An interview with Xinachtli, a Chicano anarchist communist political prisoner serving a 50-year sentence in the Texas prison system after defending himself from an armed police officer. This interview was originally broadcast as an audio segment by The Final Straw Radio Show, who also formatted it as a printable zine.
Final Straw Introduction:
This segment was first aired on TFSR in 2013 and then again in 2015. We thought it was time to share some of the story of Chicanx, anarchist-communist political prisoner Xinachtli, in his own words. Throughout the segments original audio, I used his state name of Alvaro Luna-Hernandez as he had not yet adopted the moniker Xinachtli, which means “seed” in Nahuatl. Xinachtli is a collective member at and editor of the Certain Days political prisoner calendar.
Xinachtli is serving a 50 year sentence since 1996 in the Texas Department of Criminal Justice for aggravated assault on a Sheriff in Alpine, Texas. The Sheriff was serving a warrant for Xinachtli’s re-arrest at Xinachtli’s home. When questioned on the nature of the warrant, the Sheriff pulled a gun and Xinachtli was able to disarm him and make an escape without harming the Sheriff significantly.
After a few days of man-hunt, his mothers house was surrounded by numerous local, state and federal law enforcement agencies and the house was beseiged. It was only a 9-1-1 call from Xinacthli made stating that he was not being allowed to surrender that caused the troops to stand down and he allowed himself to be taken into state custody.
The grounds for the arrest warrant have since been overturned, but based on the post-facto word of the Sheriff that Xinachtli had pointed the gun at him, Xinachtli was sentenced to 50 years. He’s been determined to be a political prisoner based on his participation in multiple cases against abuse by prison officials and police, his jailhouse lawyering, advocacy for Latinx and other marginalized people in Texas and his political stance that the US and state governments occupying the Southwest of Turtle Island is a racist and illegitimate regime.
Here is featured an interview with Xinachtli that we received from comrades in the Anarchist Black Cross who were doing support work for him. The original interview was incomplete, missing the voice of the interviewer, so we did our best to edit and reconstruct the audio to better fit a conversational format and present his conflicts with the Prison Industrial Complex, his views on his political prisoner status at the time of this interview and his views on his case. More info on his case, plus his writings and ways to get involved in his support campaign can be found at FreeAlvaro.Net.
You can write to Xinachtli by addressing your envelope to:
Alvaro Luna Hernandez #255735
W.G. McConnell Unit,
3001 Emily Drive,
Beeville, Texas 78102
Be sure to use Xinachtli only in written content meant for him, prison staff likely won’t deliver envelopes with Xinachtli written on them.
TFSR: Could you tell listeners about your persecution by law enforcement in Alpine and other parts of Texas and your participation in the Chicano rights movement?
Xinachtli: The history of my involvement in the community organizing, not the original movement, but after back in the 70s and 80s, which led to my my re-arrest – aggravated assault case. That started everything back in Alpine in Brewster County, Texas. Well, you know, my incarceration now, is unjust. I’ve been persecuted by the police in Alpine because of what I was doing and my long history of involvement in exposing police brutality in Alpine. For example, I was a witness to the murder of Ervay Ramos, a 16 year old friend of mine who was shot and killed by Alpine police – Bud Powers, in June, the 12th 1968. And I witnessed the murder of Ramos because I was with him that night. In fact, his case was published by the US Commission on civil rights.
You know, just like everything else, Powers was given the probated sentence. I don’t think he even served a day in jail. I think he passed away a couple of years ago, but he never served a day in jail. And of course, you know, this is just a continuation of a legacy of police brutality against Mexican Americans by the police in a multitude of social injustices that happen in Chicano Mexican American communities and so forth. Like education, racist education, segregation.
TFSR: What was it like to grew up there for you?
Xinachtli: When I was raised in Alpine? I attended the Centennial School, which was a segregated school. I mean, back in even in the 60’s… 68, 67… all the schools were still segregated. That was part of the legacy of hatred that the police always had for me, because I was… in a sense, I was a rebellious youth, you know? I mean, I was seeing police abuse of Chicano youth in the barrio and from that point forward pushed into the criminal justice system at a very young age. I even spend time here close to a facility here when it used to be the Texas Youth Commission. It used to be the facilities for juvenile offenders. And it used to be in Hilltop. I did a year. I think I was 14 years old. I did I did a year then. And, I mean it’s just been confrontation with the police, with the criminal justice system, and so forth. You know? Until until back in 72, 73 I was sent to prison at a very young age again for destroying some police cars. Right there in Alpine. And from that point forward, I mean, it was just have a lot of problems with the police and so forth. Then which led up to this wrongful capital murder conviction, which to this day, I have always proclaimed my innocence, you know, I had nothing to do with it.
