Ramirez, Juan Raul Navarro

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-77,084

JUAN RAUL NAVARRO RAMIREZ, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM DENIAL OF MOTION FOR

FORENSIC DNA TESTING IN CAUSE NO. CR-0551-04-G

FROM THE 370TH JUDICIAL DISTRICT COURT

HIDALGO COUNTY

RICHARDSON, J., delivered the opinion of the Court.

OPINION

Appellant appeals from a trial court order denying his motion for post-conviction

DNA testing filed pursuant to Texas Code of Criminal Procedure Chapter 64.1 Appellant

1

References to Chapters or Articles in this opinion are to the Texas Code of Criminal

(continued...)

Ramirez–2

raises the following two issues for review:

1. Whether the Trial Court Erred in Denying [Appellant’s] Motion for

Post-Conviction DNA Testing.

2. Whether [Appellant] is Entitled to Post-Conviction DNA Testing.

After reviewing the record, we find that Appellant’s points of error lack merit.

Consequently, we affirm the trial court’s order denying testing.

I. BACKGROUND

A. Offense Facts

Appellant was convicted and sentenced to death in 2004 for intentionally and

knowingly causing the deaths of Jimmy Almendarez, Juan Delgado III, Jerry Hildalgo,

Juan Delgado Jr., Ruben Castillo, and Ray Hidalgo by shooting them with a firearm

during the same criminal transaction.2 In our opinion on Appellant’s direct appeal

challenging his conviction and sentence, we summarized the offense facts as follows:

This trial involved the gang-related, “pseudo-cop” robbery-homicide

of six men, some of whom were rival gang members of the “Bombita” gang

to which appellant belonged.

In the early morning hours of January 5, 2003, police responded to a

1

(...continued)

Procedure unless otherwise specified.

2

Appellant was separately convicted and sentenced to death for a second count of capital

murder for intentionally and knowingly causing the deaths of these same individuals in the

course of robbing or attempting to rob them as a member of a criminal street gang. On direct

appeal, we vacated Appellant’s conviction for this second count of capital murder on double

jeopardy grounds. Ramirez v. State, No. AP-75,167, slip op. at 10–12 (Tex. Crim. App.

Dec. 12, 2007) (not designated for publication).

Ramirez–3

9-1-1 call and found the bodies of six men at 2915 East Monte Cristo Road

in Edinburg. There were two houses on the property that were separated by

a dirt driveway. Police found the body of Jerry Hidalgo in the kitchen of

the larger house that was located on the west side of the driveway (the

“west-side house”).3 He was lying face down on the floor and his hands

and legs were bound with extension cords. He had sustained numerous

gunshot wounds, and there was a bullet hole in his back and blood around

his head. The living room had been ransacked, and it appeared that

someone had rummaged through one of the bedrooms, leaving the bed

mattress standing on its side.

The body of Juan Delgado, III, was lying face down in the grass

outside the front door of the smaller house on the east side of the driveway

(the “east-side house”). He had suffered a fatal gunshot wound to the back

of his neck. There was a live 9-millimeter round in the grass near his body.

As they entered the house, police discovered the bodies of Juan Delgado,

Jr., who had been shot in the back and head, and Jimmy Almendarez, who

had suffered multiple gunshot wounds, including a fatal head wound.

Police also found a magazine clip underneath a stereo speaker. The bodies

of Ray Hidalgo and Ruben Castillo were in another room. Ray had

sustained two gunshot wounds to the head and was missing an eye. Ruben

had suffered multiple gunshot wounds including shots to the buttocks.

Police also found a burnt marijuana cigarette and small baggies of

marijuana and cocaine in that room. The “east-side house” had also been

ransacked, and the victims’ pockets had been pulled out.

