

Less than a minute later, officer William Lindsey Jr., a task force member, arrived. By that time, Fattig had opened the passenger side of the car to question Eduardo Nunez, who was riding with Vara, and two open bottles of beer fell out onto the street.

Vara denied having had anything to drink. He said he had been sober for five years after having been convicted twice before for driving while intoxicated.

Lindsey administered several physical sobriety tests, including walking in a straight line, following a pen with his eyes, and lifting one leg and holding it for 30 seconds. Lindsey concluded that Vara was intoxicated and declared, “Okay, Cheeto, put the handcuffs on.” Vara’s passenger, Nunez, was ticketed for public intoxication and released.

Vara went to trial in Harris County Criminal District Court in March 2007. During opening statements, Vara’s lawyer, Lee Burrows, told the jury that Vara had 14 prior convictions, two of which were for driving while intoxicated.

Lindsey and Fattig testified that Vara was verbally abusive. Lindsey’s partner, Isidro Perez, testified that Vara threatened to file a misconduct complaint against them. Lindsey, who by that time had retired and was working as a teacher, said that Vara was clearly intoxicated based on his performance during the field tests.

Officer Richard Maffet testified that Lindsey and Perez brought Vara into the police station where Vara refused to take a Breathalyzer test.

Vara testified in his own behalf. He said that he was in bed sleeping when his friend Nunez called from a bar asking for a ride home because he had no car—he came to the bar with a girlfriend, but they had quarreled and she left.

Vara said that when he came to get him, Nunez was drunk and came out of the bar with two open beers. Rather than fight about that and prolong the good deed—he had to get up at 4:30 a.m. for work—Vara decided to just get Nunez home quickly.

A few minutes later, Vara said, Fattig pulled him over. He admitted he expressed disbelief that he had been stopped for driving without a front license. He told the jury he didn’t know that was a violation.

Vara denied drinking alcohol that night and said he hadn’t had a drink for five years. He said that the odor that Fattig and Lindsey smelled was coming from Nunez.

Vara said that if he had failed the physical field sobriety tests, it was because he was bow-legged and had a hard time balancing himself. He also said the street was slanted, which made it more difficult. Vara denied refusing to take a Breathalyzer test. He said he asked to take one at the police station, but the officers refused.

During cross-examination, the prosecution attempted to discredit Vara’s testimony by questioning him about his prior convictions, including possession of marijuana. During closing argument, the prosecution argued that Vara was a “professional intoxicated driver” and that his long list of convictions was evidence that he was not credible.

On March 17, 2007, the jury convicted Vara of driving while intoxicated. As a third-time offender, he was sentenced to 25 years in prison.

His conviction was upheld on appeal. Vara, acting without a lawyer, subsequently filed a state law petition for a writ of habeas corpus. The petition said that the prosecution had failed to disclose that the police department was investigating Lindsey for manipulating drunk driving cases to generate overtime income. In 2005, the year before Vara’s arrest, Lindsey had been paid $100,000 in overtime alone, the petition said.

The petition further claimed that the prosecution had improperly questioned him and made an improper argument about his prior convictions knowing that 12 of the 14 convictions defense attorney Burrows had revealed were misdemeanor convictions and therefore not admissible.

Ultimately, attorney Celeste Blackburn was appointed to represent Vara. Blackburn argued that Vara’s defense attorney, Burrows, had provided an inadequate legal defense by failing to hire an expert to examine the street where Vara was stopped and to determine whether bow-leggedness would have an adverse impact on someone taking field sobriety tests.

Blackburn also noted that Burrows had failed to call Nunez to testify in support of Vara’s account of the evening. Moreover, Burrows had voluntarily told the jury that Vara had 14 prior convictions when only two of those convictions were admissible—the other 12 were for misdemeanor crimes, which are not admissible. In fact, five of them were for driving with a suspended license. During an evidentiary hearing on the petition, Burrows testified that he made the disclosure to the jury “to steal the prosecutor’s thunder,” because he assumed all of the convictions were admissible.

Perhaps most significantly, however, evidence showed that Burrows never sought to determine the background of any of the officers. Had he done so, Burrows would have learned that Lindsey had resigned from the police force in June 2006—nine months before Vara’s trial—because he was facing internal discipline for manipulating drunk driving cases to generate extra overtime income, including the more than $100,000 in overtime pay in 2005. In addition, Lindsey was one of the most frequently reprimanded officers in the Houston police department and had a long history of complaints—some sustained and some not—ranging from citizens alleging physical and verbal abuse to admissions of filing false reports. There were 35 findings of misconduct. Burrows explained that it was not his practice to attack his clients’ accusers.

In January 2016, the Texas Court of Criminal Appeals granted the writ and vacated Vara’s conviction. On September 12, 2017, the prosecution dismissed the case and Vara was released from custody.

– Maurice Possley