TFSR: Can you tell us about that capital murder conviction?
Xinachtli: The robbery and murder of the night clerk at the Ramada Inn in Alpine in September of 1975. It was Capital murder. The state was seeking the death penalty. My court appointed attorney was Melvin Gray, out of the San Angelo. I was charged. My uncle, Juan Herandez was charged. Palmina Hernandez was charged. And allegedly she was the one that turned state’s evidence and put the blame on me, see? But it was her and my uncle who had robbed the clerk and killed him. I had nothing to do with it. I was nowhere around there. But since all the evidence showed that I was never around there. I mean, like the footprints, all the tests that was done on the evidence that was collected by the police never matched. But they never said anything about it. They wanted me. They didn’t want them. She was granted immunity for prosecution. She died in a car accident a few years back. Juan Hernandez, he was convicted in a jury trial in Crane County, but his conviction was overturned on insufficient evidence. He’s also deceased.
Okay, so see? The state was seeking the death penalty. The jury couldn’t agree on the death penalty. So the state waived the death penalty during the punishment phase and they said “well just give him a life sentence. That’s cool.” So the jury gave me a life sentence, but the state was seeking the death penalty. And they had just opened the jail in Fort Stockton. The brand new jail, but they had me housed in Pecos, Texas. Close to my trial, they they move me to the new jail in Fort Stockton. Pecos County that’s Pecos County Jail.
TFSR: Here, Xinachtli tells us a bit about his most recent conviction, garnering him the 50 year sentence, and what led up to it.
Xinachtli: So when the jury found me guilty, I was awaiting sentencing. Me and three other inmates overpowered the jailer and took his gun, locked him in the cell, open all the cell doors for all the prisoners and told them they could leave they wanted to. And we took the jailer's car and we drove all the way through Marathon to the Big Bend National Park and into Mexico. You know, of course, there was no bridge there at the Big Bend National Park. So we left the car and we swim across the river into Mexico. When they saw the car two or three days later through the air, because there was a big manhunt for us. They saw the car. They started trailing us and…. Texas Rangers, FBI, the Mexican police. So when they accosted us on the other side of the river…. we had to shoot out because we had…. I took all the Sherriff’s arsenal. I had all the weapons from the Sheriff Arsenal. I took them. Machine gun, and shot guns, and weapons, pistols and all that. So when they came up on us, we started shooting. Nobody was hurt, nobody was shot, nobody was killed. We ran out of bullets. And that’s when they apprehended us brought us back across the river. I think we were what? Two, three miles into into Mexico? Right there in Santa Elena, Mexico. And they brought this back and that’s when they had me handcuffed and in leg shackles and all that. And that’s when they beat me up.
TFSR: And at that point, some of the officers saw the severity of the beating you were getting and reported to higher authorities to save your life. Right?
Xinachtli: Yes, some of the officers saw the beating, and they went and called the Justice Department. They told them to go check on me because they they thought I was dead. So that’s when the Justice Department Criminal Civil Rights Division got involved in the case. And they indicted Hill and May. And prosecuted him in Federal Court. John Pinkney. He’s in private practice now in San Antonio. John Pickney, he was the assistant US Attorney handling the case. Although I never did testify against him because being said that it was a trial strategy. He never called me to testify against them, but they weren’t convicted. The other inmates did testify against them. Because because they were first offenders and they had no criminal record. I already had… at that age, I was 22 years old. But during all this time I became I became politically aware inside prison. You know, I was involved in the Ruiz trial and the Ruiz case. You know, we went to two federal courts to testify on behalf of all all Texas prisoners and so forth.
I was on parole on this conviction. March 11 of 1991. I was paroled after serving 16 years in DDC. And I went to Houston. I was very involved in community organization. You know? I was a delegate for the United Nations Commission on Human Rights. I organized a lot of civil rights groups and so forth. Married Elizabeth Perillo. And then after a few years, we had a divorce and I went back to Alpine. And when I returned to Alpine that’s when the police started harassing me.
TFSR: Xinachtli talks about the aggravated robbery charged that the Sheriff used to legitimize the warrant for Hernandez’s arrest.