Some of the ballistics evidence recovered from the scene included

7.62 by 39 caliber bullets and casings.4 Police also recovered a cooking pan

and some black skull caps from the west-side house and a “cold weather

knit cap” from the open field behind the houses. There were three cars

parked at the scene: an inoperable dark-colored Dodge Ram that belonged

to Rosie Gutierrez; a small maroon car that had been rented by Jimmy

Almendarez; and a brown Buick Regal that belonged to Luis Villa.

Rosie Gutierrez was present during the shootings and called 9-1-1

3

The “west-side house” had a kitchen, living room, two bedrooms, and a utility room.

There was a storage shed behind it. An outhouse was located behind the “east-side house.”

4

This is the type of bullet[] used in an AK-47.

Ramirez–4

after the assailants left the scene. She testified that she and her sons, Jerry

and Ray Hidalgo, lived at 2915 East Monte Cristo Road, and that the

Delgados, Almendarez, and Castillo were her sons’ friends. On the night of

January 4, she played dominoes with her sons in the west-side house. Ray

went to the east-side house with Delgado, Jr., at around midnight. Shortly

thereafter, she and Jerry finished playing dominoes and went into the living

room. Ms. Gutierrez suffered from a medical condition that affected her

legs, so she laid down in a borrowed hospital bed she kept in the living

room to watch television while Jerry talked on the phone with a friend. She

heard loud booming noises that sounded like fireworks; then someone

banged on her door, and three or four men entered her house. The leader, a

man who spoke Spanish and who had a long gun with holes in the barrel,

pointed the gun at her head and told her to lie down and face the wall. He

was wearing a ski mask and a jacket with the word “Police” on the sleeves

and back. He ordered his cohorts to tie up Ms. Gutierrez and Jerry, and they

used extension cords to do so. The man who tied up Ms. Gutierrez was

unmasked and carried a smaller handgun. The other men who restrained

Jerry were masked, and she was unsure if they had guns. The leader

demanded “drugs, money, gold and guns” and kept hitting Jerry in the head

with his gun. Jerry responded that they did not have anything. “They” told

Jerry to take off his gold necklace and asked for the car keys. Jerry

answered that the car was “no good” and that they would get caught if they

left in it. “The guy” pulled off Jerry’s tennis shoes and asked if anyone

wanted them. He then dropped the tennis shoes, stating, “Let’s go,” and

they left.

Shortly thereafter, “a man with a ski mask” carrying a long gun and

wearing a jacket with “Police” on it came back into the house and

ransacked the living room. He left, came back inside, shot Jerry “a whole

bunch of times,” then left again. Ms. Gutierrez then untied herself and

called 9-1-1.

Police later questioned Luis Villa, who was also present at the scene

on the night of the shootings. Villa told police that he and Castillo took

Delgado, Jr. to “Ray’s house” at 9:30 p.m. Villa and Castillo then tried to

go to a nightclub. Villa was denied entrance to the club because he did not

have proper identification, so they returned to Ray’s house at about 10:30

p.m. Delgado, III, came to the house with a friend about 12:30 a.m.

Castillo went outside to use the bathroom, and Villa heard a voice tell

Castillo: “Hey you mother fucker get your ass on the floor . . .” Delgado,

Ramirez–5

Jr., said there were a lot of people with guns outside. Villa, who was seated

on a sofa, heard some gunshots and jumped out the window. He told

Delgado, Jr., to follow him, but he did not do so. As Villa ran away, he

heard “two kinds of machine guns shooting at the same time.”

Villa’s friend Jose Carreon testified that he called Villa on his cell

phone around 1:00 or 1:30 a.m. Villa, who was “scared, tired, [and]

running,” said that “they were shooting at him, and they shot his cousins.”5

Carreon heard gunshots in the background. Carreon also lived near the

scene and heard gunshots outside.

