Solis-Gonzalez, Luis

~ "-· RECEIVED IN •

.;,

~ .WR-82,831-01

COURT OF CRIMINAL APPEALS

COURT OF CRIMINALAPPEALS AUSTIN, TEXAS

Transmitted 3/11/2015 4:50:31 PM

March 12,2015 Accepted 3/12/2015 9:04:46 AM

' ABELACOSTA

NO. WR-82,831-01 CLERK

ABELACOSTA,CLERK

IN THE

COURT OF CRIMINAL APPEALS FILED IN

OF TEXAS COURT OF CRIMINAL APPEALS

JUL 29 2G15

IN RE LUIS SOLIS-GONZALEZ Abel Acostc;t. Clerk

THE STATE'S (REAL PARTY IN INTEREST) RESPONSE

TO RELATOR'S PETITION FOR WRIT OF MANDAMUS

TRIAL COURT CAUSE NUMBER 20120D04103

IN THE 243rd DISTRICT COURT OF EL PASO COUNTY, TEXAS

JAIME ESPARZA

· DISTRICT ATTORNFfKis document contains some

34th JUDICIAL DIS~~l' ti:at are of poor quality

at the time of imaging.

LILY STROUD

ASST. DISTRICT ATTORNEY .

DISTRICT ATTORNEY'S OFFICE

201 EL PASO COUNTY COURTHOUSE

500 E. SAN ANTONIO

EL PASO, TEXAS 79901

(915) 546-2059 ext. 3769

FAX (915) 533-5520

EMAIL lstroud@epcounty.com

SBN 24046929

ATTORNEYS FOR.THE STATE

The State requests oral argument.

IEJLJECftONIIC

UCC(Q)Im

• •

IDENTITY OF PARTIES AND COUNSEL

Relator - Luis So lis-Gonzalez, represented in this mandamus proceeding

and underlying criminal case by Joe A. Spencer, Jr., 1009 Montana Avenue, El

Paso, Texas 79902, and Joshua C. Spencer, 1009.Montana Avenue, El Paso, Texas

79902.

Respondent- Honorable Luis Aguilar, Judge, 243rct District Court of El

Paso County, Texas, 500 E. San Antonio Ave., 91h Floor, El Paso, Texas 79901.

Real Party in Interest- The State of Texas, District Attorney, 341h Judicial

District, represented in this mandamus proceeding by District Attorney Jaime

Esparza and Assistant District Attorney Lily Stroud, 201 El Paso County

Courthouse, 500 E. San Antonio, El Paso, Texas 79901, and represented in the

underlying criminal case by District Attorney Jaime Esparza and Assistant District

Attorneys Denise ButterWorth and James Montoya, 201 El Paso County

Courthouse, 500 E. San Antonio, El Paso, Texas 79901.

11

• •

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 11

INDEX OF AUTHORITIES V-Vl

STATEMENT OF THE CASE Vll-IX

STATEMENT OF FACTS 1-14

STATE'S RESPONSE TO RELATOR'S PETITION FOR WRIT OF

MANDAMUS: Article 38.43 only mandates the testing of biological evidence

as defmed by subsection (a), and the trial court is afforded discretion as the

"gatekeeper" in determining whether the State has rebutted the presumption

that any biological material the defendant requests to be tested constitutes

biological evidence required to be tested. In this case, the trial court's initial

order granting the State's request for DNA testing did not constitute a

determination that the evidence the State sought, on its own initiative, to be

tested was biological evidence required to be tested under subsection (i).

Additionally, the record is devoid of any specific request by So lis-Gonzalez

for DNA testing of certain untested biological materiaL But even assuming,

arguendo, that Solis-Gonmlez made any such a request, the State sufficiently

rebutted any presumption that tlltere existed untested biological material that

constituted biological evidence required to be tested. Consequently, the trial

court did not abuse its discretion, or violate a ministerial duty, in determining

that, in the absence of biological evidence required to be tested, it would not

further delay Solis-Gonmlez's triaL 15

ARGUMENT AND AUTHORITIES 15-49

PRAYER 50

SIGNATURES 50-51

CERTIFICATE OF COMPLIANCE 50

lll

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CERTIFICATE OF SERVICE 51

APPENDICES A-L ATTACHED TO END OF RESPONSE

IV

• •

INDEX OF AUTHORITIES ·

STATE CASES

Bell v. State, 90 S.W.3d 301 (Tex.Crim.App. 2002) ..................... 44, 47

Bennett v. Paxson, 932 S.W.2d 81 (Tex.App.-E1 Paso 1996,

or.ig. proceeding) .................................................. 16

Board ofPardons and Paroles ex rei. Keene v. Court ofAppeals

for the Eighth District, 910 S.W.2d 481 (Tex.Crim.App. 1995,

orig. proceeding) .................................................. 16

Chase v. State, 448 S.W.3d 6 (Tex.Crim.App. 2014).. . . . . . . . . . . . . . . . . . . 17-18

Getts v. State, 155 S.W.3d 153 (Tex.Crim.App. 2005) ................... 17-18

Pitts v. State, 916 S.W.2d 507 (Tex.Crim.App. 1996) ...................... 46

Prible v. State, 245 S.W.3d 466 (Tex.Crim.App.), cert. denied,

555 U.S. 833, 129 S.Ct. 54, 172 L.Ed.2d 55 (2008) ...................... 43, 47

Rivera v. State, 89 S.W.3d 55 (Tex.Crim.App. 2002) ....................... 44

State ex rei. Healy v. McMeans, 884 S.W.2d 772 (Tex.Crim.App. 1994,

orig. proceeding) .................................................. 16

Texas Farmers Ins. Co. v. Cooper, 916 S.W.2d 698 (Tex.App.-El Paso

1996, orig. proceeding) ............................................. 16

Thieleman v. State, 187 S.W.3d 455 (Tex.Crim.App. 2005) .................. 46

Whitaker v. State, 160 S.W.3d 5 (Tex.Crim.App.), cert. denied,

543 U.S. 864, 125 S.Ct. 194, 160 L.Ed.2d 106 (2004) ............... : .... 43, 47

v

• •

STATE STATUTES

TEX. CRIM. PROC. CODE art. 38.43(a) ................................ 19, 43

TEX. CRIM. PROC. CODE art. 38.43(i) ................................ 18, 37

TEX. CRIM. PROC. CODE art. 38.43(j). . . . . . . . . . . . . . . . . . . . . 20-22, 24-25, 35, 38

TEX. CRIM. PROC. CODE art. 38.43(1) ................................... 31

TEX. CRIM. PROC. CODE art. 38.43(m) ............................ 20, 25~26

SESSION LAWS

Act of 2013, 83rd Leg., R.S., ch. 1349, § 3, 2013 Tex.Gen.Laws. 3587 .......... 18

LEGISLATIVE MATERIALS

ENROLLED BILL SUMMARY, Tex. S.B. 1292, 83rd Leg., R.S. (2013) ............. 27

' '

HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. S.B. 1292,

83rd Leg., R.S. (May 20, 2013) ............................. 27-29, 35, 37, 43

SENATE COMMITTEE REPORT, Texas Senate Committee on .

Criminal Justice, Tex. S.B. 1292, 83rd Leg., R.S. (April11, 2013) .......... 24-26

Tex. S.B. 1292 (introduced version) ...... ' ............................. 24

· Tex. S.B. 1292 (enrolled version). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26, 28

VI

• •

STATEMENT OF THE CASE

Luis So lis-Gonzalez, relator, was charged by indictment with capital murder

on August 28, 2012. See (tab A of relator's petition). On October 17, 2012, the

State filed notice of its intent to seek the death penalty. See (State's Appendix A).

The State subsequently filed, on or about April22, 2014, a ''Motion for DNA

Testing by the Texas Department of Public Safety, Crime Laboratory pursuant to

T.C.C.P., article 38.40," which the trial court granted. See (tabs B-C of relator's

petition). On May 13, 2014, the trial court entered a written order setting

September 1, 2014, as a deadline for the completion of that DNA testing. See (tab

D of relator's petition). On June 5, 2014, the DPS lab advised the trial court by

letter that it would be unable to complete the DNA testing by the court-ordered

deadline and requested an extension of time until June 1, 2015, to complete the

testing. See (tab E or relator's petition).

On June 25, 2014, the trial court advised the parties of its intent to have a

pretrial hearing to determine the applicability of article 38.43, to address whether

the Legislature considered the delays the recent amendments to article 38.43

would cause the DPS lab, and to consider how those amendments would affect the

\

" ... Speedy Trial rights of the accused and the State[.]" See (tab F of relator's

petition). The trial court held this pretrial article 38.43 hearing on October 2,

Vll

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2014, during which it heard evidence and argument. See generally (State's

Appendix B- reporter's record of the October 2, 2014, hearing). In a letter to the

defense on October 6, 2014, the trial court requested that the defense identify any

necessary piece of evidence it believed the State failed to submit for testing and to

provide the justification for such testing. See (State's Appendix C). The record is

devoid of the defense's response to this request.

On January 9, 2015, the tria·l court entered a written order opining that

article 38.43 "... did not mandate that every single piece of evidence seized by law

enforcement in a [death-penalty case] must be forensically analyzed" and that the

-

evidence presented by the State at the ·october 2, 2014, hearing, showing the DNA

results of evidence that had already been tested, demonstrated " ... substantial

compliance with the intent of the statute." See (tab G of relator's petition).

Explaining that So lis-Gonzalez had been instructed to identify any necessary piece

of evidence the State failed to submit for analysis and the justification for such

testing and that So lis-Gonzalez's response did not warrant further delay of his

trial, the trial court ordered that Solis-Gonzalez's.trial setting remain on the court's

docket for May 8, 2015.

Vlll ·

• •

Alleging that the trial court violated a ministerial duty by refusing to delay

'

his trial setting until after the DPS lab completed its DNA testing of all the

evidence submitted by the State, So lis-Gonzalez now seeks mandamus relief from

this Court.

IX

• •

STATEMENT OF FACTS

The indictment in this case alleged that So lis-Gonzalez committed capital

murder by intentionally and knowingly causing the deathsofMarysol Saldivar,

Eric DeSantiago, and C.H during the same criminal transaction. See (tab A of

relator's petition). Specifically, the indictment alleged that Soli~-Gonzalez caused

\

Saldivar's death by striking her about the head with an unknown object, that he

caused DeSantiago's death by striking him about the head with an unknown object

and by stabbing him about the body with a knife, and that he caused C.H 's death

by strangling her with a ligature. See (tab A of relator's petition).

In its initial motion for DNA testing, the State requested that the trial court

order the DPS lab to " ... test all items of evidence submitted by the El Paso Police

Department containing biological evidence for DNA comparison, pursuant to

T.C.C.P. Article 38.43." See-(tab B of relator's petition). In granting the State's

/

motion, the trial court ordered the DPS lab to "... test all items submitted by the El

Paso Police Department containing biological evidence for DNA comparison."

See (tab C of relator's petition). The State's motion and the trial court's order do

not indicate that the State and the defense conferred, and agreed, about what

evidence contained biological material or that the trial court determined that any

.1

/

• •

evidence the State submitted for testing constituted biological evidence required to

be tested under article 38.43.

In the trial court's May 13, 2014, order setting a deadline for the completion

of ti?-at DNA testing, the trial court, first noting that it had previously granted the

State's motion for DNA testing, further ordered that"... all DNA testing in

reference to [this case] be completed by September 1, 2014." See (tab D of

relator's petition).

On June 5, 2014, the DPS lab advised the trial court, by letter, that it would

be unable to meet the September 1, 2014, deadline, explaining that it lacked the

resources to process the ''high volume" of evidence it received from the State by

the court-ordered deadline. See (tab E of relator's petition). The DPS lab

requested an extension of time until June 1, 2015, to complete that DNA testing.

See id.

On June 25, 2014, the trial court advised the parties of its intent to have a

pretrial hearing to determine how article 38.43 would be applied in Solis~

Gonzalez's case, to address whether the Legislature took into consideration the

delays the recent amendments to article 38.43 would cause the DPS lab, and to

consider how those amendments would affect the " ... Speedy Trial rights of the

accused and the State[.]" See (tab F of relator's petition). The trial court further

2

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advised the parties that it intended to also address the issue of whether " ... the State

of Texas is required to submit to a laboratory for forensic analysis, every piece of

biological evidence they seized at the crime scene." See id.

At this pretrial article 38.43 hearing, which was held on October 2, 2014,

the prosecutor, during her opening comments, explained that the State had

submitted every piece of physical evidence that contained biological material to

the DPS lab for DNA testing, but opined that if the State and the defense could not

agree on what biological material was actually required to be tested, article 38.43

provided that the trial court hold a hearing to resolve that disagreement. See

(State's Appendix Bat 3-5). Defense counsel agreed with the prosecutor's

assertion that the defense was " ... asking that all evidence that contained biological

material be tested or screened for DNA" and that the parties could not agree on

what was required to be tested. (State's Appendix Bat 4-5).

Before discussing the results of DNA testing that had been performed up to

that point, the prosecutor provided, without objection, a brief recitation of the facts

underlying Solis-Gonzalez's capital-murder prosecution. See generally (State's

Appendix B at 8-11 ). According to the prosecutor, officers with the El Paso

'

Police Department were dispatched to a residence on Bengal Street on May 31,

2012, where they found three-dead victims: (1) Eric DeSantiago, who was found in

3

• •

the kitchen with his face wrapped in duct tape and with bums on his chest,

numerous stab wounds, and blunt-force injuries to his head, (2) Marysol Saldivar,

who was found in the living room with blunt-force injuries to her head and stab

wounds, and (3) thirteen-year-old C.H, who was found in her upstairs bedroom

with a slight ligature mark on her neck and who was later determined to have died

from ligature strangulation. (State's Appendix Bat 9-10).

The prosecutor related that after So lis-Gonzalez murdered his three victims,

he went to Mexico, taking Saldivar's truck and his biological four-year-old son,

L.S .. , who had been present during the murders, and that Solis-Gonzalez dropped

L.S. off with his (Solis-Gonzalez's) parents before leaving. (State'sAppendix B

at 10-11). The prosecutor further related that Solis-Gonzalez had told his parents

that he had committed the murders and that Solis-Gonzalez's father then,

cooperating with law enforcep}ent, returned L.S. to the United States and told the

police that So lis-Gonzalez had confessed to committing the murders. (State's

Appendix Bat 10).