Xinachtli: If it hadn’t been for the aggravated robbery case, there would have never been the assault case. Some drunk guy in a bar said that I had snatched some money from his from his hand. And the bartender was right there witnessing everything. And he said that the drunk man was lying. Because he witnessed everything. He said, he followed me and him outside. And he had a wad of money in his hand and the wind blew the money up from his hand, because it was real windy on the outside of the bar. And because I brought all these witnesses in at a pre-trial hearing, I was acting as my own attorney. They had no choice but to have it dismissed. They dismissed that case. But the assault had had already happened. I mean, it was it was as bogus as they come.
TFSR: So, this 50 year sentence that you’ve been serving since 1996. Tell us about it.
Xinachtli: This new sentence stems from my act of self defense against Sheriff Jack McDaniel. He’s also deceased. He was the sheriff of Alpine. And I was on parole up when I was charged with aggravated robbery case and made bond. He goes to my house to arrest me and he gets mad because I asked him for the copy of the warrant of arrest. I was never notified of the withdrawal or anything. So when I questioned him, he went for his gun. And you know, when he went for his gun, I took the gun away from him. I disarmed him. You know, to be honest with you, I was scared. I thought he was gonna shoot me. Because I have seen all this brutality from all of them. You know what I’m saying? I mean, I had seen when when Ron was was killed, I had seen a lot of brutality from the police. You know what I’m saying? Well, I took the gun and I ran. And then about a few blocks down the road. My wife picked me up, and she took me to Marathon, 30 miles away to the Marathon Post. On our way back she was arrested. See, she was pregnant, then she was expecting a child. Alvaro Jr. On our way back she was arrested and charged with hindering apprehension. I was indicted for the aggravated assault on the Sheriff. So after, you know, after that I had a jury trial. They had a change of venue to Odessa, Texas, and I had a jury trial and I was convicted on one count of aggravated assault on Sheriff McDaniel and not guilty on another account of allegedly shooting a police in the hand, Sergeant Curtis Hines. And I was given a 50 year sentence.
But the the old…. the ’75, ’76 conviction was used as part of the justification for increased punishment. The aggravated element comes in when the sheriff said that I pointed the weapon at him. The way it happened, really, by me disarming him and fleeing from the scene… It’s not aggravated. See, the aggravated even though it was a weapon, I never used the weapon. See what I’m saying? But he’s saying that I took the weapon away from him, and pointed the weapon at him, and threatened him. See? That’s what makes it aggravated. KOSA TV channel 7 in Odessa did a live interview because when I fled the scene, they had a manhunt for me, and it was broadcasting all throughout West Texas. They were they were hunting for me. There was a manhunt for me. So when KOSA TV goes to interview the Sheriff initially… he tells them exactly what happened! That I disarmed him, took his gun and fled, which is true. You know? I disarmed him. But I never threatened him with it. I never pointed the weapon at him.
My hired trial attorney, Tony Chavez out of Odessa, subpoenaed the video. And I remember as if it was yesterday where the news anchor Daphne Downey out of Odessa KOSA TV came into the courtroom. She had a copy of the VCR video and they was gonna play that before the jury. But it was never played before the jury. Mysteriously, this video has come up missing. Nobody can locate it. Daphne Downey from KOSA TV said that since they moved location to another building, that all of their videos, all their archives were donated to the University of Texas at the Permian Basin, the journalistic department. Twitch and a lot of other people have tried to help me locate that video, but nobody seems to know where it’s at.
TFSR: Xinachtli, is there anything that reporter could do if the actual videotape of the Sheriff’s testimony is missing?
Xinachtli: If the reporter can recreate, you know, what the Sheriff relayed to him then. See, because there’s partial testimony. In fact, even some of the some of the offense reports that the sheriff wrote that initially, he told the truth: that I never threatened him with a weapon. I just disarmed him.
TFSR: And when did the Sheriff’s story change?
Xinachtli: After he talked to the District Attorney. Because probably what happened is that the District Attorney told him “Well, I mean, it’s more serious if you say that he used the weapon against you, and threatened you with it. That makes it aggravated, that makes it a first degree felony, which carries a more aggravated sentence, a harsher sentence.” And that’s exactly what happened. See? Because at that time he started… the sheriff started filing all kinds of charges on me. For example: He charged me with disarming him. He charged me with assault. And then he charged me with resisting arrest. I mean, he just kept finding all kinds of charges on me. And then he finally charged me with aggravated assault with a deadly weapon. Which was the more serious of all the charges. But in a lot of his police reports, even his pretrial deposition that he gave in the case.