Police received information about a “pseudo-cop” robbery and took

various suspects into custody. Police also discovered that suspect Rodolfo

Medrano (a/k/a “Kreeper”) had given his friend Miguel Tinajero some

weapons to hide. Tinajero testified that on January 20, Medrano gave him a

long case and said, “Take this and put it away.” Tinajero later opened the

case and saw three military-style rifles inside. Tinajero placed the weapons

inside the trunk of a car at his father’s residence in Elsa. When he opened

the trunk, he saw that other weapons had already been placed inside. He

testified that Medrano had been to his father’s residence before and knew

where the car keys were kept. Tinajero notified police about the guns. Two

of the guns, State’s Exhibits 107 and 113, had apparent bloodstains and

were submitted for DNA testing. The stain on the stock area of State’s

Exhibit 107 was inconclusive. The stain on the muzzle of State’s Exhibit

113 was consistent with the DNA profile of victim Delgado, Jr.

Appellant was eventually arrested and gave an audiotaped statement

to police. In his statement, he admitted that he “used to hang around with”

some “TCB”6 gang members. He said that at 7:00 or 8:00 p.m. on January

4, Robert Garza (a/k/a “Bones”) called and asked him if he wanted to make

some money. “Bones” told him it was about “some jelly beans,” which

means “some pounds.” Bones told him an amount, which appellant

thought was “a thousand pounds or a little bit more of something.” He

agreed to participate and met Bones at the home of a person who went by

5

Delgado, Jr., and Delgado, III, were step-brothers. Villa testified at trial that Delgado,

Jr., was his cousin.

6

When booked, Appellant said he was connected to the “Bombita” gang. This gang was

formerly part of the “Tri-City Bombers” or “the TCBs.” See infra [at 7].

Ramirez–6

the name Juanon (a/k/a “Barney”). Some of the other people present

included Salvador Solis, Freddy Krueger, and Marcial Bocanegra. Most of

them were wearing black, some wore ski masks, and all of them wore

gloves. Appellant stated that “it was supposed to be a pseudo-cop” type of

robbery, and they “were supposed to go in there to look for drugs and

weapons.”

Appellant stated that when he arrived at Juanon’s, the guns and

bullets had already been cleaned of fingerprints. Appellant, the last one to

choose his weapon, selected a “cuerno de chivo.”7 Appellant said the men

drove to the scene in a black or dark blue truck and a light brown Escalade,

and the “one with the Escalade” was “the one who was telling us what was

going down.” The “one with the Escalade” said: “They got guns and there

might be some people in there, too, so you gotta put them down ‘cause the

family members got some guns.”

Appellant stated that they hid in the tall grass in a field behind the

houses with their high-caliber weapons. When a man stepped outside to use

the bathroom, they got up, “started rushing the houses,” and “rushed him

in.” Appellant, Salvador, and another man went into one house where

“there was only a lady and a guy.”8 Appellant stated: “We heard . . . some

gunshots in the other house, but we didn’t know what was it about, so we

didn’t think nothing bad was happening.” Appellant stated that they put the

male victim down on the floor at gunpoint and that he ordered one of the

men to tie up the female victim, who was in bed. Appellant checked the

house for other people, drugs, or weapons but did not find anyone or

anything. Appellant then “tied down the guy with an orange extension

cord” and “started demanding the drugs.” The male victim responded that

he had nothing and that all of the drugs were in the other house, so

appellant “started beating him up” and “hit him with a pan a couple of

times.” Appellant also took a gold chain from his neck, which he later

threw away.

Appellant said that Salvador kept an eye on the door and that

7

Officer Ramiro Ruiz testified that the literal Spanish to English translation of “cuerno de

chivo” is “the horn of a goat or a ram, how it curves,” but that he has heard the term used to

describe “the AK-47 or 7.62 by 39 caliber rifle.”

8

This was the “west-side house” in which the body of Jerry Hidalgo was found.