So lis-Gonzalez was ultimately apprehended at the United States-Mexico

border, where he turned himself in. (State's Appendix Bat 10). According to the

prosecutor, So lis-Gonzalez provided a statement to the police in which he

admitted to breaking into the victims' house earlier in the day and to later

4

• •

murdering DeSantiago and Saldivar. (State's Appendix Bat 10-11). The

prosecutor related that So lis-Gonzalez admitted to tying C.H up in L.S. 's room,

but denied killing her. (State's Appendix Bat 11).

In summarizing the major categories of evidence collected, the prosecutor

explained that evidence had been collected from the Bengal Street home where the

murders occurred, that L.S. 's clothes had been collected when he was returned to

the United States, that evidence was collected from Saldivar's truck, that Solis-

Gonzalez's clothes were collected when he turned himself in, and that evidence

was collected during the autopsies of the three victims. (State's Appendix B at 11-

12). The prosecutor further advised the trial court that Nicholas Ronquillo, the

DNA section supervisor and technical leader for the E1 Paso DPS lab, had

represented to both her and defense counsel that the DPS lap was about halfway

through the DNA testing requested by the State. (State's Appendix Bat 23).

The prosecutor then set out some of the DNA results the State had received

to date and provided photographs, the crime-scene video, and DPS lab reports, as

well as a spreadsheet setting out the DNA results, to the trial court for review.

(State's Appendix Bat 5-8,12-14, 49-51); (State's Appendices D-L). Specifically,

the prosecutor presented, in relevant part, the following specific DNA results,

5

• •

which are set out below by EPPD evidentiary number, the description of the item

from which swabs were taken, and the DNA results:

JE-02: Blood on handle of kitchen knife on kitchen counter at crime scene =

mix of DNA from Solis-Gonzalez and DeSantiago. Blood on blade of

kitchen knife on kitchen counter = mix of DNA from DeSantiago and

low level of data on other component of mixture (State's Appendix B

-at 14); (State's Appendices E-G).

JE-69: Blood on blade of knife ill upstairs restroom = mix of DNA from

Solis-Gonzalez and DeSantiago. Blood on handle of knife in upstairs

restroom= mix of DNA from So lis-Gonzalez and DeSantiago (State's

Appendix Bat 14); (State's Appendices E-G),

JE-04: Blood on handle of broken knife on kitchen floor = mix of DNA from

So lis-Gonzalez and DeSantiago (State's Appendix Bat 15); (State's

Appendices E-G).

JE-38: Blood on blade of broken knife on kitchen floor= DNA from

DeSantiago (State's Appendix Bat 15); (State's Appendices E-G).

JE-72: Blood on pair of girl's blue jeans found in C.H. 's bedroom= DNA

from Solis-Gonzal~z (State's Appendix Bat 15); (State's Appendices

-E-G) .

. 5208670: Stain on So lis-Gonzalez's right tennis shoe collected when he was

arrested= mix of DNA from DeSantiago and Saldivar (State's

Appendix Bat 15-16); (State's Appendices E-G).

MM01: Stain on Micky Mouse baseball cap collected from L.S. =DNA from

Saldivar (State's Appendix Bat 16); (State's Appendices E-G).

JE113: Bloody tissue found inside Saldivar's truck in which Solis-GonzaJez

fled= DNA from DeSantiago (State's Appendix Bat 16); (State's

Appendices E-G).

6

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BM01: Stain on So lis-Gonzalez's jeans collected when he was arrested =

mix of DNA from Solis-Gonzalez and DeSantiago (State's Appendix

Bat 16); (State's Appendices E-G).

JE17: Blood on piece of toilet paper found on Saldivar's crotch area= mix

of DNA with Solis-Gonzalez as a contributor. (State's Appendix Bat

16-17); (State's Appendices E-F, H).

JE24: Blood on piece of duct tape from upstairs bath tub = mix of DNA

from Solis-Gonzalez and DeSantiago (State's Appendix Bat 17-18);

(State's Appendices E-F, H) ..

JE20: First stain on piece of duct tape found in hamper = mix of DNA from

So lis-Gonzalez and DeSantiago. Second stain on piece of duct tape

found in hamper= mix of DNA from So lis-Gonzalez, C.H,

DeSantiago, Saldivar, and L.S. (State's Appendix Bat 18); (State's

Appendices E-F, H).

JE30: Stain on piece of duct tape found in L.S. 's room= mix of DNA from

Solis-Gonzalez and DeSantiago (State's Appendix Bat 18); (State's

Appendices E-F, H).

JE28: Stain on piece of duct tape found in bag of toys in L.S. 's room= mix

of DNA from Solis-Gonzalez, DeSantiago, Saldivar, C.H, and CS.

(State's Appendix Bat 18); (State's Appendices E-F, H).

JE34: Stain on "makeshift fmger cast" next to vacuum outside of upstairs

restroom= mix of DNA from So lis-Gonzalez and DeSantiago.

(State's Appendix Bat 18-19); (State's Appendices E-F, H). 1

JE66: Stain from ''fmger splint" found in C.H 's bedroom next to her bed=

DNA from Solis-Gonzalez (State's Appendix Bat 19); (State's

Appendices E-F, H).

1

The prosecutor explained that these "makeshift finger casts" appeared to have been an

. effort by So lis-Gonzalez to bandage the cuts he sustained on his fingers while stabbing the

victims. (State's Appendix Bat 16-17).

7

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JE70: · Stain from tennis shoe with missing shoelace found in L.S. 's room=

DNA from DeSantiago (State's Appendix Bat 19); (State's

Appendices E-F, H). 2

JE22: Stain on white shirt from upstairs restroom floor = DNA from.

DeSantiago. Stain on collar of white shirt from upstairs restroom

floor =mix of DNA with So lis-Gonzalez as a contributor (State's

Appendix Bat 19-21); (State's Appendices E-F, H).

JE99: Stain from duct tape from DeSantiago's head= DNA from

DeSantiago. Stain from rag removed from DeSantiago's head= DNA

from DeSantiago. (State's Appendix Bat 21); (State's Appendices E-

F, H).

JE78: Blood from right-hand fmgemail clippings from C.H. = mix of DNA

from Solis-Gonzalez and C.H (State's Appendix Bat 22); (State's

Appendices E-F, H).

5208670: Stain on Solis-Gonzalez's left tennis shoe collected when he was

arrested= DNA from DeSantiago (State's Appendix Bat 22); (State's

Appendice~ E-F, H). ·

BM03: Stain from Solis-Gonzalez's black shirt collected when arrested=

DNA from Saldivar (State's Appendix Bat 22); (State's Appendices

E-F, H).

The remajning evidence listed on the State's spreadsheet and mentioned at

the hearing, and for which the State presented the results of any DNA analysis, did

not serve to esta~lish another individual as the perpetrator, nor did that evidence

serve to exclude So lis-Gonzalez as the perpetrator. See generally (State's

2

The prosecutor explained that Solis-Gonzalez confessed to tying C.H. up with shoelaces

and that a bloody shoelace was found in the same drawer with one of the bloody knives. (State's

AppendixB at 15).

8

• •

Appendix Bat 15-16, 21); (State's Appendices E-H). The State also presented lab

reports indicating the items from which the analysts were unable to detect the

presence of biological material. See generally (State's Appendices E-L).

After the State's proffer of the foregoing evidence, the prosecutor explained·

to the trial court that, in an attempt to comply with the recent amendments to

article 38.43, which mandated the DNA testing of biological evidence in a death-

penalty case and because there had been no initial agreement between the State

and the defense on what items to test, she had submitted a total of 206 items of

evidence to the DPS lab for analysis. (State's Appendix Bat 23). The State then

argued that article 38.43 did not mandate the testing of every single piece of

evidence that contained biological material, that the State's submission of 206

items of evidence had overburdened the DPS lab and delayed the trial, and that

because all of the significant items of evidence had already been tested and all of

the DNA results thus far pointed to So lis-Gonzalez as the perpetrator who

murdered the three victims, the trial court could make the determination as to

whether there were any remaining untested items that were required to be tested.

(State's Appendix Bat 23-27, 40, 42-45).

When the trial court asked the prosecutor how she determined what items of

evidence to submit for testing, she explained that because she had believed the

9

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new amendments to article 38.43 required the testing of all items that could

possibly contain biological material, she had submitted all the evidence that could

conceivably contain biological material, regardless of whether that biological

material was readily apparent. (State's Appendix Bat 27-28).

The State then presented the testimony of Nicholas Ronquillo, the DNA

section supervisor and technical leader for the' El Paso DPS lab, who testified

regarding some of the challenges the lab faced in attempting to comply with

requests for DNA testing pursuant to the recent amendments to article 38.43.

(State's Appendix Bat 29-30). Specifically, Ronquillo explained that with its two

qualified DNA analysts, the DPS lab lacked sufficient personnel to process large

requests in a reasonable amount of time, that DNA analysis was very expensive,

and that the DPS lab did not perform touch-DNA testing because there was

typically not enough biological material to analyze with their equipment. (State's

Appendix B at 31-33).

Ronql,lillo agreed with the prosecutor that she had requested that the DPS

lab " ... take a swab from almost every piece of evidence in this case ... ," which the

prosecutor explained was to ensure that every piece of evidence that could

'·

conceivably yield biological evidence was submitted for testing. (State's

Appendix B at 33). Ronquillo explained that the DPS lab was using its logic,

10

•

reasoning, training, and skills to make a determination as to whether it needed to

collect swabs for touch-DNA. (State's Appendix Bat 33). When·asked by the

trial court how long it would take for the DPS lab to process all 206 items of

evidence submitted by the State, Ronquillo testified that he projected that the lab

would be able to complete the analysis by June of 2015. (State's Appendix Bat

33-34).

During arguments, defense counsel argued that because the State only

.

sought DNA testing to strengthen its own case and because a defendant in a death-

penalty case was " ... entitled to have a complete defense ... ," the defendant had

" ... an absolute right to have all the evidence tested," regardless of any delay in the

proceedings and the costs incurred by the State for such testing. (State's

Appendix Bat 36-40). Defense counsel further argued that although "[t]here

[was] a reference for identification ... ," the DNA testing required by article 38.43

was not limited to only issues related to the identity of the perpetrator and even

extended to assist the defendant in fmding mitigating evidence. (State's Appendix

Bat 38-39).

Defense counsel offered to tell the trial court in "... an ex parte fashion the

defensive reasons of why we believe all the evidence is important because the

State of Texas is not entitled to know that..." and argued that " ... unless all the

11

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evidence is tested ... ," Solis.:Gonzalez would be deprived of exculpatory and

mitigating evidence. (State's Appendix Bat 38-39). Defense counsel requested

that the trial court delay So lis-Gonzalez's trial until after DPS completed its DNA.

testing of the State's evidence. (State's Appendix B at 39).

When the trial court raised the concern of So lis-Gonzalez' speedy-trial

rights in light of his lengthy pretrial incarceration, defense counsel asserted that

So lis-Gonzalez waived any speedy-trial claim. (State's Appendix Bat 46-47). In

tum, the prosecutor argued that although the defendant's rights were important,

the State also had the right not to have its cases delayed by unnecessary DNA

testing. (State's Appendix Bat 47-48).

At the conclusion of the hearing, defense counsel advised the trial court that

after he reviewed the evidence tendered by the State, he would then " ... add a

supplement of what I believe is relevant and give [the prosecutor] an opportunity

to what I'm giving this Court... " because he did not " ... believe that what [the

prosecutor] is going to tender to the Court is going to be what I believe should be

all inclusive encompassing of what we believe why we're asking all the DNA

evidence to be tested." (State's Appendix Bat 51). 3 In a letter to the defense on

3

In his mandamus petition, Solis-Gonzalez claims that "[d]uring the pretrial hearing,

Relator produced photographs for Respondent to review in camera of 158 items collected by the

E1 Paso PoliceDepartment as biological material and requested all biologica~ evidence be tested

12.

• •

Oct<?ber 6, 2014, the trial court requested that the defense identify to the trial court

any necessary piece of evidence it believed the State had failed to submit for DNA

testing and to provide the justification for such testing. See (State's Appendix C).

On January 9, 2015, the trial court entered a written order opining that

article 38.43 " ... did not mandate that every single piece of evidence seized by law

enforcement in a [death-penalty case] must be forensically analyzed" and that the

evidence presented by the State at the October 2, 2014, hearing, showing the DNA

results of evidence that had already been analyzed, demonstrated " ... substantial

compliance with the intent of the statute." See (tab G ofrelator's petition).

· Explaining that So lis-Gonzalez had been instructed to identify any necessary piece

of evidence the State failed to submit for DNA testing and the justification for that

testing and that Solis-Gonzalez's response did not warrant further delay of his

trial, the trial court ordered that So lis-Gonzalez's trial setting remain on the court's

docket for May 8, 2015. See (tab Gofrelator's petition).

Although the record of the pretrial hearing indicates the understanding that

So lis-Gonzalez would be making some type of proffer to the trial court, reflecting

the necessity of testing all of the State's evidence, (State's Appendix Bat 51), and

pursuant to'Respondent' s April 23rct order and Article 38.43(i)." See (relator's petition at 5, 10).

This claim is lll1Supported by the reporter's record of the October 2, 2014, pretrial article 38.43

hearing, as there appears to have been no such proffer made by the defense.

13

·- •

although the trial court's January 9, 2015, order seems to imply that some type of

response or proffer was made to the trial court, see (tab G of relator's petition),

that proffer does not appear in the record, and So lis-Gonzalez has not provided

any such proffer as part of the record for his mandamus petition.

14

• -·

STATE'S RESPONSE TO RELATOR'S PETITION

-Article 38.43 only mandates the testing of biological evidence as defmed

by subsection (a), and the trial court is afforded discretion as the

"gatekeeper" in determining whether the State has rebutted the

presumption that any biological material the defendant requests to be

tested constitutes biological evidence required to be_ tested. In this case,

the trial court's initial order granting the State's request for DNA

testing did not constitute a determination that the evidence the State

sought, on its own initiative, to be tested was biological evidence

required to be tested under subsection (i). Additionally, the record is

devoid of any specific request by Solis-Gonzalez for DNA testing of

certain untested biological materiaL But even assuming, arguendo, that

So lis-Gonzalez made any such a request, the State sufficiently rebutted

any presumption that there existed untested biological material that

constituted biological evidence required to be tested. Consequently, the

trial court did not abuse its discretion, or violate a ministerial duty, in

determining that, in the absence of biological evidence required to be

tested, it would not further delay Solis-Gonzalez's triaL

ARGUMENT AND AUTHORITIES

In his sole issue in his petition for writ of mandamus, So lis-Gonzalez asserts

that the trial court "... abused his discretion by ordering the Defendant to proceed

to trial for a capital offense before the Texas Department of Public Safety

performs DNA testing of biological evidence collected as part of the investigation

for the offense." See (relator's petition at ii).

