Case Closed

Wal-Mart finds the ultimate bargain: beating a family's $20 million verdict

The verdict was a stunner: A jury awarded the Aguilera clan $13 million, plus $7 million in interest. The family was jubilant. Wal-Mart's lawyer, Jaime Drabek, was flabbergasted.

Seven years before that 2001 verdict, a Wal-Mart security guard had identified 31-year-old Irene Aguilera as part of a major shoplifting ring. The Houston housewife had been thrown in jail on a bond so high it took her family 28 days to get her out. When prosecutors dropped the charges after months of house arrest, Aguilera sued. In poor health, she died before the case went to trial, but a jury still decided her family deserved sizable damages for malicious prosecution.

If John Grisham had authored Aguilera v. Wal-Mart, that would have been the ending: An impoverished innocent and her family bring a big corporation to justice. The corporate lawyers slink off to their cubicles; the good guys celebrate with a cool $20 million.

Ignacio Aguilera Jr. (center, with his nephew and father) had to stop his mother from killing herself.
Daniel Kramer
Ignacio Aguilera Jr. (center, with his nephew and father) had to stop his mother from killing herself.

But real life seldom has such simple finality. For the Aguileras, the end came three years after the jury's verdict, four years after Aguilera's death, ten years after the arrest that might have changed their fortunes forever.


Houston Police Detective Mike Hamby first cracked the case of the Mickey Mouse Gang. Hamby had been in the burglary and theft division for a year when in June 1994 he was given the shoplifting case of a preteen kid. When he ran the youngster's information on police databases, he got hit after hit: different arrests, different addresses, different adults who'd picked him up at the station.

In no time, he'd linked the kid to 27 suspects and thefts from San Antonio to Dallas. "When it was all done with, I linked 80 cases to that kid," Hamby says. The group of thieves had been operating since 1991, he says, hitting as many as three stores a day and swiping up to $3,000 in merchandise at each one. The "Mickey Mouse" tag came from one of the youths involved, a boy whose prominent ears were featured in store surveillance tapes across the state.

The method was always the same. Adults in the gang lined shopping carts with poster board, then preteen boys filled the carts with pricey electronic equipment, clothes and toys. While adults distracted the clerks, the kids slipped the merchandise past the checkout and into getaway cars idling outside. If they ever got busted, the adults scattered; the kids typically got a slap on the wrist.

Hamby believed the gang's base was Sherman Street, in a poor neighborhood off Wayside Drive on Houston's east side. He ordered street surveillance and told stores to stay on high alert.

A few weeks later, the ring hit a Wal-Mart in suburban Austin. The store's security guard, Wayne Cruickshank, detained a preteen boy. Cruickshank thought he could positively identify more participants, so Hamby headed to the police station in Round Rock, armed with driver's license photos and mug shots of his suspects.

As Hamby would later testify, he spread them on the table, and Cruickshank picked out six people. One was Irene Aguilera, who lived in a ramshackle duplex on Sherman with her husband and three kids.

It didn't take long for Aguilera to turn up. Her wheelchair-bound mother was guardian of the preteen boy Cruickshank had collared. When Round Rock police summoned the old woman to pick up the boy, Aguilera accompanied her to the station.

Solely on the basis of Cruickshank's identification, Aguilera was promptly arrested, with bond set at $150,000. She was jailed for a month until her husband, Ignacio, a Mexican immigrant, found Houston attorney Jim Sharp.

Sharp got the bond reduced to $25,000. Aguilera was released from jail but put on house arrest for the next four months, required to stay within 40 feet of the telephone in her home.

Aguilera had always been high-strung. She had nervios, she said, and she suffered from scleroderma, a rare disease that causes the skin to harden and the hands to clench. The month in jail seemed to send her over the edge. Ignacio Jr., then 12 years old, caught her with a knife, threatening to kill herself, and had to wrench it away.

"She would just sit in the love seat, crying and crying," he says. "She was always scared."


Sharp had figured Aguilera's case was a routine rap of minor shoplifting that would probably end in a plea agreement. Instead, he quickly began to suspect something was amiss.

A Dallas native, Sharp mixes a good-ol'-boy drawl with distinctly liberal sensibilities. He's now running for an appellate court seat as a Democrat, and his office walls display photos of Willie Nelson and various Kennedys -- next to his "Bush is a Punk-Ass Chump" sticker.

Sharp learned that Aguilera's postman recalled talking to her on her front porch in Houston on the same afternoon she was accused of shoplifting in the Austin area.

Furthermore, Cruickshank, the security guard, had written a report on the day of the incident, saying he'd seen two juveniles and one woman. Two days later, under the approving eye of Wal-Mart's corporate representative and several Houston cops, he identified Aguilera and four other adults never mentioned in his first report.

And police eventually had to admit that the Wal-Mart surveillance video had disappeared. Cruickshank claimed he'd turned it over, but they had no record of receiving it.