Ramirez–7

appellant and “the other guy” held the male victim at gunpoint. After a

while, appellant heard gunshots at the other house. He went outside and

saw the others running out of the house, saying, “Let’s go. Let’s go.” He

asked one of them “where was everything at” and was told “that nothing

was there, and that we gotta leave.” Appellant heard more gunshots as he

and his two cohorts were running away. They ran across the field, got into

the truck, and left. Everyone met back at Juanon’s, where appellant heard

Bones say, “I shot the mother fuckers.”9

Investigator David Valdez testified that four high-caliber bullet

projectiles, State’s Exhibits 229, 230, 231, and 232, were recovered from

Jerry Hidalgo’s body during his autopsy. Forensic firearms and toolmarks

examiner Tim Counce testified that these exhibits “were .30 caliber class’

and offered “a more discriminating opinion to include a 7.62 by 39

millimeter cartridge.”

When appellant was booked into the county jail, he told detention

officer Robert Mendiola that he was affiliated with the “Bombita” gang.

Investigator Robert Alvarez with the Edinburg Police Department testified

that the “Tri-City Bombers” gang used to call themselves “the TCBs,” but

now call themselves “the Bombitas.” Alvarez testified that some TCB

members formed a rival gang, the Texas Chicano Brotherhood, or “the

Chicanos.” Alvarez further testified that the “Bombitas” and “Chicanos”

have “a green light against each other,” meaning they could fight or kill

each other “without asking permission from the [gang] command structure.”

Alvarez testified that appellant associated with TCB members and had a

tattoo that was indicative of TCB membership. Rosie Gutierrez testified

that victims Jerry and Ray Hidalgo were “Chicanos.”

Defense witness Marissa Martinez testified that she and a friend

visited the east-side house a few days before the murders. Villa, Castillo,

Delgado, Jr., and Ray Hidalgo were there. She testified that Villa showed

her that they were “stashing drugs” in a room at the east-side house. The

drugs were “stacked to the ceiling” and “covered with a blue tarp.” She

testified that there were “a lot” of drugs, estimating the amount at “[l]ike

1,000” pounds. She told her boyfriend Robert Cantu that there was a lot of

marijuana at Ray Hidalgo’s house and that she had met Villa there. She

9

DNA testing revealed that Robert Garza a/k/a/ “Bones” could not be excluded as a

contributor of DNA on a black cap found at the scene.

Ramirez–8

testified that Cantu was angry at her for going over to the house. She

further testified that Villa was a member of the “Texas Syndicate” gang.

Ramirez v. State, No. AP-75,167, slip op. at 2–9 (Tex. Crim. App. Dec. 12, 2007) (not

designated for publication) (footnotes in original). The jury charge authorized the jury to

convict Appellant of capital murder as a principal or a party under Texas Penal Code

§ 7.02(a)(2).10 The jury returned a general verdict finding Appellant guilty as alleged in

the indictment.

B. Direct Appeal and Habeas Proceedings

Appellant raised twenty-seven points of error on direct appeal, including

challenges to the sufficiency of the evidence to support his conviction and the

voluntariness of his statements to investigators. This Court rejected these and Appellant’s

other points of error and affirmed his conviction and sentence. See id. at 2.

In his initial state habeas application filed pursuant to Article 11.071, Appellant

raised nineteen allegations, including a contention that he is actually innocent of the

capital offense and a renewed challenge to the voluntariness of his statements. While his

initial writ application was still pending before the trial court, Appellant filed an

“amended application” in the trial court containing sixteen claims. Among other

allegations, Appellant asserted for the first time that his confession was not just

10

“A person is criminally responsible for an offense committed by the conduct of another

if . . . acting with the intent to promote or assist the commission of the offense, he solicits,

encourages, directs, aids, or attempts to aid the other person to commit the offense.” TEX. PENAL

CODE § 7.02(a)(2).

Ramirez–9

involuntary, but false. We denied relief on Appellant’s initial writ application and

dismissed his amended application as a subsequent writ application that did not meet any

of the exceptions provided for in Article 11.071, § 5. Ex parte Ramirez, Nos. WR-

71,401-01 & WR-71,401-02 (Tex. Crim. App. Oct. 14, 2015) (not designated for

publication).