I. Mandamus standard in criminal cases

Because a writ of mandamus is an extraordinary remedy, it is available only

when the relator is able to make two showings: first, there must be no other

15

•,,...

•

adequate remedy at law to redress the alleged harm; and second, the act the relator

seeks to 'compel must be ministerial, rather than discretionary, in nature. See, e.g.,

Board ofPardons and Paroles ex ref. Keene v. Court ofAppeals for the Eighth

District, 910 S.W.2d 481, 483 (Tex.Crim.App. 1995, orig. proceeding); State ex

ref. Healy V. McMeans, 884 S.W.2d 772, 774 crex.Crim.App. 1994, orig.

proceeding); Bennett v. Paxson, 932 S.W.2d 81, 82 (Tex.App.-El Paso 1996, orig.

proceeding). In regard to the second element, an act is ministerial in nature if the

law clearly spells out the duty to be performed with such certainty that nothing is

left to the exercise of discretion or judgment, that is, the relator has a Clear right to

the relief sought, and the facts and the law permit the trial court to make but one

decision. See State ex ref. Healy v. McMeans, 884 S.W.2d at 774; Texas Farmers

Ins. Co. v. Cooper, 916 S.W.2d 698, 700 (Tex.App.-El Paso 1996, orig.

proceeding).

II. Article 38.43 only mandates the testing of biological evidence as defmed

by subsection (a), and the trial court is afforded discretion as the

"gatekeeper" in determining whether the State has rebutted the

presumption that any biological material the defendant requests to be

tested constitutes biological evidence required to be tested.

In his mandamus petition, So lis-Gonzalez asserts that once the trial court

. . .

granted the State's own initial motion for DNA testing, the trial court lacked any

discretion to later determine that article 38.43 did not require DNA testing of all

16

• •

the items submitted by the State to the DPS lab and that the trial court had a

ministerial duty to delay So lis-Gonzalez's trial until the DNA testing of all the

physical evidence the State submitted for testing was complete. See (relator's

petition at 8); see also (tab G of relator's petition). So lis-Gonzalez further asserts

that " ... the statute does not permit the trial court exercise [sic] any discretion or

deviate from the mandate that any biological evidence shall be required testing

[sic] before a defendant a [sic] tried for a capital offense." See (relator's petition

at 9).

A. The plain meaning of article 38.43(a), (i), and G)

A determination of whether the trial court violated any ministerial duty or

abused its discretion in this case should begin with a review of the provisions of

article 38.43 that are applicable to this case in order to determine which provisions

are permissive and which are mandatory. When discerning the meaning of a

statute, the reviewing court should begin with its plain language. See Getts v.

State, 155 S.W.3d 153, 155 (Tex.Crim.App. 2005). If that language is dear and

unambiguous, the plain meaning of those words is applied. See Chase v. State,

448 S.W.3d 6, 11 (Tex.Crim.App. 2014); Getts, 155 S.W.3d at 155. But if the

plain language leads to absurd results that the Legislature could not possibly have

intended, or if the language is ambiguous, the reviewing court may consider extra-

17

• •

textual factors to determine the statute's meaning. See Chase, 448 S.W.3d at 11;

Getts, 155 S.W.3d at 155.

Subsection (i) of article 38.43, which became effective on September 1,

2013, provides that:

Before a defendant is tried for a capital offense in which the state is seeking

the death penalty, subject to Subsection (j), the state shall require either the

Department of Public Safety through one of its laboratories or a laboratory

accredited under Section 411.0205, Government Code, to perform DNA

testing, in accordance with the laboratory's capabilities at the time the

testing is performed, on any biological evidence that was collected as part of

an investigation of the offense and is in the possession of the state. The

laboratory that performs the DNA testing shall pay for all DNA testing

performed in accordance with this subsection. See TEX. CRIM. PROC. CODE

art~ 38.43(i); see also Act of 2013, 83rct Leg., R.S., ch. 1349, § 3, 2013

Tex.Gen.Laws. 3587.

A literal reading of subsection (i) mandates the DNA testing of ''biological

evidence," as that term is specifically defmed in article 38.43, in a death-penalty

case. See art. 38.43(i). At no point, however, does subsection (i) require that the

State have DPS test any and all physical evidence seized by law enforcement.

Rather, subsection (i) only requires DNA testing of any biological evidence that

was collected as part of the investigation of the offense and is in possession of the

State. See art. 38.43(i) (emphasis added).

18

• •

Biological evidence, in the context of article 38.43, is not merely any

biological material, and article 38.43 does not use those terms synonymously.

Subsection (a) of article 38.43 specifically defmes biological evidence as follows:

(a) In this article, ''biological evidence" means:

( 1) the contents of a sexual assault examination kit; or

(2) any item that contains blood, semen, hair, saliva, skin tissue,

fmgemail scrapings, bone, bodily fluids, or other identifiable

biological material that was collected as part of an investigation of an

alleged felony offense or conduct constituting a felony offense that.

might reasonably be used to:

(A) establish the identity of the person committing the offense

or engaging in the conduct constituting the offense; or

(B) exclude a person from the group of persons who could have

committed the offense or engaged in the conduct constituting

the offense. See TEX. CRIM. PROC. CODE art. 38.43(a).

Thus, the plain language of article 38.43(i) does not mandate the testing of

all physical evidence or even all biological material collected during an

investigation. Rather, subsection (i) only requires DNA testing of biological

evidence as defmed by subsection (a), that is, evidence that constitutes identifiable

biological material that might reasonably be used to establish the identity of the

perpetrator or exclude aperson, presumably the defendant, from the group of

persons who could have committed the offense. 4

4

A defendant who is unable to show that certain biological material constitutes biological

evidence that is required to be tested, that is, biological material that goes to the identity of the

perpetrator, is not without recourse. Subsection (m) of article 38.43 provides that:

19

• •

But while subsection (i) imposes a mandatory requirement that any

biological evidence, as that term is specifically defmed, collected during an

investigation be submitted for DNA testing, subsection (j) of article 38.43

designates the trial court as the "gatekeeper" to make the threshold determination

of whether the biological material sought to be tested by the defendant actually

constitutes biological evidence required to be tested: " .. .If the state and the

defendant do not agree on which biological materials qualify as biological

evidence, the state or the defendant may request the court to hold a hearing to

determine the issue." See TEX. CRIM. PROC. CODE art. 38.43(j). In other words, in

the event thatthe parties, after conferring with one another, cannot agree on what

biological materials constitute biological evidence that is required to be tested, the

parties may request a hearing, at which the trial court exercises its discretion in

'

deciding the issue. See art. 38.43(j).

On an ex parte showing of good cause to the court, a defendant may have [an

accredited] laboratory... perform testing of any biological material that is not

required to be tested under Subsection (i). The defendant is responsible for the

cost of any testing performed under this subsection. See TEX. CRIM. PROC. CODE

art. 38.43(m) (emphasis added).

As will be discussed below, the addition of this provision is an indication that the

Legislature made a distinction between biological material and biological evidence and intended

that the evidence required to be tested under subsection (i) constitute more than mere biological

material, since subsection (m) recognizes that there may exist biological material that does not

constitute biological evidence as defined by subsection (a).

20

• •

And in making this determination of whether the biological material sought '

, to be tested constitutes biological evidence required to be tested, there are, at the

very least and in the context of this case, two fmdings that the trial court must first

make, according to the plain language of subsection (j). Specifically, subsection

(j) provides that "[a]t the hearing, there is a rebuttable presumption that the

biological material that the defendant requests to be tested constitutes biological

evidence that is required to be tested under Subsection (i)." See TEX. CRIM. PROC.

CODE art. 38.43(j). Because all of the State's physical evidence will not

necessarily contain biological material, and because the plain language of

subsection (j) only permits the defendant to request the testing of biological

material, the defendant must first lodge a specific enough request that, at the very

least, alleges, or in some manner identifies, the biological material sought to be

I

tested or otherwise articulates that any specific evidence he does identify

constitutes or contains biological material. See id. In other words, global requests

that all of the physical evidence in the State's possession be tested, regardless.of

whether that evidence actually contains or constitutes biological material, are

insufficient to put the trial court or the State on notice of the specific biological

material the defendant wants to test or to invoke the rebuttable presumption that

21

• •

the specific biological material constitutes biological evidence required to be

tested.

In the absence of a specific request by the defendant to test any certain

biological material, the State is in no position to rebut any presumption that certain

biological material sought to be tested constitutes biological evidence as defmed

by subsection (a) because the defendant never actually lodged a specific request

for the testing of that biological material. Similarly, the trial court cannot make a

determination that certain biological material constitutes biological evidence

because the trial court has not been advised by the defendant as to what biological

material he believes constitutes biological evidence required to be tested. Thus,

according to the plain language of subsection U), the trial court must determine,

before the State is required to rebut any presumption at the pretrial hearing,

whether the defendant lodged a specific enough request of testing of certain

identifiable biological material. See art. 38.43U).

Additionally, the plain language of subsection U) provides that if the

defendant does make a request for the testing of certain biological material, the

presumption that that biological material is biological evidence required to be

tested is one that may be rebutted by the State at the pretrial hearing. See art.

38.43U). Thus, in addition to making a fmding as to whether the defendant made a ·

22

• •

sufficiently specific request to test certain identifiable biological material, the trial

· court must determine whether the State has sufficiently rebutted any presumption

that any specific biological material for which the defendant requested testing

constitutes biological evidence as defmed by subsection (a). And as previously

stated, the trial court is the designated gatekeeper in making the determination of

whether the State has sufficiently rebutted that presumption.

For all the foregoing reasons, the plain language of article 38.43 only

mandates the testing of biological evidence as defmed by subsection (a), and the

trial court is afforded discretion as the gatekeeper in determining whether the State .

has rebutted the presumption that any specific biological material the defendant

requests to be tested constitutes biological evidence required to be tested under

subsection (i).

B. The legislative intent of the recent amendments to article 38.43

The foregoing interpretation, that article 38.43 only mandates the testing of

biological evidence as defmed by subsection (a) and that the trial court is afforded

discretion as the gatekeeper in determining whether the State sufficiently rebutted

the aforementioned presumption, is consistent with the legislative intent of the

recent amendments to article 38.43. Senate Bill 1292, as it was initially

introduced, simply proposed to add the following amendment as subsection (i):

23

• •

SECTION 1. Article 38.43, Code of Criminal Procedure, is amended

by adding Subsection (i) to read as follows: .

(i) . Before a defendant is tried for a capital offense in which the

state is seeking the death penalty, the Department of Public

Safety shall perform DNA testing on all biological evidence

that was· collected as part of an investigation of the offense.

See Tex. S.B. 1292 (introduced version). The introduced version did not-propose

to add subsections (j) or (m) now found in article 38.43. See id.

The Senate Committee on Criminal Justice subsequently presented a

substitute version of S.B. 1292 that contained language substantially similar to

that now found in article 38.43(i) and (j), except that subsection (i) of the

substituted version did not reference subsection (j). See SENATE COMMITTEE

REPORT, Texas Senate Committee on Criminal Justice, Tex. S.B. 1292, 83rd Leg.,

R.S. (Aprilll, 2013). Unlike the introduced version of the bill, the substitute

version proposed to add subsection (j), which differed from that currently found in

article 38.43 in that it did not provide for the rebuttable presumption discussed

above and instead stated: "At the hearing, a request by the defendant to test

biological material is prima facie evidence that the biological material constitutes

biological evidence that is required to be tested under Subsection (i)." Compare

SENATE COMMITTEE REPORT, Texas Senate Committee on Criminal Justi~e, Tex.

S.B. 1292, 83rd Leg., R.S. (Aprilll, 2013) with TEX. CRIM. PROC. CODE art.

24

• •

38.43Q) ("At the hearing, there is a rebuttable presumption that the biological

material that the defendant requests to be tested constitutes biological evidence

that is required to be tested under Subsection (i).").

Additionally, the substitute version of S.B. 1292 proposed to add subsection

(m), which mirroredthat subsection as it currently appears in article 38.43:

A defendant may have another laboratory accredited under Section

411.0205, Government Code, perform additional testing of any biological

evidence required to be tested under Subsection (i). On an ex parte showing

of good cause to the court, a defendant may have a laboratory accredited

under Section 411.0205, Government Code, perform testing of any

biological material that is not required to be tested under Subsection (i).

The defendant is responsible for the cost of any testing performed under this

subsection. See TEX. CRIM. PROC. CODE art. 38.43(m); see also SENATE

COMMITTEE REPORT, Texas Senate Committee on Criminal Justice, Tex.

S.B. 1292, 83rct Leg., R.S. (April1 i, 2013).

The enrolled version of S.B. 1292, ultimately enacted, contained additional

changes to subsections (i) and Q). Specifically, an ·amendment to subsection (i)

provided that the mandate in subsection (i) requiring DNA testing of any

biological evidence collected during an investigation of a death-penalty case was

subject to the procedures set forth in subsection Q). See Tex. S.B. 1292 (enrolled

version). Additionally, the original language in subsection U) providing that a

defendant's request to test biological material was " ... prima facie evidence that the

(

biological material constitutes biological evidence that is required to be tested

25

• •

under Subsection (i)" was changed to provide that there is a presumption, that may

be rebutted by the State, that biological material a defendant requests to be tested

constitutes biological evidence that is required to be tested. See SENATE

COMMITTEE REPORT, Texas Senate Committee on Criminal Justice, Tex. S.B.

1292, 83rd Leg., R.S. (Aprilll, 2013); see also Tex. S.B. 1292 (enrolled version).

. That the Legislature intended to make a distinction between evidence that is

simply biological material and biological evidence that is required to be tested is

thus reflected not only in the plain language of subsections (a), (i), and (j), which

expressly make that distinction, but also by the addition of subsection (m), which

provides a defendant in a death-penalty case with the means to request pretrial

testing of biological materials that do not constitute biological evidence required

to be tested under subsection (i). See Tex. S.B. 1292 (enrolled version). By its

very language, subsection (m) recognizes that there may exist biological material

that does not constitute biological evidence required to be tested, supporting the

conclusion that the Legislature intended biological evidence required to be tested

under subsection (i) to not be merely any biological material, but rather, biological

material that goes to the issue of the identity of the perpetrator. See Tex. S.B.