"I've developed a real good nose," Sharp says. "And when I asked to see this videotape and everybody started doing this dance, the 'nose detector' went off."

That October, the Williamson County assistant district attorney announced she was dropping Aguilera's case. Her memo noted there was nothing to place Aguilera at the scene except Cruickshank's words.

Prosecutors also had to drop charges on another woman Cruickshank had identified. But detective Hamby's investigation paid off with felony organized-crime convictions against nine defendants, including Aguilera's brother.

Aguilera was indicted in Harris County as well, but prosecutors there also dismissed charges against her.

Hamby still contends that she was part of the ring. He blames Sharp for dragging out the case with repeated resets as the prosecution witnesses, low-paid store clerks, gradually found other jobs.

"It's not a career for them," he says. "They moved on, and we lost our witnesses."


In 1995, Sharp filed suit against Wal-Mart and Cruickshank on Aguilera's behalf, alleging malicious prosecution, negligent hiring and intentional infliction of emotional distress. He sued in Starr County of South Texas, a heavily Hispanic area. (State law at the time permitted such a venue because Wal-Mart had a store there.)

In the six years leading up to trial, Aguilera died of complications from her chronic condition. Her husband, Ignacio, was so badly injured in a fall at his construction job that he's been on worker's compensation ever since. Wal-Mart fired Cruickshank for kiting checks, then later rehired him.

Jurors heard five days of testimony, then deliberated for just one hour before returning their verdict: Aguilera's family would get $13 million. Since it had taken five years to get to trial, the judge tacked on $7 million in interest.

"I was flabbergasted," says Drabek, Wal-Mart's attorney, "just completely blown out of my socks."

Sharp says he had offered to settle for $1 million when he filed the suit. "They'd scoffed at that," he says.

Cruickshank's credibility had crumbled. In an earlier deposition, he'd claimed to be a high school graduate and Vietnam War veteran who had received a Purple Heart as well as a special presidential award for "outstanding actions in the field." He told Sharp he couldn't elaborate on his honors. "Unless the president says so, I won't tell anybody."

In trial, Cruickshank admitted that he'd never graduated high school, never gotten any service awards or even been to Vietnam. It wasn't hard to connect the dots: If he'd lied about his résumé, why wouldn't he also lie to impress his superiors and help bust a major shoplifting ring?

For his efforts, Wal-Mart had given Cruickshank a 25-cent hourly raise.


The euphoria of the verdict dissipated slowly, in a series of obstacles and reversals that made it abundantly clear: Winning $20 million doesn't mean getting $20 million.

First, Sharp conceded that the jury erred in its calculations by twice awarding Aguilera money for the same damages; $13 million should really be $6.5 million, he admitted.

Then, in June 2003, the San Antonio-based court of appeals issued a 2-1 decision that reversed the jury's decision. Justices found insufficient evidence to support the verdict. The company owed the Aguileras nothing.

The appellate opinion didn't claim Aguilera was guilty, only that Cruickshank had honestly believed she was. "The question is not what the facts were, but what the defendant honestly and reasonably believed the facts to be," Justice Karen Angelini wrote.

Sharp appealed that decision to the Texas Supreme Court, which declined to hear the case this spring. His motion asking them to reconsider attracted support from unlikely quarters: the Combined Law Enforcement Associations of Texas, which represents 14,000 officers across the state.

The association argued that private security guards like Cruickshank must be held to the same standards as law enforcement officers.

"One does not check one's constitutional rights at the door of private commercial enterprise; there must be REAL probable cause to detain until the police arrive; and there must be REAL probable cause to prosecute thereafter," the organization argued.

But the court would have none of it. On July 16, it rejected Sharp's motion.

And that, finally, was the end.

The family would get nothing.

Sitting on the same love seat that Irene Aguilera was once bound to by house arrest, Ignacio Aguilera Jr. hardly seems to understand. "We didn't really go for the money," he explains. "We did it because Wal-Mart was trying to accuse my mother of things she didn't do. Just to clear my mom's name up. And if there's any more to do, I'll show up again."

Sharp carefully explains to him that the Supreme Court was the last hope. "We've gone to the end of the trail. We can't do any more. You cannot look for the courts to protect you."

"I know that," Ignacio Jr. says. "You know I know that."

With his son translating, Ignacio Sr. says in Spanish that he misses his wife, every day. But he's not angry at Wal-Mart.

"What's the point of getting mad?" he says. Then Junior adds his own take: "They're just doing their job. I still shop at Wal-Mart. I don't have no grudge or anything. I've even filled out an application to work there."

Sharp shakes his head. He won't shop at Wal-Mart, he admits later, and he has a hard time understanding the family's forgiveness.

He spent $180,000 of his own money on the case, he says. And he never got paid a penny.

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