II. CHAPTER 64 AND THE STANDARD OF REVIEW

“There is no free-standing due-process right to DNA testing, and the task of

fashioning rules to ‘harness DNA’s power to prove innocence without unnecessarily

overthrowing the established system of criminal justice’ belongs ‘primarily to the

legislature.’” Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011) (quoting

District Attorney’s Office v. Osborne, 557 U.S. 52, 62 (2009)); see also Ex parte Mines,

26 S.W.3d 910, 914 (Tex. Crim. App. 2000) (stating that there is no constitutional right to

post-conviction DNA testing). The Texas Legislature created a process for such testing

in Chapter 64.

Under Chapter 64, the convicting court must order DNA testing only if the court

finds that:

1. the evidence “still exists and is in a condition making DNA testing

possible”;

2. the evidence “has been subjected to a chain of custody sufficient to

establish that it has not been substituted, tampered with, replaced, or altered

in any material respect”;

3. “there is a reasonable likelihood that the evidence contains biological

Ramirez–10

material suitable for DNA testing; and”

4. “identity was or is an issue in the case[.]”

Art. 64.03(a)(1). Additionally, the convicted person must establish by a preponderance of

the evidence that:

1. he “would not have been convicted if exculpatory results had been obtained

through DNA testing; and”

2. “the request for the proposed DNA testing is not made to unreasonably

delay the execution of sentence or administration of justice.”

Art. 64.03(a)(2).

In reviewing a judge’s ruling on a Chapter 64 motion, this Court gives almost total

deference to the judge’s resolution of historical fact issues supported by the record and

application-of-law-to-fact issues turning on witness credibility and demeanor. Reed v.

State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017). But we consider de novo all other

application-of-law-to-fact questions. Id. at 768–69.

III. APPELLANT’S CHAPTER 64 MOTION AND THE TRIAL COURT’S RULING

In October 2015, Appellant filed in the trial court his Chapter 64 motion for post-

conviction DNA testing. In this motion, Appellant requested testing of two items:

(1) a black ski mask with the word “Police” written on it (admitted into

evidence at trial as State’s Exhibit 211); and

(2) a black knit cap with an “8 Ball” logo on it (admitted into evidence as

State’s Exhibit 215).

Appellant addressed the requirements for testing under Article 64.03. He stated

Ramirez–11

that investigators recovered both hats from the “west-side house” where the trial evidence

showed that Rosie Gutierrez and her son, Jerry Hidalgo, were located during the

offense.11 Appellant asserted that both hats still existed and were in a condition making

DNA testing possible. He averred that there was a reasonable likelihood that both hats

contained biological material, emphasizing that a hair was present on the inside of State’s

Exhibit 211 (the black ski mask with the word “police” on it). Appellant also contended

that the two exhibits had been subjected to a chain of custody sufficient to establish that

they had not been tampered with and asserted that identity was an issue in the case.

Appellant further asserted that his request for DNA testing was not made to unreasonably

delay the execution of his sentence. Appellant’s affidavit pursuant to Article 64.01(a-1)

accompanied his motion. See Art. 64.01(a-1) (“The motion [for Chapter 64 DNA testing]

must be accompanied by an affidavit, sworn to by the convicted person, containing

statements of fact in support of the motion.”).

But Appellant devoted the majority of his motion to attempting to show that he

would not have been convicted if his requested DNA testing yielded exculpatory results.

Appellant defined “exculpatory results” as establishing “who it was that entered [the

west-side] house and left behind the two hats” at issue. We disagree with Appellant’s

11

The direct appeal record shows that the black ski mask with the word “Police”

embroidered on it (State’s Exhibit 211) was recovered from on top of a kitchen cabinet in the

west-side house and that the black knit cap with the “8 Ball” logo on it was found on the living

room floor. On cross-examination, Gutierrez testified that she saw a fourth man in the kitchen

wearing a mask.