1292 (enrolled version); see also TEX. CRIM. PROC. CODE art. 38.43(m) (providing

that a defendant may have an accredited laboratory perform testing of any

26

• •

biological material that is not biological evidence required to be tested under

subsection (i)). 5

Additionally, that the Legislature intended the required DNA testing of

biological evidence in subsection (i) be subject to the procedures outlined in

subsection (j), in which the trial court acts as the gatekeeper in determining what

biological material actually constitutes biological evidence, is demonstrated by th~

' -

amendment expressly providing that subsection (i) was "subject to" the procedures

outlined in subsection (j) and is reflected in the bill's analysis, which explains that

"[t]he bill would establish a process to determine what evidence fell under this

requirement [that the DPS lab perform DNA testing on any biological evidence

collected during the investigation]." See HOUSE RESEARCH ORGANIZATION, BILL

ANALYSIS, Tex. S.B. 1292, 83rct Leg., R.S. (May 20, 2013); see also ENROLLED

BILL SUMMARY, Tex. S.B. 1292, 83rct Leg., R.S. (2013) (''The bill establishes

procedures for determining which biological materials collected as part of the

investigation qualify as biological evidence that is required to be tested, including

5

To any extent that Solis-Gonzalez's request for DNA testing was to develop mitigating

evidence, such a request, which would fall under subsection (m), is not governed by subsections

(i) and U), and mandamus is not the proper remedy for the trial court's denial of such a request

under subsection (1).

27 '

• •

procedures relating to a hearing if the state and the defendan~ do not agree on that

. qualification .... ").

The addition of subsection (j), with its requirement that the initiation of

DNA testing occur "[a]s soon as practicable after:the defendant is charged with a

capital offense ... ," as well as the provisions that the trial court hold a hearing to

resolve disputes as to what constitutes biological evidence and that the State may

rebut any presumption that biological material in its possession constitutes

biological evidence, see Tex. S.B. 1292 (enrolled version), appears to be an

attempt by the Legislature to allay the concerns of the bill's opponents. Echoing

the concerns of the State and the trial court in this case regarding the potential

consequences of allowing or requiriiig DNA testing without reasonable

limitations, opponents of the bill opined that the bill, as amended, " ... could result

in unnecessary DNA testing being used as a delaying tactic in death penalty

trials." See HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. S.B. 1292,

83rd Leg., R.S. (May 20, 2013).

Opponents further recognized that:

With SB 12~2 testing could be requested of numerous-in some cases

hundreds-of items or samples. These items~ while gathered from the crime

scene, may have nothing to with the identity of the criminal and the results

of the testing might not yield any relevant results. This could delay trials

and increase costs, without adding information about the crime.

28

• •

See id. And consistent with the dilemma experienced by the DPS lab in the

present case, opponents recognized that "[i]t could be difficult for crime labs to

absorb the additional testing required by SB 1292 within existing resources." See

id.

In tum, the bill's supporters explained that:

SB 1292 would ensure that its provisions were not used only as an

unreasonable delaying tactic. As soon as practicable, courts would have to

order the defense and prosecution to meet to confer about what should. be

tested. If there was disagreement over what should be tested, either party

could request a hearing. The judge holding the hearing would act as a

gatekeeper to consider a defendant's request. The presumption that a

request for testing would be done would be rebuttable by the prosecution.

See id.

Ultimately, the legislative history of the recent amendments to article 38.43

reflects that while the Legislature imposed a mandatory requirement for DNA

!

testing of biological evidence in a death-penalty case " ... to help ensure that only

the guilty faced execution," other provisions designed to impose some limits on

that testing were added in order to "... balance and protect the needs and rights of

defendants and the state in death penalty cases." See id. The legislative history

supports the conclusion that while the Legislature intended to impose a mandatory

requirement that biological evidence in a death-penalty case be subject to DNA

testing, the trial court is vested with the authority and the discretion to act as the

29

• •

demonstrated to this Court his entitlement to mandamus relief for an alleged

violation of that article. The Legislature has expressly provided that a defendant's

exclusive remedy for testing that was not performed as required under-subsection

(i) or (j) is to seek a writ of mandamus from this Court. See art. 38.43(1).

The only remaining question, then, is whether So lis-Gonzalez has presented ·

this Court with a sufficient record demon_strating that the trial court violated a

ministerial duty when it refused to delay So lis-Gonzalez's trial for further DNA

testing.

(

As will be discussed below, the record reflects that the complained-of

incomplete DNA testing was in relation to testing initiated by the State on its own

motion and was not based on any determination by the trial court that that

evidence for which the State initially sought testing was biological evidence

required to be tested under subsection (i). Additionally, the record before this

. Court is devoid of a specific request by So lis-Gonzalez identifying as-of-yet

untested biological material, and the State sufficiently rebutted any presumption at

the pretrial hearing that there existed untested biological material that constituted

biological evidence required to be tested, such that the trial court did not abuse its

discretion in determining that there existed no untested biological evidence

· required to be tested. Consequently, Solis-Go.n,zalez has failed his burden of

31

)

• •

"gatekeeper" in determining what biological material sought to be tested by the

defendant actually constitutes biological evidence. In other words, contrary to

what So lis-Gonzalez suggested at the pretrial hearing and in his mandamus

petition, there is no automatic entitlement to DNA testing of all biological

materials or all evidence in the State's possession. Rather, a defendant's

entitlement to mandatory DNA testing under subsection (i) is based upon the

satisfaction of certain conditions, and the trial court is afforded the discretion to

determine whether those conditions have been met.

For the following reasons, the trial court did not abuse its discretion as the

gatekeeper in determining that So lis-Gonzalez failed to demonstrate the existence

of biological evidence required to be tested because he failed to make a specific

request for the testing of certain biological material, and because the State.

sufficiently rebutted any presumption that any biological material So lis-Gonzalez

sought to be tested constituted biological evidence, such that So lis-Gonzalez has

failed to demonstrate his entitlement to mandamus relief.

III. So lis-Gonzalez has failed his burden of demonstrating his entitlement to

i

mandamus relief for an alleged violation of article 38.43(i) and U).

I·

Mter determining which provisions of articleJ8.43 are mandatory and .

which are permissive, the issue then becomes whether Solis,.Gonzalez has

30

• •

proving that the trial court violated a ministerial duty when it determined that, in

the absence of untested biological evidence required to be tested under article

38.43(i), Solis-Gonzalez's case could proceed to trial as scheduled.

A. Wher~the trial court's initial order granting the State's request

for DNA testing did not constitute a determination that the

evidence the State sought to be tested was biological evidence

required to be tested under subsection (i), and where the record

before this Court is devoid of a specific request by So lis-Gonzalez

for DNA testing of certain untested identifmble biological

material, the trial court did not abuse its discretion, or violate a

ministerial duty, in refusing to delay his triaL

In his mandamus petition, So lis-Gonzalez alleged that the trial court

violated a ministerial duty when it refused to delay So lis-Gonzalez's trial until the

DPS lab completed its DNA analysis of biological evidence required to be tested

pursuant to article 38.43(i). Implicit in So lis-Gonzalez's complaint is the assertion

that the trial court's initial order granting the State's request for DNA testing

constituted a determination that the evidence the State submitted for testing was

biological evidence required to be tested under subsection (i). A careful review of

the r~cord, however, reflects that the trial court's initial order simply granted the

State's initial general and global request to have all of its evidence submitted for

DNA testing, but did not purport to determine that that evidence constituted

biological evidence required to be tested under article 38.43(i).

32

• •

At the pretrial article 38.43 hearing the trial court ultimately held in this

case, the prosecutor explained that, in an attempt to comply with the recent

amendments to article 38.43 mandating the DNA testing of biological evidence

collected in a death-penalty case;and because there had been no initial agreement

between the State and the defense as to what items to test, the prosecutor had

submitted for DNA testing every piece of evidence that could have possibly

contained biological material, which amounted to approximately 206 items of

evidence. (State's Appendix Bat 3-5, 23). While the State's motion had

requested DNA testing of''biological evidence," see (tab B of relator's petition),

and the prosecutor suggested at the hearing that all of the items she submitted to

the DPS lab contained biological material, the record, and in particular

Ronquillo's testimony, shows that the prosecutor also initially submitted for

testing items that did not contain readily apparent identifiable biological material ·

out of concern that the failure to do so would somehow violate article 38.43.

(State's Appendix Bat 27-28, 33).

When the trial court asked the prosecutor at this pretrial hearing how she

-

determined what items of evidence to submit for testing, she explained that, based

on a belief that article 38.43 required the testing of items that could possibly

contain biological material, she had initially submitted all the State's evidence that

33

• •

could conceivably contain biological material, even where the presence of any .

biological material was not readily apparent. (State's Appendix Bat 27-28).

Although the trial court had granted the State's initial request for this expansive

DNA testing, there is nothing in the record or the trial court's order to indicate that

it based its ruling on a determination that the evidence the State sought to be tested

actually constituted biological evidence that w·as required to be tested under

subsection (i). See (tab C of relator's petition).

Thus, the record reflects that the State, out of an abundance of caution and

on its own initiative, and not as the result of any agreement between the parties,

made its own general and global request for DNA testing. The record further

reflects that although the trial court, in granting the State's global request for

testing, made a reference to article 38.43 and ordered the DPS lab to "... test all

items submitted by the El Paso Police Department containing biological evidence

for DNA comparison," nothing in that order, or the State's motion, indicates that

the State and the defense came to an agreement as to what evidence was required

to be tested or that the trial court made an express determination that whatever

evidence the State submitted for testing at that time constituted biological

evidence that was required to be tested under subsection (i) of article 38.43. See

(tab C of relator's petition).

34

• •

Article 38.43U) expressly provides that subsection U) "... does not. in any

way prohibit the state from testing biol()gical evidence in the state's possession,"

and nothing in that provision suggests that such a request constitutes any kind of

fmding that whatever evidence the State, on its own initiative, seeks to test is

biological evidence required to be tested under subsection (i). See TEX. CRIM.

PROC. CODE art. 38.43U). The legislative history for this provision indicates that

the Legislature specifically intended that "[t]he state would retain the right to test

all evidence in its possession." See HOUSE RESEARCH ORGANIZATION, BILL

ANALYSIS, Tex. S.B. 1292, 83rct Leg., R.S. (May 20, 2013).

Inherent in the State's right to test evidence in its possession, on its own

initiative, is the right to later reassess whether DNA testing of certain evidence is

necessary and will yield anything of probative value or whether that testing would

simply serve to delay the prosecution or unduly burden the lab performing the

testing. In this case, that is what the _State did in reassessing its own request for

DNA testing, once it became apparent that its broad submission of 206 items of

evidence had unnecessarily burdened the DPS lab, that this request for testing had

unnecessarily delayed the trial, that all significant items of evidence had already .

been tested, and that the DNA results of that testing conclusively pointed to So lis-

Gonzalez as the sole perpetrator. (State's Appendix Bat 23-27, 40, 42-45).

35

• •

And the record reflects that it was in response to the trial court's initial

order granting the State's broad request for DNA testing, which included items

that did not contain readily apparent biological material, that the DPS lab

requested additional time. The DPS lab's request for additional time was not in

response to any order issued by the trial court whereby the trial court had

determined that the evidence the State initially sought to be tested constituted

biological evidence required to be tested under subsection (i) of article 38.43, such

that the trial court's decision to proceed with Solis-Gonzalez's ~ial bef9re the

DPS lab had fmished that particular testing based on the State's request did not

constitute a violation of the requirement in subsection (i) of article 38.43 that any

biological evidence be tested before a defendant is tried in a capital death-penalty

case.

It appears that given the delay of the trial and the issues encountered by the

DPS lab in completing the broad request for testing by the State, the trial court

decided to hold a hearing to litigate how article 38.43 would be applied in Solis-

Gonzalez's case and allowed the parties to litigate what biological material

constituted biological evidence required to be tested under subsection (i).

Although the letter the trial court sent to the parties indicated that the pretrial -

hearing would address whether the State was required to test every piece of

36

• •

''biological evidence," see (tab F of relator's petition), the record of the pretrial

article 38.43 hearing and the trial court's ultimate order on January 9, 2015, reflect

that the parties were litigating the issue of whether all of the evidence collected by

the State constituted biological evidence required to be tested under subsection (i)

of article 38.43. See (tab G of relator's petition- where the trial court ruled that

" ... Article 38.43 does not mandate that every single piece of evidence seized by

law enforcement in a [death-penalty case] must be forensically analyzed."): 6

At the pretrial hearing, the prosecutor argued, and the trial court correctly

ruled, that article 38.43(i) does not mandate the testing of every single piece of

evidence or even all biological material collected by the State during its

investigation. See art. 38.43(i). As previously discussed, article 38.43(i) only

requires DNA testing of biological evidence as defmed by subsection (a), that is,

evidence that goes to the issue of the identity of the perpetrator. See id. And the

defendant's entitlement to mandatory testing under article 38.43(i) is predicated on

6

The trial court's concerns, as expressed in its June 25, 20 14,letter and at the pretrial

hearing, regarding the possibility of unnecessary delays as a result of DNA testing without

reasonable limits, were legitimate and consistent with the concerns raiseq by the opponents of

S.B. 1292, in that the new amendments to art;icle.38.43 " ... could result in unnecessary DNA

testing being used as a delaying tactic in death penalty trials" and that DNA testing without

reasonable limitations would result in increased costs and trial delay for DNA testing that yielded

no relevant evidence regarding the identity ofthe perpetrator. See HOUSE RESEARCH

ORGANIZATION, BILL ANALYSIS, Tex. S.B. 1292, 83rd Leg., R.S. (May 20, 2013).

37

• •

the defendant first making a specific request that certain biological material be

tested.

The record currently before this Court, including the record of the pretrial

hearing, is devoid of any specific request by Solis-Gonzalez identifying as-of-yet

untested biological material sought to be tested. At the beginning of the pretrial

hearing, defense counsel agreed with the prosecutor's assertion that the defense

was "... asking that all evidence that contained biological material be tested or

screened for DNA" and that the parties could not agree on what was required to be

tested. (State's Appendix Bat 4-5). At some point during the hearing, So lis-

Gonzalez, before the State was required to put forth any evidence to rebut any

presumption, was required to lodge a specific enough request that, at the very

least, alleges, or in some manner identifies, the biological material sought to be

tested or otherwise articulates that any specific evidence he does identify

constitutes or contains biological material. See art. 38.43(j).

As will be further discussed below, the State presented substantial evidence

indicating that the DNA results revealed, and any further testing would likely

confirm, that So lis-Gonzalez was the perpetrator who murdered the three victims.

