye Lynn (lynn@laborcounsel.net)
_Miguel Lopez,
Miguel Lopez, Jr.

Jr.___________

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