Ramirez–12

definition of “exculpatory results” given the facts of this case. Appellant confessed to

participating in this home invasion with multiple assailants, and almost all of the acts

mentioned in Appellant’s confession were corroborated by the elderly aunt of two of the

victims who was also tied up and injured. It is uncontroverted that Appellant, his

codefendants, and all of the victims were members of two violent street gangs that dealt

in large quantities of drugs and had “green lights” to kill each other, and Appellant was

convicted and sentenced to death under the law of parties. As a result, regardless of what

DNA, if any, was found in the hats, it could not have provided any true exculpatory

evidence. If Appellant’s DNA was contained in either hat, it would have inculpated him.

But if another person’s DNA was discovered, those results would have been meaningless

given the aunt’s testimony regarding the hats and the number of assailants and dead

victims who could have worn the hats.

Appellant explained that Marcial Bocanegra’s statement to police upon

Bocanegra’s arrest “was the key break in the case” and aligned with Rosie Gutierrez’s

trial testimony. Appellant said that Gutierrez testified “that men came in to her home

wearing clothing that said ‘Police.’” Appellant asserted that Gutierrez and Bocanegra

both described:

a similar man giving orders to the others in the home, a man who Bocanegra

knew as “Lenny” and that the police claim[ed] was Ramirez. Both

Bocanegra and Gutierrez undoubtedly describe[d] the same person.

Importantly, Bocanegra explained to the police that “Lenny” dropped his

hat at the crime scene. There is a high probability that one of the two hats

that Ramirez requests DNA testing on was in fact the hat dropped by

Ramirez–13

“Lenny,” and the requested DNA testing can establish that person’s identity.

(Citations omitted). Appellant asserted that the State had “mistakenly conflated

[appellant] with ‘Lenny’ at trial.”

Appellant emphasized that Bocanegra signed a post-conviction affidavit in which

he “unequivocally stated that [appellant] is not the ‘Lenny’ that [Bocanegra] described” in

his statement to police. Appellant argued:

If the currently requested DNA testing provides exculpatory results, it will

provide further support that [appellant] in fact was not one of the men who

entered Gutierrez’s house, nor is he “Lenny.” The DNA testing that

[appellant] requests can identify the assailants that entered Gutierrez’s

house. If exculpatory results are obtained, it would show that, by a

preponderance of the evidence, [appellant] would not have been convicted,

whoever “Lenny” is may be identified, and the police conflation with

Ramirez and “Lenny” can be disproven.

(Internal footnote omitted).

Appellant asserted that his conviction “rested nearly entirely on the recorded

statement he gave to police.” Appellant acknowledged that, in this statement, he said that

“he went into the house where Gutierrez and her son were, that he was the one giving

orders, and that he was the one who beat Gutierrez’s son.” But citing his subsequent

habeas application, Appellant emphasized that he had since provided evidence that his

confession was false. Appellant asserted that the trial court should consider the evidence

that his confession was false when determining whether he would not have been

convicted if exculpatory results were obtained. However, no results from testing the DNA

samples in question could have invalidated Appellant’s confession, given all of the facts

Ramirez–14

of this case.

After a hearing on Appellant’s motion, the trial court denied it in a written order.

In pertinent part, the court found that Bocanegra’s affidavit, which was attached as an

exhibit to Appellant’s motion, was not credible.12 Citing Drew v. State, 743 S.W.2d 207,

288 (Tex. Crim. App. 1987), the court noted that “testimony from an accomplice that

exonerates a defendant without exposing the accomplice to further criminal liability is to

be viewed with suspicion.” The court also stated that Appellant had not shown that his

confession was actually false. Instead, the court found, Appellant had merely presented

evidence that some defendants have given false confessions. Therefore, the court stated

that it would consider the confession in deciding whether to grant or deny Appellant’s

motion. The court further found that Gutierrez testified at trial that she did not recognize

either State’s Exhibit 211 or State’s Exhibit 215 as the mask worn by the leader of the

men who entered the west-side house and assaulted and then killed her son, Jerry

Hidalgo.