In his mandamus petition, So lis-Gonzalez claims, presumably with respe~t to any

as-of-yet untested evidence, that"[ d]uring the pretrial hearing, Relator produced

38

• •

photographs for Respondent to review in camera of 158 items collected by the El

Paso Police Department as biological material and requested all biological

evidence be tested pursuant to Respondent's April23rd order and Article 38.43(i)."

See (relator's petition at 5, 10). This claim is unsupported by the reporter's record

of the October 2, 2014, pretrial article 38.43 hearing, as there appears to be no

such proffer of photographs on the record by the defense. While the record of the

pretrial hearing indicates an understanding that So lis-Gonzalez would be tendering

some type of proffer to the trial court to reflect the.necessity of testing all of the

State's evidence, (State's Appendix Bat 51), and although the trial court's January

9, 2015, order seems to imply that some type of response or proffer was made to

the trial court, see (tab G of relator's petition), that proffer does not appear in the

mimdamus record before this Court, and So lis-Gonzalez has ~ot provided any such

proffer as part of his mandamus petition.

To the extent that So lis-Gonzalez made anything resembling a request for

testing at the pretrial hearing, he simply advised the trial court that he was entitled

to DNA testing of all the State's evidence. See (State's Appendix Bat 36-40, 51).

As previously discussed, global requests for all of the State's evidence to be tested

for DNA are generally insufficient to put the trial court or the State on notice of

the specific biologica,l material the defendant wants to test or to invoke the

39

• •

rebuttable presumption in subsection (j). But even assuming, arguendo, that

So lis-Gonzalez had tendered photographs of the State's evidence to the trial court

as some kind of proffer of what he wanted to be tested, photographs, in and of

themselves, do not necessarily reflect the existence of biological material and such

tender is not a clear articulation of what specific biological material Solis-

Gonzalez wanted to be tested for DNA.

The mandamus record before this Court is simply devoid of a specific

.

request by So lis-Gonzalez identifying as-of-yet untested biological material

sought to be tested. In the absence of such a request, the State was not required to

rebut any presumption that certain biological material constituted biological

evidence that is required to be tested because So lis-Gonzalez never actually made

such a request identifying any specific biological material, nor can the trial court

determine that there exists biological material that constitutes biological evidence

that is required to be tested under subsection (i).

Rather than simply articulate what specific untested biological material he

wanted to be tested, So lis-Gonzalez attempted to bootstrap his entitlement to DNA

testing of biological evidence off the State's own initial broad request for DNA

testing and now complains that the trial court violated a ministerial duty by

refusing to delay the trial until after the DPS lab had completed the testing based

40

• •

on the State's initial request. So lis-Gonzalez was afforded an opportunity dur~g

and after the pretrial hearing to make a specific request of what biological material

he wanted to be tested, but the record does not reflect what request, if any, was

made. Even now, Solis-Gonzalez has not identified in his mandamus petition

what specific biological material he wants tested.

In sum, the trial court's initial order granting the State's broad request for

DNA testing did not constitute a determination by the trial court that the evidence

the State, on its own initiative, sought to test was biological evidence required to

be tested under subsection (i). Nothing in article 38.43 then prevented the trial

court from later holding a hearing pursuant to subsection (j) to ensure that

biological evidence required to be tested under subsection (i) would in fact be

tested prior to trial, notwithstanding any ancillary DNA testing by the State on

other evidence in its possession.

And the mandamus record before this Court is devoid of a specific request

by So lis-Gonzalez for DNA testing of certain identifiable biological material that

has not yet been tested. Consequently, the trial court did not abuse its discretion

in ·determining that there existed no other biological evidence required to be tested

under subsection (i), and So lis-Gonzalez has thus failed his burden of proving that

41

• •

the trial court violated a ministerial duty by refusing to delay his trial. Solis-

Gonzalez's requested mandamus relief should be denied for this reason alone.

B. Where the State sufficiently rebutted any presumption that there

existed untested biological material that constituted biological

evidence required to be tested, the trial court did not abuse its

discretion, or violate a ministerial duty, in refusing to delay So lis-

Gonzalez's triaL

In, his mandamus petition, Solis-Gonzalez claims that at the pretrial hearing,

" ... no evidence was presented by the Real Parties in Interest/State to rebut the .

presumption that the biological material Relator/Defendant requested to be tested

constituted biological evidence that is required to be tested under subsection (i)."

See (relator's petition at 11); see also (relator's petition at 8- claiming that the

respondent trial court " ... reviewed no evidence to rebut the presumption that the

biological material that was requested to be tested constituted required testing

i

pursuant to Article 38.43(i) ... "). Solis-Gonzalez's claims are not supported by the

record; which reflects that the State presented sufficient evidence, in the forin of

'

DNA test results of all the significant items of evidence that had already been

tested, to rebut the presumption that there existed any other untested biological

material that goes to the issue of the identity of the perpetrator.

The plain language of article 38.43 indicates that biological evidence

required to be tested focuses only on that evidence that relates to the issue·of

42

• ••

identity. See art. 38.43(a); And, as previously mentioned, the legislative history

of the recent amendments to article 38.43 reflects that the Legislature imposed a

mandatory requirement of DNA testing of biological evidence in a death-penalty

case to ensure that the identity of the perpetrator would be unassailable and that

" ... only the guilty face[] execution." See HOUSE RESEARCH ORGANIZATION, BILL

ANALYSIS, Tex. S.B. 1292, 83rct Leg., R.S. (May 20, 2013).

Courts have generally held that the presence of a third-party's DNA on

evidence sought to be tested, without more, does not necessarily constitute

exculpatory evidence, particularly when it does not serve to explain away all of the

other evidence pointing to the defendant's guilt. See Prible v. State, 245 S.W.3d

466, 470 (Tex.Crim.App.) (holding that evidence of another person's DNA in

addition to the defendant's was not necessarily exculpatory evidence in light of the

additional evidence at trial that established the defendant's guilt), cert. denied, 555

U.S. 833, 129 S.Ct. 54, 172 L.Ed.2d 55 (2008); Whitaker v. State, 160 S.W.3d 5, 9

(Tex.Crim.App.) (holding that testing of blood on the murder weapon would not

be exculpatory since the blood could have belonged to a co-conspirator or the

victim and because regardless of whose blood was on the rifle, other evidence at ·

trial established the defendant's guilt, including his statement to a co-conspirator

that he had "laid the hitch to rest."), cert. denied, 543 U.S. 864, 125 S.Ct. 194, 160

43

• ,

•

L.Ed.2d 106 (2004); Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim;App. 2002)

(holding that evidence of another person's DNA at the crime scene will not,

without 'more, constitute affirmative evidence of a defendant's innocence).

Likewise, reviewing courts have held that while the presence of a

defendant's DNA could indicate a defendant's guilt, the absence ofJ!NA would

not necessarily indicate innocence. See Rivera v. State, 89 S.W.3d 55, 60

(Tex.Crim.App. 2002) (holding that while the presence of the c?ild-victim'sDNA

under the defendant's fmgemails could indicate guilt, the absence of such DNA

would not indicate innocence).

At the pretrial hearing in this case, the State presented DNA results of

evidence already tested that shows that the identity of the perpetrator is So lis-

Gonzalez and that he cannot be excluded from any group of individuals

responsible for the killings. Specifically, the State presented DNA test results that

established that a combination of So lis-Gonzalez's and DeSantiago's blood was

found on at least three knives, apparently used as the murder weapons, recovered

from the scene of the murders. So lis-Gonzalez's blood was also found on items in

the Bengal Street home that would demonstrate that he was the individual who

murdered the three victims. For example, Solis-Gonzalez's blood was found on a

pair of girl's blue jeans in C.H 's bedroom where C.H was strangled to death, and

44

• •

his DNA W<l:S also found on tissues or "makeshift fmger casts" recovered from the

crime scene, including one such ''fmger cast" that was located on Saldivar's crotch

area. So lis-Gonzalez's blood was also found underneath C.H 's fmgernails.

Additionally, blood from the victims was found on Solis-Gonzalez's

clothing and shoes when he turned himself in, and blood from Saldivar, four-year-

old L.S. 'smother, was found on L.S. 's Micky Mouse baseball cap that was

collected after Solis-Gonzalez dropped L.S. with his (Solis-Gonzalez's) parents.

Moreover, a bloody tissue with DeSantiago's blood was found in Saldivar's truck,

the vehicle in which So lis-Gonzalez made his getaway after the murders.

In addition to these DNA results, the State provided the trial court with

additional lab reports listing items of evidence containing any untested biological

material and items of evidence on which analysts were unable to detect the

presence of biological material. See generally (State's Appendices E-L). The

State also provided photographs and the crime-scene video for the trial court to

review in making its determination as to whether there existed other untested

biological material that constituted biological evidence required to be tested under

subsection (i). (State's Appendix Bat 5-8, 12-14, 49-51); (States's Appendices D-

L).

45

• •

The prosecutor further advised the trial court, without objection, that Solis-

Gonzalez provided a statement to the police in which he admitted to breaking into

the victims' house earlier in the day and later murdered DeSantiago and Saldivar.

(State's Appendix Bat 11); see also Thieleman v. State, 187 S.W.3d 455, 457-58

(Tex.Crim.App. 2005) (holding that undisputed assertions by counsel may be held

to have been adoptively admitted by the opposing party if ''the event [that is the

subject of those assertions] could not have happened without being noticed" and

''the assertions [are] of the sort that would provoke a denial by opposing counsel if

it were not true"); Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App. I996)

(''This Court accepts as true factual assertions made by counsel which are not

disputed by opposing counsel."). 7

The DNA test results presented to the trial court by the State thus far have ·

so almost conclusively established Solis-Gonzalez's identity as the individual

who, at the very least, murdered DeSantiago and Saldivar that it is unlikely that

there exists any other biological material that would serve to negate that proof. If

there is any such evidence, the record is devoid of any request by So lis-Gonzalez

to test that biological material. ·

7

As previously mentioned, while Sobs-Gonzalez admitted to tying thirteen-year-old C.H.

up inL.S.'s bedroom, he denied killing her. (State's Appendix Bat 11).

46

• •

But even if So lis-Gonzalez had requested the testing of specific biological

material, he would have been hard-pressed to demonstrate how that evidence, in

light of the strength of the State's proffer, would have served to negate hisidentity

I

as the killeL, As previously discussed, the presence of third-party DNA on other

evidence would not serve to exculpate So lis-Gonzalez as the individual who

stabbed and beat DeSantiago and Saldivar to death, particularly where his own

blood was mixed with DeSantiago's blood on the knives found at the murder

scene of the murders, he had the victims' blood on his clothing and shoes, and he

confessed to murdering both DeSantiago and Saldivar and admitted tying up C.H

See, e.g., Prible, 245 S.W.3d at 470; Whitaker, 160 S.W.3d at 9; Bell, 90 S.W.3d

at 306. And if the evidence requested to be tested by a defendant does not serve to

exculpate him of the charged offense, his request for DNA testing of evidence that

will not prove to be fruitful can be nothing more than an attempt to unreasonably

delay his capital-murder prosecution.

For all the foregoing reasons, the State sufficiently rebutted any

presumption that there existed untested biological material that constituted

biological evidence required to be tested. Consequently, the trial court did not

abuse its discretion in determining that there existed no other biological evidence

required to be tested under subsection (i), and So lis-Gonzalez has thus failed his

47

• •

burden of proving that the trial court violated a ministerial duty by refusing to

delay his trial. So lis-Gonzalez's requested mandamus relief should be denied for

this reason as well.

IV. Conclusion

The record reflects that, out of an abundance of caution, the State initially

made a broad request for DNA testing, which the trial court granted without

making any determination that that evidence constituted biological evidence

required to be tested. The record reflects that it was in response to this request for

testing by the State that the DPS lab requested additional time for DNA testing.

That the State exercised its right to test evidence in its own possession did not

prohibit it from later reassessing the necessity of testing all of the items it

originally submitted. Because the State and the defense did not come to an

agreement as to what items of evidence containing biological material constituted

biological evidence required to be tested, the trial court held a hearing, during

which the parties were permitted to litigate what biological material constituted

biological evidence required to be tested under subsection (i) of article 38.43. The

mandamus record is devoid of any specific request by So lis-Gonzalez to test

certain untested biological material. And the State sufficiently rebutted any

presumption that there existed any as-yet untested biological material that

48

• •

constituted biological evidence required to be tested. The trial court properly

'

exercised its discretion as the gatekeeper in determining whether there existed

biological material that constituted biological evidence required to be tested under

subsection (i), and the trial court did riot abuse its discretion in determining that no

such evidence existed under the facts of this case. For all the foregoing reasons,

So lis-Gonzalez has failed his burden of demonstrating his entitlement to the

requested mandamus relief, and his petition for writ of mandamus should be

denied.

49

• •

PRAYER

WHEREFORE, the State prays that this Court deny relator's application for

writ of mandamus.

Respectfully submitted,

JAIME ESPARZA

DISTRICT ATTORNEY

341h JUDICIAL DISTRICT

/s/ Lily Stroud

LILY STROUD

ASST. DISTRICT ATTORNEY

DISTRICT ATTORNEY'S OFFICE

201 EL PASO COUNTY COURTHOUSE

500 E. SAN ANTONIO

EL PASO, TEXAS 79901

(915) 546-2059 ext. 3769

FAX (915) 533-5520

EMAIL lstroud@epcounty.com

SBN 24046929

ATTORNEYSFORTHESTATE

CERTIFICATE OF COMPLIANCE

The undersigned does hereby certify that the foregoing document contains

11,367 words.

/s/ Lily Stroud

LILY STROUD

50

• •

CERTIFICATE OF SERVICE

The undersigned does hereby certify that on March 11, 2015, a cop~ of the

foregoing response to relator's Emergency Petition for Writ of Mandamus was

emailed, through an electronic-filing service provider, to relator's attorneys: Joe

A. Spencer, Jr., joe@joespencerlaw.com; and Joshua C. Spencer,

joshua@joespencerlaw .com.

The undersigned also does hereby certify that on March 11, 2015, a copy of

the foregoing response to relator's Emergency Petition for Writ of Mandamus was

hand-delivered to Respondent, Honorable Luis Aguilar, Judge, 243rct .District

Court, 500 E. San Antonio Ave., 9th Floor, El Paso, Texas 79901.