Another thing about my lawyer, he was a paid lawyer. Tony Chauvez was a hired lawyer. I think it was about about two months after I get convicted. The federal government hits him with a Rico Indictment for drug distribution, drug conspiracy, involvement with a with a Ojinaga Cartel, Midland Odessa Cartel. They issue 20 some count indictments against him and he immediately enters into a plea bargain with the federal government and pleads guilty. He agrees to surrender his law license, and he gets 30 months in federal prison and he was disbarred from the practice of law. See, at that time… at the time of my trial, the federal government had been investigating him for over five years. And in fact, his home and his law offices were being wire tapped.
I have never been able to obtain copies of those wiretaps. Because my theory of the cases is that if the state and the federal government law enforcement agencies were working together in this big criminal conspiracy out of West Texas, involving the use about 30 or 40 defendants. If they were working together then the prosecutor that prosecuted me knew that Tony Chavez was under investigation by the federal government, because the case started as a state case. All these legal grounds that I had, like the suppression of evidence, the wire taps, the lawyer being under investigation being convicted.
Some of those issues have never been really fully developed, because some of the evidence…. I don’t even know. Because I’ve never had a chance to get a hold of all this evidence, like the wiretaps on his office. What was the nature of investigation? You know? There are some people that have filed some Freedom of Information Act Requests. And, the state and federal governments, they have released some documents, but they haven’t released all of the documents, and they’re claiming exemptions on the other documents. Refusing to release them. They have deleted some of this information, because, you know, I’ve always said that there was a conspiracy between between the police. The police didn’t want me back in Alpine. They knew that I was back in Alpine. And as soon as I got back from Alpine from Houston, they started harassing me. They had me under surveillance. They even sent this heroin addict, by the name of Mary Valencia, to try to entrap me. She later told me this. You know? But the lawyer never called her as a witness during the trial.
TFSR: Who was Mary Valencia?
Xinachtli: Well, see. She was a worker at the motel in Alpine. I was staying at this motel in Alpine. Bienvenido Motel. And she was a custodial worker there. She used to go in and clean rooms in the motel. She was a local heroin addict. I mean she had a bunch of theft charges. And, she later told me that the police had approached her to try to set me up. The police had approached her to find out what I was doing. Because at that time, I was doing some freelance paralegal work for an attorney out of Fort Worth by the name of Alex Tandy. You know, and I used to spend a lot of time in the law library at the (unclear) State University or at the county Law Library. In fact, one day, when I was at the Law Library in the county courthouse I saw Sheriff McDaniel as he was walking by, and he looked at me and he said… These were his exact words. He said ”Well, I see you're back.” I told him, “Yes, I’m back.” And he said, “Well, just keep your nose clean.” I told him “Well, the people who need to keep their nose clean are the police, and you! Because all you do is steal from the county. That’s what you do. Steal from the county and beat Mexicans down.” And you should have seen him, he got really agitated.
From that point forward, I mean, they continuously stopped me on the streets. I mean, they even had the Border Patrol drug dog run through my car. You know, they they were all under the impression that I was using drugs, that I was selling drugs, because I had started dating this girl who was known for drug use. Maria Imelda. Imelda, was her name. She was an old friend. And, that’s why they always said that I was using drugs. That I was a drug addict, and all this. Which was, you know, I was just trying to, I was dating her, and I was just trying to take her off the streets. In fact, she was the one that got pregnant and had my child.
You know, she was the one that was there at the at the house when Sheriff McDaniel came up that morning to try to arrest me. She was nine months pregnant. Two weeks later, she had the baby when I was in jail. See? And she testified on my behalf, even though they told her that if she testified…. they tried to intimidate her by by threatening her that if she testified on my behalf, that they were going to charge her too. She said “I don’t care. I’m going to tell the truth.” So, you know, she testified. And she testified to the truth. That I never pointed the gun at the sheriff.
TFSR: What is the likelihood of your parole?
Xinachtli: Well, see? I’m under the new law, which is the Half Law. That’s the new aggravated law. You got to serve 25 calendar years out of 50 to be eligible for parole. That’s just to be eligible for parole. You know, that’s why they The Half Law. You get 100 years, you got to do 50 calendar. If you get 50, you got to do half. 25. So that’s the aggravated element of a felony first degree case where there’s a weapon involved. Where you use or exhibit a deadly weapon. You know? And there is a factual finding, an affirmative finding. What they call an affirmative find in the use of a deadly weapon that automatically makes the case aggravated. Under the Half Law, you got to do, you got to do half before you even are eligible for parole.