In its conclusions of law, the trial court stated in pertinent part:

In light of the significant evidence of [appellant’s] guilt, [appellant] has not

shown that he would not have been convicted based upon the results of

additional forensic DNA testing. Article 64.03 requires a convicted person

to establish by a preponderance of the evidence that he would not have been

convicted if exculpatory results had been obtained through DNA testing.

12

In relevant part, Bocanegra stated in the affidavit that he had never met the person he

knew as “Lenny” before the night of the offense. Bocanegra further stated that he met Appellant

“for the first time in the Hidalgo County Jail” and that Appellant is not the “Lenny” individual

that Bocanegra described to police.

Ramirez–15

TEX. CODE CRIM. PROC. art. 64.03(a)(2)(A) (2012). Exculpatory results

that would merely “muddy the waters” are insufficient to show that the

defendant would not have been convicted. Kutzner v. State, 75 S.W.3d 427,

439 (Tex. Crim. App. 2002). Given the testimony at trial that neither State’s

exhibit 211, nor State[’s] exhibit 215 was the mask worn by [appellant],

exculpatory results on said exhibits cannot prove by a preponderance of the

evidence that [appellant] would not have been convicted. Further,

[appellant] has failed to establish that the individual he is alleged to be must

have been wearing either State’s exhibit 211 or State[’s] exhibit 215. Three

individuals entered the [west-side] residence and only two masks were

recovered. [Appellant] has failed to make the requisite showing to require

further DNA testing under Chapter 64 of the Code of Criminal Procedure.

IV. APPELLANT’S ARGUMENTS ON APPEAL

In this Court, Appellant again argues that he has met all of Chapter 64’s

requirements to have DNA testing conducted on State’s Exhibits 211 and 215. Appellant

re-urges his argument that he has shown by a preponderance of the evidence that he

would not have been convicted if exculpatory results had been obtained through DNA

testing of State’s Exhibits 211 and 215 (i.e., the existence of a third party’s DNA profile

on either exhibit). We disagree for the aforementioned reasons and reiterate that DNA

testing on the requested exhibits could not have provided exculpatory results given the

facts of this case. Appellant notes that the State’s argument at trial was that he was the

leader of the men who entered the west-side house. Appellant says that the State asserted

that Appellant was “Lenny,” the person whom Bocanegra told police: tied up and beat

Gutierrez’s son, Jerry Hildalgo; directed Bocanegra to tie up Gutierrez; asked where the

drugs and money were; and searched the west-side house. Appellant again emphasizes

that Bocanegra stated in his post-trial affidavit that Appellant was not the man Bocanegra

Ramirez–16

knew as Lenny. Therefore, he argues that “if the requested DNA testing of the hat or ski

mask do not reveal a match to [appellant], this will provide further support that

[appellant] was not one of the men who entered Ms. Gutierrez’s house and that he

certainly isn’t the man named ‘Lenny.’”

As to the trial court’s ruling denying him such testing, Appellant first alleges that

the trial court abused its discretion in finding that Bocanegra’s affidavit is not credible.

Appellant argues that the trial court provided no analysis for that adverse credibility

determination other than its citation to the Drew case. Appellant contends that Drew is

not on point because it involved an accomplice who recanted a statement inculpating the

defendant. Appellant asserts that, unlike the recantation in Drew, Bocanegra’s affidavit is

not inconsistent with his original statement to the police because Bocanegra never

implicated Appellant in that statement. Appellant argues that Bocanegra’s affidavit

simply clarifies that the man he identified in his statement to police as “Lenny” was not

Appellant.