Is/ Lily Stroud

LILY STROUD

51

• •

APPENDIX- TABLE OF CONTENTS

Appendix A......................... State's Notice to Seek the Death Penalty

Appendix B.............. Reporter's Record of October 2, 2014, pretrial hearing

Appendix C.. . . . . . . . . . . . . . . . . . . . . . . . . . . Trial court's October 6, 2014, letter

Appendix D ..... ·. . . Notice of Filing of Documents for Clarification of Record of

Article 38.43 Hearingon October 2, 2014

Appendix E............. State's chart of DNA results and hand-delivery receipts

Appendix F ............. May 9, 2013, DPS Forensic Biology ·Laboratory Report

Appendix G................... August 12, 2013, DPS DNA Laboratory Report

Appendix H ......... April29, 2014, DPS Supplemental DNA Laboratory Report

Appendix I. .............. June 13, 2014, DPS Supplemental Forensic Biology

Laboratory Report

Appendix J. .............. June 17, 2014, DPS Supplemental Forensic Biology

Laboratory Report

Appendix K................ ,July 17, 2014, DPS Supplemental Forensic Biology

Laboratory Report

Appendix L. .......... September 19, 2014, DPS Supplemental Forensic Biology

Laboratory Report

52

OF TEXAS

GONZALEZ

STATE'S NOTICE TO SEEK THE DEATHPENALTY

now the State of Texas, by and through the undersigned District Attorney, and

hereby gives notice to this Honorable Court, and to the Defendant and his counsel in the above-

ifconvicted of the offense of Capital Murder, the State of Texas will seek the

death penalty against the Defendant herein.

Respectfully submitted,

_ja..:.o<£.~

JAIME ESPARZA

Dis£rict Attorney

State Bar No. 06666450

500 E. San Antonio, Suite 201

El Paso, TX 79901

Ph. (915) 546-2059

Fax (915) 533-5520

CERTIFICATEOF SERVICE

certifY that a true and correct copy of the foregoing STATE'S NOTICE TO SEEK THE DEATH

above-styled callse was delivered to Mr. Joe Spencer, Attorney for the Defendant, on this the .Q_

12.

j~~~~

JAIME .ESPARzA~ .. y

District Attorney

• • 1

1 REPORTER'S RECORD.

TRIAL COURT CAUSE NO. 20120D04103

2 VOLUME 1 OF 1 VOLUMES

3

4 THE STATE OF TEXAS ) IN THE DISTRICT COURT

)

5 vs )· EL PASO COUNTY, TEXAS

)

6 LUIS SOLIS GONZALEZ ) 243RD JUDICIAL DISTRICT

7

8

9

10 **************************

11 PRETRIAL HEARING

12 **************************

13

14

15 On the 2nd day of October 2014, the following

16 proceedings came on to be heard in the above-entitled and

17 numbered cause before the Honorable Luis Aguilar, Judge

18 Presiding, held in El Paso, El Paso County, Texas.

19 Proceedings reported by Machine Shorthand.

20

21

22

23

24

25

Andrea Quezada, CSR

243rd District Court

• • 2

1 APPEARANCES

2 DENISE BUTTERWORTH

Assistant District Attorney

3 SBOT No. 24012368

500 E. San Antonio, Room 201

4 El Paso, Texas 79901

(915) 546-2059

5

ATTORNEY· FOR THE tSTATE

6

JOE AURELIANO SPENCER

7 SBOT NO. 18921800

JOSHUA SPENCER

8 SBOT NO. 24067879

1009 Montana Ave.

9 El Paso, Texas 79902

(915) 532-5562

10

ATTORNEYS FOR DEFENSE

11

12 CHRONOLOGICAL INDEX

VOLUME 1

13

Thursday, October 2, 2014

14 Page Vol.

Case called/announcements of counsel 3 1

.15 Argument by Ms. Butterworth regarding 38.43 3 1

16 State's Witnesses Direct Cross Voir Dire Vol.

Nicholas Ronquillo 29 35 1

17

Response by Mr. Spencer 36 1

18 Response by Ms. Butterworth 40 1

Response by Mr. Spencer 45 1

19 Issue of Speedy Trial 46 1

Response by Mr. Spencer 47 1

20 Response by Ms. Butterworth 47 1

Court Reporter's Certificate 53 1

21

22

23

24

25

Andrea Quezada, CSR

243rd District Court

• ------~·~---------------

3

1 (Open court; Thursday, -October 2, 2014; defendant

2 present.)

3 THE COURT: The Court calls the lawsuit styled

4 'the State of Texas versus Luis Solis-Gonzalez, 20120004103.

5 Announcements of counsel.

6 MS. BUTTERWORTH: Denise Butterworth on behalf of

7 the State, Your Honor. The State is ready.

8 MR. SPENCER: Good morning, Your Honor. Joe

9 Spencer on behalf of Mr. Gonzalez, and we're ready.

10 THE COURT: Good morning, sir.

11 We're here on a pretrial hearing. I sent you-all

12 a letter. The issue that I'd like to address by both counsel

13 this morning is the applicability of 38.43, code of criminal

14 procedure.

15 Says the State of Texas?

16 MS. BUTTERWORTH: Your Honor, for purposes of the

17 hearing this morning, if I may on the record just very briefly

18 so that we are on the same page as to exactly what we're

19 attempting to do this morning. My understanding from the Court

20 is that we're going to have a discussion regarding 38.43, which

21 is the new law that the state legislation has passed that has

22 gone into effect on this particular death pen~lty case.

23 I believe -- and this is where Mr. Spencer can

24 correct me if I incorrectly summarize his position. But we are

25 here before you today because under 38.43, there are provisions

Andrea Quezada, CSR

243rd District Court

• • 4

1 that would allow the Stat~ and the defense.to come together to

2 have a discussion or to talk about whether there could be an

3 agreemerit on which ~terns ultimately to send to DPS for

4 testing -- for DNA testing in this particular case.

5 Mr. Spencer, on behalf of the defendant, is in

6 the position that he would like each and every piece of evidence

7 that was collected by law enforcement in this particular case to

8 be tested or possibly screened to see if it's possible to be

9 tested for DNA testing, that in this case, there is not an

10 agreement as to specific pieces of evidence to test, that the

11 defense is asking that all evidence that contained biological

12 material be tested or screened for DNA.

13 And let me just pause right there to get an

14 affirmation that I am· correctly summarizing the defendant's

15 position in this particular case right now for this hearing.

16 Is that correct, Mr. Spencer?

17 THE COURT: Ms. Butterworth, direct comments to

18 the bench, please.

19 MS. BUTTERWORTH: I'~ sorry. That•s·my

20 understanding of the defense and why we're here.

21 The State's position

22 THE COURT: Let me interrupt you if you don't

23 mind.

24 Mr. Spencer, before we progress here, is that an

25 accurate assessment of your position?

Andrea Quezada, CSR

243rd District Court

• • 5

1 MR. SPENCER: I thi'nk that's ·skeletally accurate.

2 It's accurate, Your Honor. It's hot completely all-encompassing

3 on my position. But so far, she has not articulated anything

4 that is not accurate.

5 THE COORT: Thank you.

6 You may proceed, ma'am.

7 MS. BUTTERWORTH: In· this particular case,

8 Your Honor, when the State reads the st~tute, I read it to say

9 that if we cannot come to an agreement -- and in this particular

10 case, we have submitted every single piece of evidence that

11 contains biological material. We have submitted that physical

12 eviden~e to DPS for testing. But it is our position that under

-

13 this statute, if the State and the defense cannot come to an

14 agreement, that the statute requires us to come before you for

15 the Court to determine which pieces of evidence should be tested

16 for DNA or should be submitted.

17 Currently, we have submitted everything. What I

18 would like to do this morning is, for the record, to make sure

19 the record is complete depending on where this goes, I would

20 like to submit to the Court the lab tests that have currently

21 been generated by DPS. And they have been turned over to the

22 defense. And we've got -- as of today's date, we have a lab

23 report from DPS from May 9th; 2013, August 12th of 2013, April

24 29th of 2014, June 13th of 2014, June 17th of 2014, and July

25 17th of 2014, and November 19th of 2014.

Andrea Quezada, CSR

243rd District Court

6

1 I'd like to submit to the Court these DPS

2 reports, the corresponding documentation that the defendant has

3 received copies of all of these lab reports. And then I have

4 also created a spreadsheet for the Court -- and I'll tender a

5 copy to the defense -- oi so far the DNA results that have been

6 yielded from the testing that's been done as of todayLs date ..

7 If I may approach?

8 THE COURT: Yes, ma'am.

9 Ma'am, did you say "November 19th of 2014"?

10 MR. SPENCER: That's what she said, Your Honor.

11 MS. BUTTERWORTH: I meant September. If I

12 meant September of 2014 for the last lab report.

13 THE COURT: All right. Okay.

14 Mr. Spencer, do you have a copy of these

15 exhibits?

16 MR. SPENCER: I have a copy of what she just now

17 handed me, Your Honor. I do have -- if I understand the Court's

18 question, I do have lab reports from June 13th of 2014, June

19 17th of 2013, July 7th of 2014, September 19th of 2014. I don't

20 believe I have an April 29th of 2014, an August 12th of 2013, or

21 May of 2013, at least that I am aware of. Those three~ I don't

22 believe I have.

23 MS. BUTTERWORTH: And to cover our bases, I have

24 hand delivery slips that have been signed by the defense for all

25' of these lab repbrts.

Andrea Quezada, CSR

243rd District Court

• • 7

1 THE COURT: Let me do this real quick.

2 Mr. Spencer, we're going to make a complete copy

3 of what's been tendered to the Court, and you can review it.

4 That will be your copy.

5 MR. SPENCER: Thank you, Your Honor.

6 THE COURT: All right.

7 MS. BUTTERWORTH: What I've also gorie through and

8 done for purposes of this hearing is, every single piece of

9 evidence that was collected due to the investigation of this

10 particular case that has been submitted to DPS was photographed.

11 And so for the Court's perusal, I'm assuming in the next coming

12 days when the Court is making the decision, I've got all of the

13 photographs of every sin~le piece of evidence that waa collected

14 and has· also been submitted to DPS for testing. So when we

15 statt referring to some of these pieces of evidence when we

16 start to get into a little bit of the facts of the case, all of

17 the photographs are here. There's a photograph of each piece of

18 evidence.

19 And for the record, for example, JE02 -- JE02,

20 when collected by law enforcement, it's marked and given that

21 identification number. JE02 is, in this particular case, a

22 kitchen knife that's found on the kitchen counter. So at any

23 given time when the Court's lobking at any of ihese lab reports

24 or looking at the results or the DNA results yielded, there is a

'·

25 photograph of JE02 of what that item is and where it'~ found in

Andrea Quezada, CSR

243rd District Court

8

1 the house. And I've got all the photographs of each piece of

2 evidence that was collected.

3 And for the Court to look at also, I've got the

4 crime scene video that law enforcement does at their crime

5 scenes where they basically take a camcorder or a video recorder

6 and they record an entire crime scene. In.this particular case,

7 .it's the house on Bengal Street. And so for the Court to

8 understand basically what the layout is of this particular case

9 of the crime scene as far as what this house looked like or what

10 was going on~ I've also got the videotape of that.

11 And so I've got all the photos and then a

12 complete copy of the videotape for the Court to look at the

13 house. And that's all available for the Court to look at when

14 determining if there is an argument as to items that are

15 absolutely crucial or that the def~nse is asking to be tested.

16 We-will have a photograph corresponding to what that item is,

17 where it's found within the house.

18 If I may briefly direct the Court to the

19 spreadsheet that I've tendered to the defense. Does the Court

20 have the spreadsheet?

21 THE COURT: No, I don't.

22 MS. BUTTERWORTH: I think we're making a copy of

23 it right now.

24 While we're waiting for the spreadsheet and for

25 purposes of the record, Judge, I'd like to give a brief summary

Andrea Quezada~ CSR

243rd District Court

• • 9

1 of what .is h~ppening at this particular house on Bengal Street,

2 the crime scene that law enforcement is investigating.

3 They are -- on May 31st of 2012, El Paso Police

4 Department is dispatched out to 1594 Bengal, number G [sic].

5 That's located in El Paso County in the State of Texas. When

6 officers arrive and ultimately when the scene is sealed and

7 en6losed, they find three victims inside of that house found

8 dead.

9 The first victim is Eric Santiago -- DeSantiago,

10 and he is found dead inside of the kitchen with his face wrapped

11 with duct tape. There are burns to his chest that are believed

12 to have been caused by, based just on the scene, oil that was

13 heated up in the kitchen. He's got those burns to his chest,

14 and he has numerous stab wounds and blunt force injuries to his

15 head.

16 The second victim is Marysol Saldivar. She is

17 found in the living room with blunt force trauma injuries to her

18 head. And the third victim is clllllllll Hill who is a

19 13-year-old little girl who is found in her upstairs bedroom --

20 it's a pink bedroom-- in her bed covered up, tucked into her

21 bed wearing only a T-shirt and underwear. And there is a slight

22 ligature mark to her neck upon closer examination.

23 The cause of death in these particular cases,

24 after an autopsy was conducted, was that clllllllll H . , the

25 13-year-old little girl found in her bed, died from the ligature

Andrea Quezada, CSR

243rd District Court

• • 10

1 strangulation around her neck. And then Marysol Saldivar,

·.,

who

2 was found in the living room, her cause of death was both stab

3 wounds and blunt force trauma to the head, which is also the

4 same cause of death for the male, DeSantiago, found in the

5 kitchen.

6 And as a brief continuous summary, the defendant

7 did turn himself in to law enfdrcernent. He met them. He had

8 originally gone to Mexico where he took his four-year-old little

9 boy who was present for all of this. He was at the scene. He

10 had been with his mother, Marysol Saldivar, when she got horne.

11 The defendant had taken that little boy, his biological son,

12 with him after he left the Bengal ho0se, had gone to Mexico~

13 werit o~er to his parents' house, who live in Mexico, delivered

14 the four-year-old little boy, and then left. He ultimately told

15 his parents what he did.

16 The dad was cooperative with law enforcement and

17 met law enforcement here in El Paso, turned over the little boy,

18 explained to law enforcement that his son did tell him that he

19 had done this. And then the defendant met law enforcement at

20 the border and turned himself in.

21 Once h~ was in the United States, he was taken

22 and interviewed at the CAP offices on Raynor, where he gives a

23 statement where he admits that oh that day, he rode his bicycle

24 over to the victim's house, broke into the house at about ten in

25 the morning and waited for them to get horne later that day. I

Andrea Quezada, CSR

243rd District Court

·~------~·~-------

11

1 believe he said that the first person to g~t into the house was

2 Mr. DeSantiago, who arrived at ~bout 4:30. Then he says

3 clllllllll Htll arrived second, and Marysol Saldivar.arrived

4 third.