And my case is… see? I’m considered a political prisoner. I’m recognized internationally as a political prisoner because of my community involvement in the streets, as an organizer, as somebody who would protest, police brutality, protest injustices and so forth. You know? I mean, I was a delegate before the United Nations Commission on Human Rights, because of that involvement with my community. When I was in Houston, my case has been mentioned in law journals and books and so forth, including my Jailhouse Lawyering back here in prison, Mumia Abu-Jamal and his book *Jailhouse Lawyers*. He mentioned me. There’s that book by Matt Meyer, *Let Freedom Ring*. They also chronicle my my case from going all the way back to to the Alpine case.
TFSR: So, Xinachtli, where do you stand with your appeals process?
Xinachtli: And of course, I’ve exhausted one full round of appeals. You know? When I was convicted, I appealed my case to the Court of Criminal Appeals. They denied it. I filed in Federal Court. I went to the Fifth Circuit US Court of Appeals. I went to the Supreme Court. I’ve never had licensed assistance from an attorney on post conviction. I did all the work myself. You know, I never was able to collect all the evidence that was withheld. Although I did ask for it. They never they never released it. You know, like the wire taps, all the other evidence, because I know, there’s a lot of evidence that that could be developed on the prior convictions. If I could reopen that case… that would certainly knock out this other case. But I have to take it against one step at a time, you know. I mean, right now I’m in a Control Unit back here. I’ve been back here for 10 years on basically what they call administrative segregation. I’ve been in solitary confinement for the last 10 years back here on this unit on this new sentence.
In the cell by myself, when I go into recreation, I go by myself. Every time I exit the door, the cell door, they have to handcuff me with my hands behind my back. We get searched every day. I get back three times, two times, a week outside recreation in a yard. Which is… you know a cage. That’s all that is, cement, high walls, all you can see is the sky. The day room is in front of the cell. You know, I mean, you can see the next inmate who comes out to recreation, but that’s about it. There’s no contact. There’s no… I mean, you go to and recreation for an hour a daily. Like this morning I was out there this morning. After you finish rec, you go to shower, and then they put you back in a cell. You know, this is just it, I mean, you go out once.
TFSR: Can you talk to the other inmate as you pass? Can you carry on a conversation?
Xinachtli: Well, I mean, you could holler at him. But I mean, that’s all you hear: hollering. Back in this facility in fact, they just had one that hanged himself last week. There’s a lot of people who have hanged themselves. Who have committed suicide. And I have always complained about that. You know, I’ve always complained. But no. The repression. The the sensory deprivation, the isolation. I mean, we don’t have access to TV. We got access to a typewriter. We got access to a radio, small little radio, but you got to buy those on your own. You know, we have no access to television. Yes, we get Law Library, about three times a week. We order a Case sites from the law library. And that’s how I do my legal work. Well, there’s no limitation on correspondence, but there’s a ten person limitation on your visitation. And you can have visits every week, as long as you maintain a clear disciplinary record. Because if you violate serious disciplinary rules, then they’ll send you to another part. And you have to serve 90 days segregation, minus all of the other privileges. They totally strip you of your property and everything.
TFSR: Xinachtli, before this interview [in late 2012], when was your last visitation?
Xinachtli: I hadn’t had a visit in a while. uhh… years! Yeah, I think… Let me see the last visit I had. I’ve had a few friends that would drop by. Twitch has come by. A friend from Canada, Sara used to drop by every now and then. I had some family members sometimes come, but I hadn’t had a visit… you know, in a while. Very little. The expression that you find is through pen and paper. It’s through my typewriter. And I mean, you could sense through, I guess, through my writings… the passion, the anger, you know, the despair. Still, there’s…. I cling to hope. You know, because I’ve seen a lot of injustices. What the system has done to a lot of people who speak out against it. They try to crush you. They tried to break your spirit. I mean, They try to just isolate you and just crush you. You know what I’m saying? That’s the power of the state. And I realized that. But no prison or no solitary cell will be able to break my spirit.
I know that I’m right. I know that my cause is just. And I know that. I know that the police assaulted me. But I have no power. You know? They have the political power. They own the court systems. How many Mexicans are killed down across the border every day? And who gets charged all the time? Ya know? We do. So that’s the power. That’s the power of the state and the political process. I know. That’s the only hope that I have like reaching out to people who who have a sense of justice. You know, people that I can appeal to for a sense of justice. Because I know that there’s a lot of people out there, powerful people, that don’t want to see me free. Because they know what I can do. They know the power of my spirit. They know what I could do as far as organizing people making people stand up to fight injustice.
And that’s what I do, that’s what I used to do. If you don’t conform to the system, to the political system. If you step outside the political system and you seek independence from the political process, from the social economic process, then you’re a troublemaker and the only place they want to put you in jail or put you in a grave.