5 He in his statement, he admits to killing.

6 Mr. DeSantiago and Ms. Saldivar, but says he doesn't remember or

7 has memory issues regarding the incident and doesn't remember

8 anything regarding clllllllll H4lllc I think he ultimately

~ denies killing her, but he does confess to tying her up during

10 this process upstairs and having her be tied up in this little

11 boy Llll slllllllll 'room, the four-year-old.

12 Ultimately, as far as evidence is concerned in

13 this case, the house itself containing all of the evidence --

14 that's part of the evidence in this particular case. The four

15 year old, when he's turned over to the police by his

16. grandfather, his clothes are taken also because there appears to

17 be bloodstains on some of his clothes.

18 And then the defendant -- and I forgot to mention

19 this. When he left the house on Bengal Street, he took Marysol

20 Saldivar's truck. That's how he was able to go over into

21 Mexico. So that truck was recovered. And then so whatever

22 evidence that is contained or found in that truck is also pieces

23 of evidence that were collected from the El Pasd Police

24 Department. I believe there's some blobd swabs and pieces of

25 blood found in the truck as well. And then there was blood

Andiea Quezada, CSR

243rd District Court

• • 12

1 found on the child's clothing.

2 So that's a brief -- for purposes of this record,

3 those w6uld be the three areas that evidence is being taken from

4 regarding this investigation; the house on Bengal, the little

5 boy's clothes when he's turned over, the truck that's found in

6 Mexico and taken -- brought back to the United States; And then

7 also when the defendant turned himself in, the El Paso Police

8 Department collected his clothing, which he was wearing. And

9 .that -- so those are pieces of evidence as well. And then

10 anything evidentiary-wise that is collected from all three of

11 the victims during their autopsies, their clothes, fingernail

12 scrapings, those type of things that were collected during the

13 autopsy are also pieces of evidence that have all now, at this

14 point while we're looking at 38.43, have been turned over to DPS

15 for DNA testing.

16 With that summary, I'd like to go through so far

17 the DNA results that have been yielded from some of these items

18 that have been tested by DPS. And so these are the results that

19 we have as of today's date, which is October 2nd of 2014. I've

20 created this spreadsheet to give the Court some information so

2i that the Court can look through the lab results. But I've taken

22 what the DNA results are from the lab reports and I've put them

23 in the spreadsheet.

24 I can tell the Court that when we were looking

25 initially at looking at what to turn over to DPS for DNA

Andrea Quezada, CSR

243rd bistrict tourt

• ·~----

13

1 testing, the idea wa~ to make sure that any other pos~ible

2 defendant could be excluded; And that obviously -- the other

3 part of at least -- and that would be a very -- I would.say that

4 an important goal of the DPS testing was to eliminate any other

5 suspects or defendants in this particular case.

6 And then the other·reasons for the DNA testing

7 was to strengthen the State's case to make sure that we would

8 have, hopefully, ideally, the defendant's blood or DNA inside of

9 the Bengal house. And I forgot to mention that when the

10 defendant turned himself in and his clothes were collected by

11 CAP, there were also photographs, and I've got them included for

12 the Court to look at. There were photographs taken of his hands

13 where the defendant has a couple of, for lack of a better

14' medical term, cuts on some of his hands. And in his statement

15 to the police department, he explained that at some point during

16 all 6£ this, he h~d gotten cut by the knife that was -- that he

17 used or that was involved in at least the victim of DeSaritiago

18 and Ms. Saldivar. And so the photographs of when·he turned

19 himself in show that he's gbt some of these wo~nds or these cuts

20 on-his fingers.

21 One of the goals of the DNA testing, at least

22 from the State's position, was to try to put the DNA of the

23 defendant ihto this crime ~cene and then also have the victims'

24 DNA be found on the defendant himself, from the clothes -- and

25 when the Court looks at the photos, you can see that the jeans

Andrea Quezada, CSR

243rd District Court

• ----~-----------

14

1 he's wearing when he turned himself in are very visibly covered

2 in blood.

3 So I woulq like to go through what the DNA has

4 yielded so far -- the testing has yielded so far on some of

5 these various items that have been submitted. In my

6 spreadsheet, I have given the item number, which will have

7 photographs to correspond to, and then what the DNA results

8 yielded.

9 JE02, Your Honor, is a kitchen knife that was

10 found on the kitchen counter at the home on Bengal Street. And

11 there was a swab taken from both the handle and the blade that

12 come back positive for blood. And then when the DNA testing is

13 conducted, the DNA matches -- on JE02 from the handle, it's a

14 combination or a mixture of DeSantiago and the defendant. On

15 JE02, the blade, the DNA results yielded a match to DeSantiago.

16 And then it read that it was a combination. And that second

17 part of that mixtur~, the data was low level data, so no

18 comparison could be made.

19 JE69 is a knife that is found in the upstairs

20 restroom. You'll see a photograph of it that it's found in the

21 drawer in the upstairs restroom with visible blood on it. JE69,

22 when there was a swab taken f_rom the blade, the DNA test results

23 yielded that it belongs to DeSantiago and the defendant. A swab

24 from the handle of JE69, the same knife, yielded,DNA results

25 from DeSantiago and the defendant.

Andrea Quezada, CSR

243rd District Court

• • 15

1 JE04 is a third knife that's· found" in this crime

2 scene on Bengal Street. It is a broken knife. The handle of

3 the knife was found on the kitchen floor, and the blade of that

4 knife is found in the kitchen sink. So JE04 is the handle that

5 was found oti the kitchen floor that yielded a result of

6 DeSantiago and the defendant.

7 JE38, the blade of the knife found in the kitchen

8 sink, was DeSantiago and the defendant. .I

9 There were a pair of blue jeans, girl blue jeans

10 that were found in C _room, JE72, that had apparent

11 blood on them, and that blood comes back to the defendant.

12 JE68 is a shoelace that is found in the same

13 drawer that the bloody kitchen knife was found in in the

14

15

16

upstairs restroom. It's a pair of black shoelaces.

defendant, in his statement, says that he tied up

H.using these shoelaces.

c- The

When they are tested, there is a

17 DNA profile mixture positive for blood. But due to the

18 potential number of contributors, no interpretations were made.

19 Item number 5208670 -- and that's how it was

20 called. It wasn't given the initialling and a number. That's a

21 tennis shoe that is taken from the defendant when he turned

22 himself in and was at CAP. There was apparent blood on his

23 tennis shoe t~at he was wearing that they took from him frbm

24 CAP. And the DNA results on that yielded beSantiago and

25 Saldivar. So we have two of the three victims' blood coming

Andrea Quezada, CSR

243rd District Court

• • 16

1 back on the defendant's -shoe that he was wearing when he turned

2 himself in and was taken into custody.

3 BM03 is the black T-shirt from the defendant also

4 taken when he was in custody. That DNA comes back to the

5 defendant.

6 MM01 is a Mickey Mouse baseball cap that was

7 collected from the four-year-old little boy, LJII AJIII

8 slllllll, when his grandfather turned him over to police. There

9 was apparent blood on that Mickey Mouse baseball cap, and that

10 blood was tested, tested positive for blood. And that blood

11 matches his mother, Marysol Saldivar.

12 There was a bloody piece of tissue found inside

13 of the Nissan Titan, which is the truck that belonged to

14 Ms. Saldivar that the defendant drove away from Bengal Street to

15 go to Mexico. That's JE113. That was found inside of the

16 truck. And that blood comes back to -- or that DNA comes back

17 to DeSantiago.

18 There were again these blue jeans that I'm

19 referencing that the defendant had on him when he's interviewed

20 or taken into custody at CAP. 'It's item BM01. That comes

21 back -~ that blood from the defendant's jeans comes back to a

22 mixture of DeSantiago and Ms. Saldivar.

23 JE17 is a piece of toilet paper. And when the

24 Court looks at these photographs that I'm producing, there are

25 various pieces of tissue. Some of them are just tissue, and

Andrea Quezada, CSR

243rd District Court

• • 17

1 some of them are what law enforcement is describing as like a

2 makeshift finger cast from -- we are deducing that when the

3 defendant cut his finger -- and it's corresponding to tha cut on

4 his finger in this photograph when he is taken into custody.

5 And he said it's bleeding a lot. Around the house, there are

6 these makeshift finger casts that ke~p falling off. So I guess

7 he keeps putting new ones on. So some of those are tested. And

8 then others aren't so obviou~ as finger ~asts, but they're just

9 pieces of tissue with blood on them around the house at Bengal

10 Street.

11 JE17, if you'll look at the photograph, is a

12 piece of toilet paper with apparent blood on it that is found on

13 top of the victim as she is laying there on the living room

14 floor. And for .lack of a better word, it's being described

15 found on top of her crotch area. But if you look at the photos,

16 that is where the toilet paper is found. It's right on top of

17 her. And that DNA comes back to the defendant.

18 JE24 is a piece of duct tape that is found in the

19 upstairs bathtub in the restroom where the bloody knife was

20 found and -~ in the drawer along with the shoelaces. That piece

21 of duct tape was examined, and we know just from the scene

22

23

24

And upon closer examination of C - H-

itself that Mr. DeSantiago was found duct taped in the kitchen.

the 13 year old,

you can see remanence of duct tape on her face on her check if

25 you look at the photographs. And you can see due~ tape on

Andrea Quezada, CSR

243rd District Court

• 18

1 her -- I believe it's her ankles and her hands, a little bit of

2 remanence of how it w~s taken off, but it left that duct tape

3 glue.

4 JE24, there's a piece of duct tape that's found

5 in the upstairs bathtub that comes back to DeSantiago and

6 Ms. Saldivar.

7 JE20, there's another piece of duct tape with.

8 toilet paper found in a hamper. Stain 1 of that duct tape comes

9 back,to the defendant and Marysol Saldivar. Stain 2 of that

10 duct tape comes back to a mixture of clllllllll Hill,

-

11 Mr. DeSantiago, the defendant, and Ms. Saldivar. So all four of

12 them are on as a mixture on that stain 2 of that duct tape. And

13 then stain 3 of the duct tape of JE20, item JE20, there was no

14 DNA profiles obtained.

15 There was also some duct tape found, JE30. That

16 duct tape is found in the little boy LJII A~ room. The DNP).

17 results of that come back to DeSantiago and the defendant. JE28

18 is another piece of duct ~ape that's found in a child's bag, a

19 kid's bag, .also inside of LJII A~ room, the little boy.

20

21

22 girl, and the four-year-old little boy,

H-

And the DNA results on that one come back to the defendant,

Mr. DeSantiago, Ms. Saldivar, Ms. the 13-year...;.old little

LJII sllllllll So we

23 have five people in that mixture of that piece of duct tape

24 found in the little boy's,room.

25 JE24 is a makeshift finger cast that ~s found

Andrea Quezada, CSR

243rd District Court

• • 19

1 next to a vacuum outsi~e of the upstairs restroom. The DNA

\

2 results yielded on that come back to the defendant and

3 Mr. DeSantiago.

4 JE66 is a finger splint, another one of these

5 makeshift finger cast splints that is found next to the bed of

6 c room -- C - H~ bed in her room. And

7 that comes back to the defendant.

8 There is a tennis shoe that has no shoelaces in

9 it, a black Jordan tennis shoe, JE70, that is found in LJII

10 AJIII S - room, the little boy's room, with an apparent

11 bloodstain on the tennis shoe that's missing the shoelaces, and

12 that blood comes back to DeSantiago.

13 There is JE22. It's a ~hite T-shirt that is

14 found in the upstairs restroom. And the DNA results on that

15 come back to Mr. -- with apparent blood, and they come back to

16 blood matching Mr. DeSantiago. The collar of that same shirt

17 was tested, and that came back to -- hang on just a second on

18 this one because I think that came back to a mixture. Let me

19 look.

20 THE COURT: Ms. Butterwoith, is the DPS lab

21 representative here? i

22 MS. BUTTERWORTH: Yes, Your Honor.

23 THg COURT: If he would assist you, he can sit ~t

24 counsel table with you.

25 MS. BUTTERWORTH: Okay. I'm going to come back to

Andrea Quezada, CS~

243rd District Court

• ·~----

20

1 JE22 because I had my secretary type up from my notes for this

2 chart, and I think that the chart is let me just -- I can

·3 probably-- I'll come back to that one, Judge. So let me hold

4 off on the record.

5 THE COURT: Ms. Butterworth

6 MS. BUTTERWORTH: Okay. So on JE22, I'm going to

7 need to amend my chart. JE22 is the collar of the T-shirt of

8 that white shirt that's found on the restroom floor. And it

9 comes back as a mixture. My chart says "DeSantiago" but should

10 read "the defendant." If we can -- and I can submit a new

11 chart.

12 THE COURT: Let me make sure I'm with you. JE22?

13 MS. BUTTERWORTH: Correct. There were different

14 swabs taken from that piece of clothing. It's a white T-shirt.

15 One of the stains is tested, an apparent bloodstain, and it

16 comes back to DeSantiago.

17 THE COURT: Okay.

18 MS. BUTTERWORTH: The collar of that shirt is

19 tested, which is traditionally done to try to determine the

20 'wearer of the shirt. So on JE22, when the collar of that shirt

21 is tested, it comes back consistent to the defendant. It's a

22 mixture, and the defendant is identified as one of the

23 contributors.

24 THE COURT: "DeSantiago" is incorrect on the

25 collar of the T-shirt?

Andrea Quezada, CSR

243rd District Court

• • 21

1 MS. BUTTERWORTH: That is correct. It should

2 read "defendant."

3 MR. SPENCER: Your Honor, from which report? May

4 I inquire as to on which report --

5 THE COURT: That's the last item on the --

6 MR. SPENCER: I see that on this spreadsheet.

7 I'm just wondering-- she's referring to the DPS lab report.

8 I'm wondering what date.

9 MS. BUTTERWORTH: April 29th of 2014.

10 THE COURT: Thank you.

11 MS. BUTTERWORTH: There were also some white

12 socks that were inside or along with that T-shirt or shirt that

13 was collected under JE22. Those white socks are tested, and

14 they yield a DNA result coming back to Mr. DeSantiago.

15 JEA3 is a swab that was taken fiom a milk

16

17

18

room, L.

gallon-- a gallon of milk that was found in the little boy's

A~ room. If you look at the photographs, there

an apparent bloodstain on the gallon of milk. And that

19 yielded-- it says, "No DNA profiles obtained." It tested

20 positive for blood, but no DNA profiles obtained.

21 JE99 is the duct tape removed from

22 Mr. DeSantiago's head, and that's coming back belonging to

23 Mr. DeSantiago. JE99, there was also a rag that was in the duct

24 tape that was removed from his head. That is yielding a DNA

25 result matching Mr. DeSantiago.

Andrea Quezada, CSR

243rd District Court

--j·-·- • 22

1 The fingernail clippings from the autopsy were

2 taken, JE94 and JE95. The fingernail clippings from

3 Mr. DeSantiago during the autopsy, when they are examined, they

4 are both coming back matching Mr. DeSantiago.

5 JE78 is the right fingernail clippings of

6 clllllllll Htll that were taken during her autopsy. The DNA

7 yielded from her right fingernail clipping on JE78 is yielding a

8 mixture belonging to the defendant and Ms. H4lll_

9 The left shoe taken from the defendant from when

10 he was at CAP, item number 5208670, is yielding a result

11 belonging to Mr. DeSantiago.

12 BM03 is the black T-shirt from the defendant.

13 Also, there's a blood stain matching Ms. Saldivar. Fingernail

14 clippings were taken of Marysol Saldivar, JE57, right and left

15 fingernail clippings, and they are both matching Ms. Saldivar.

16 And then BM01, the stained jeans that were taken

17 from the defendant while he was at CAP, one of the stains is

18 matching coming back to Mr. DeSantiago.

19 Some of these items, there were multiple stains

20 and multiple swabs taken from these various pieces of evidence.

21 And so those are all individual swabs or stains that are in the

22 process of being tested, and we're waiting for DNA results.

23 At this point, Mr. Spencer and I have asked

24 Nicholas Ronquillo is here from DPS. And very briefly, I have-

25 inquired as to where they ar~ in the process of testing, and he

Andrea Quezada, CSR

243rd District Court

·-- ------------~.llr-----------------

23

1 has the number.

2 Do you know how many items were submitted to you

3 in the lab?

4 MR. RONQUILLO: So far --

5 THE COURT: Ms. Butterworth, do you want him from

6 the stand?

7 MS. BUTTERWORTH: No, I'll just proffer, if it's

8 okay.

9 THE COURT: That's fine.

10 MS. BUTTERWORTH: There were a total of 206 items

11 trying to comply with this new article, article 38.43, because

12 there was no initial agreement made by the State .and the

13 defense. 206 items have been submitted to DPS for this type of

14 testing. Mr. Ronquillo has represented to myself and

15 Mr; Spencer this morning that they are about halfway done at

16 this. point and that he believes th.at they would be able to be

17 finished with all of the DNA testing and have all of those

18 results by June of 2015.

19 It is the State's contention, based on the

20 summaries of the lab reports given and the DNA results that have

21 been yielded so far -- and that is why I've got photographs of

22 every single piece of evidence that has been turned over from

23 the Vqrious sources that I've explained or outl~ned earlier in

24 the argument, plus a copy of the video crime scene of the entire

25 house. There has b~en nothing coming back that. has yielding

Andrea Quezada, CSR

243rd District Court

• ·-- 24

1 anything other than what we believe t6 -- that the evidenc~ is

2 showing so far, that the defendant was there in this house

3 acting alone and committing this particular capital murder.

4 We've got the victims' DNA coming back on him,.on

5 his clothes that he's wearing, his shirts that he's wearing. We

6 have his DNA inside of the house coming back on various items to

7 include some of the kniv~s and the tissue that's being found

8 with the apparent blood on them.

9 It's the State's position at this point that as

10 we stand here today that the DNA has flushed out what is going

11 on in this particular case and that the DNA results have

12 yielded -- that the people that we know are involved, thereLs

13 been nothing yet that has come back at any of the relevant biood

14 from the knives or from the crime scene coming back to an

15 unknown, that all of the DNA so far in what has come back is

16 yielding who we know is involved in this case, from 'the

Clllllllll

17

18

19

defendant to Ms. Saldivar to Mr. DeSantiago to

and to the four-year-old boy that was involved, L. A~.

It is the State's position that 38.43 does not

Htll

20 read unequivocally that mandatorily in a death penalty case

21 every single piece of evidence that·contains biological material

22 be tested. That is the State's position, and I believe that's

23 partially why we're at this hearing today. We do not contend or

24 feel that when we read the statute that that's what it's saying.

25 We believe the statute was designed -- and I will add my two

Andrea Quezada~ CSR

243rd District Court ·

• • 25

1 cents here -- that the part where the statute says for the state

2 and the·defense to come together to make an agreement as to what

j evidence ~hould be tested I believe was unrealistic on the part

4 of legislation because there is no doubt that Mr. Spencer is

5 going to fiercely defend a defendant in a death penalty case.

6 And he is not going to -- and I don't believe any criminal

7 defense attorney in the State of Texas is going. to come to an

8 agreement as to what.should be tested and that we just work

9 around this or work it out between the state and the defendant.

10 The defense -- the defendant is looking at the

11 death penalty in this case. And I don't believe that

12 Mr. Spencer would be alone. I think almost ~11 of the criminal

13 defense bar in the State of Texas who are looking at this

14 statute would never agree with the State of Texas as to what

15 pieces of evidence sh6uld be tes~ed~ And there was no doubt in

16 my mind th~t when we began this process, that Mr. Spencer's

17 answer would be, I want every single piece of evidence tested.

18 Because wh~t it in fact ends up doing is

19 partially, whether it's the motivation or not, the reality is

20 that this ends up significantly delaying the trial. We are in a

21 position now, since we had to turn over, based on this new

22 legislation, 206 pieces of evidence that were collected from the

23 various different sources of-this case to be tested by DPS.

24 When the statute was written, there was nothing -- there was

25 nothing dbne a~ far as the position of DPS. DPS now has 206

Andrea Quezada, CSR

243r~ District Court

26

1 pieces of evidence to test along with their other workload and

2 schedule.

3 There was nothirt~ taken -- there was no provision

4 that takes into account the personnel or the monetary expenses

5 or the overload that would occur to these various Texas DPS labs

6 that are also just attempting, along with the State, to comply

7 with this statute~

8 I believe that this statute was designed for the

9 Court to make a determination, based on the facts presented to

10 it, which items should be tested for DNA. And so I have

11 attempted to give the Court an idea of the DNA that has come

12 back so far. I've attempted to give the Court an idea of the

13 evidence that was collected in this particular case. I've done

14 so by providing all of the lab reports, my spreadsheet. And I

15 am tendering to the Court photogiaphs of every single piece of

16 evidence that was collected in this particular case and a

17 videotape of the house so the Court can look at the house in its

18 entirety.

19 We believe at this point that any significant

20 item that should be test~d for DNA has been tested so far. We

21 would argue against the position that 3B.43 requires a mandatory

22 no discussion, no-thought process look at what is relevant and

23 what is not relevant to be tested in a death penalty case. We

24 believe that the pieces of evidence in this particular case that

25 are relevant to be tested have been tested based on the DNA

Andrea Quezada, CSR

243rd District Court

• • 27

1 results th~t have been yielded so far. We believe that we .have

2 sufficiently complied with 38.43, and we're asking for the Court

3 to make a ruling basically that not every single piece of

4 evidence be tested for DNA.

5 THE COURT: Ms. Butterworth, let me ask you, how

6 was it determined what to submit to the lab? I.guess what I'm

7 looking for is a -- all -- one from each room or a blood sample

8 from each room? A splattering? Any -- the logic behind that.

9 MS. BUTTERWORTH: The logic -- so far, everything

10 has been turned over to DPS. But the logic is, we're in a

11 position that we're looking at ·what was collected by law

12 enforcement. And I'm not sure if I'm answering the Court's

13 question correctly. But the law states that it's evidence

14 containing biological material.

15 The argument could be made -- and I think this is

16 also something very important for the legislation to keep in

17 mind. The law says it's any piece of evidence that could

18 possibly contain biological material. Well, in this particular

19 case, when the Court looks at the photos and whoever ends up

20 reviewing this decision if we get there, looks at the photos,

21 you can see that a lot of these ite~s have very obvious blood

22 stains. Obviously, we're not scientists. But using our reason

23 and common sense and understanding of what occurs in that house,

24 there's ~ lot of obvious visible blood stains.

25 But then you start looking at, for example, a

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1 cell phone that is found on top of the kitchen counter that has

2 no bloodstains. Well, there is an argument that could be made

3 that it could still contain biological evidence from epithelial

4 cells. We know enough to know that any time somebody touches a

5 piece of evidence or a piece of anything, the argument could be

6 made that they~ve left their DNA by means of leaving their

7 fingerprints or from the fingerprints, epithelial cells, like

8 something from their skin.

9 So when I sat there and looked at this in its

10 entirety trying to understand what we needed to do and knowing

11 that I would need to be prepared for an argument from the

12 defense, we submitted everything that could possibly be argued

13 that has biological evidence. So that cell phone is found on

14 the kitchen counter. It doesn't have obviou~ blood~tains; We

15 went ahead -~~and I'm dealing with DPS, and they're asking for

16 guidance, but there's no blood on this. And I've told them,

17 "But it could theoretically contain biological evidence because

18 there could be epithelial cells left on it.''

19 THE COURT: Ms. Butterworth, is Mr. Ronquillo

20 here today?

21 MS. BUTTERWORTH: He is, Your Honor.

22 THE COURT: I would like for him to explain on

23 the record the July 5th, 2014 letter that he addressed. What

24 I'm looking for in particular is the time frames. In the

25 letter, he refers to projections as to. a completion date. I

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1 would like the record to reflect Mr .. Ronquillo's position.

2 MS. BUTTERWORTH: For clarification for the

3 record, it's a June 5th letter. I believe the·court said July,

4 but it's dated on my copy June 5th. And I would like to tender

5 a copy of that letter into this hearing so whoever reviews this

6 can understand where DPS falls in this particular issue, what

7 we're trying to deal withi 38.43.

8 THE COURT: I want a more thorough explanation of

9 constraints, issues, projections, etc.

10 MS. BUTTERWORTH: Would the Court prefer that he

11 take the witness stand?

12 THE COURT: Yes.

13 Sir, would you please raise your right hand?

14 (Witness sworn.)

15 THE COURT: Thank you.

16 Ms. Butterworth, and again, you understand what

17 I'm looking for.

18 MS. BUTTERWORTH: I know.

19 NICHOLAS RONQUILLO,

20 having been first duly sworn, testified as follows:

21 DIRECT EXAMINATION

22 BY MS. BUTTERWORTH:

23 Q. Mr. Ronquillo, at this point, if you could state your

24 full name ior the record.

25 A. My name is Nicholas Ronquillo.

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30

1 Q. If you could briefly describe your position or your

2 title within the Texas Department of Public Safety.

3 A. I am the DNA section supervisor and technical leader

4 for the Texas Department of Public Safety crime lab here in El

5 Paso.

6 Q. If you could explain to us briefly your position with

7 DPS regarding this particular case, how it came to you, what

8 problems were presented. Specifically I'd like to talk to --

9 maybe we could start with -- and for the record, how many pieces

10 of evidence were initially submitted on this particular case?

11 Do you remember?

12 A. There were just a little over 30 initial items for DNA

13 analysis.

14 Q. Okay. So before the new law went into effect, the

15 State of Texas submitted to the Texas Department of Public

16 Safety 30 items -- various items that -- in an attempt to yield

17 DNA relevant -- pertinent DNA to the prosecution or the defense

18 in this case, 30 items were sub~itted. The l~w changed, and

19 then we ended up submitting a total, including I guess the first

20 30, a total of 206 items in this particular case; is th~t

21 correct?

22 A. There were an additional 156 items initially listed on

23 the submission form. However, that has grown to 206 with the

24 initial submission simply because, for example, a backpack was

25 listed. However, there were items within that backpack, and

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31

1 that's how that number has grown.

2 Q. Okay. And just for clarification for whoever reviews

3 this, is the backpack that you're referring ·to a little boy's

4 backpack that -was .found in the white Nissan truck?

5 A. No.

6 Q. A different backpack?

7 A. A different backpack that was found I believe in the

8 yard of the crime scene on Bengal Street.

9 Q. Okay. On the outside. And if we look at the

10 photographs, there's a backpack and a bicycle. The entire

11 bicycle -- if you look at the backyard, that's what's found in

12 the backyard of the Bengal Street residence. Is that what we're

13 referring to?

14 A. We are referring to the backyard of the Bengal Street

15 residence.

16 Q. So it's grown because an entire backpack was

17 submitted, and then you had to break down the components or the

18 different various things that were found inside?

19 A. That's correct.

20 Q. All right. Can you tell us the problems that DPS is

21 having in attempting to comply with 38.43 as it stands right

22 now, which is to test every sirigle piece of evidence that was

23 submitted to you from the El P~so Police Department?

24 A. So some of the challenges that the Texas Department of

25 Public Safety throughout the State as a whole, the challenge

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1 mainly is just the volume of eviden6e and to logistically

2 analyze that evidence within a reasonable amount of time.

3 Currently,. our policy for a homicide case that does not fall

4 under article 38.4~ is that we will only accept ten items of

5 evidence plus the known reference samples. So this is also a

6 policy in place just simply so we can limit the amount of items

7 that are being sub~itted and so we can reasonably get these

8 items analyzed in a reasonable amount of time.

9 So as you can imagine, 206 items are well above

10 those ten items that are currently in place in our policy. So

11 there's issues with personnel. We I have two individuals,

12 qualified analysts, working this case on a regular basis.

13 There's also a cost that is incurred with the Texas Department

14 of Public Safety because we are a non-charging agency, so

15 there's no fee for service. And the State of Texas takes oh

16 that cost, ~nd the DNA analysis is very expensive.

17 There's also the challenge in analyzing these

18 kinds of evidence because -- Ms. Butterworth did touch on this

19 before. There are some items that may have biological material.

20 But as per policy, the Texas Department of Public. Safety does

21 not do touch DNA simply because usually there's not enough DNA

22 there to analyze using our current processes. So these are

23 usually given to another lab to do, a fee-for-service lab. So

24 as a whole, it is a big challenge.

25 Q. Just for clarification, when you say that generally

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1 your policy is to not do any kind of DNA testing for touch DNA,

2 that would be DNA attempting to -- or testing that is attempting

3 to yield DNA from epithelial cells. Is that a gross way of

4 simplifying?

5 A. I think that's an oversimplification. Epithelia

This text is long and has been trimmed here. Open the source document for the complete record.