Appellant next contends that the trial court abused its discretion by finding that his

confession was not false. Citing his subsequent habeas application, Appellant argues that

the trial court failed to acknowledge or address his evidence that “causes of involuntary

and false confessions [were] applicable to [appellant], given his intelligence, age, and

social history.”

Appellant further alleges that “it was error for the trial court to consider [his]

Ramirez–17

confession at all in deciding whether to grant his request for post-conviction DNA

testing.” To support this assertion, Appellant notes that Article 64.03(b) prohibits a court

from using the fact that a defendant confessed as the sole basis for finding that identity

was not an issue in the case under Article 64.03(a)(1)(C).

V. ANALYSIS

A. Article 64.03(a)(1)’s and Article 64.03(a)(2)(B)’s Requirements

In his motion for DNA testing, Appellant asserted that the two items he sought to

have tested contained biological material, were in a condition making DNA testing

possible, and were subject to a sufficient chain of custody. See Art. 64.03(a)(1)(A) and

(B). He also averred that identity was an issue in his case. See Art. 64.03(a)(1)(C). He

further contended that he did not make the testing request to unreasonably delay the

execution of his sentence or the administration of justice. See Art. 64.03(a)(2)(B). The

State did not contest these assertions. The trial court did not make express findings that

Appellant had met Article 64.03(a)(1)’s and Article 64.03(a)(2)(B)’s requirements, but

even if they had been met, Appellant still could not satisfy Article 64.03(a)(2)(a) because

DNA testing of these exhibits could not provide the exculpatory results that Appellant

claims.

B. Article 64.03(a)(2)(A)’s Requirements

Appellant advances essentially the same argument in each of his two points of

error. We understand Appellant to assert that: (1) he has shown by a preponderance of

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the evidence that he would not have been convicted of capital murder if DNA testing of

State’s Exhibits 211 and 215 yielded the presence of a third party’s DNA profile; and (2)

the trial court erred by concluding otherwise. However, we disagree with both

contentions for the reasons discussed below.

According to the evidence presented at trial, a group of heavily armed Bombitas

gang members seeking to steal drugs invaded the property where Rosie Gutierrez lived in

the “west-side” house with her sons, Ray and Jerry Hidalgo. The Hidalgo brothers

belonged to a rival gang, the Chicanos. Jerry Hidalgo had Chicanos tattoos on his neck

and chest. The Bombitas and Chicanos had a “greenlight” or pre-authorization from their

respective gang leadership to fight or kill one another. The Bombitas group embarked on

the robbery attempt knowing that armed individuals would be on the premises and that

these people would need to be “put down.”

Ray Hidalgo and four other victims died inside or near the smaller, east-side house

on the property. The remaining victim, Jerry Hidalgo, was killed inside the west-side

house. Gutierrez, who was also in the west-side house during the attack but survived,

testified about the events leading up to Jerry’s death.

Gutierrez stated that, shortly after she heard “boom boom boom” noises nearby,

she heard pounding on her front door. A man carrying a long gun with distinctive holes

in the barrel came through the door and pointed the weapon at her head. This man was

wearing a jacket with “Police” on the back and sleeves and a ski mask. Gutierrez

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described this man as the leader who directed the actions of the two or three more men

who entered the house immediately after him. All but the second man who entered the

house were wearing masks. But when shown both State’s Exhibits 211 and 215

(respectively, the black ski mask with the word “Police” on it and the black knit cap with

the “8 Ball” logo on it), Gutierrez testified that they were not the masks that any of the

intruders in her house had been wearing.

At the first man’s direction, the second man (who was armed with a hand gun)

bound Gutierrez with a telephone cord. Also at the first man’s direction, the second and

third men carried Jerry from the living room sofa into the hallway, where they bound him

with extension cords. The first man beat Jerry while demanding drugs, money, and gold.

After Jerry denied knowing about any drugs or money on the premises, the first man told

the rest of the intruders, “Let’s go.” However, the first man returned immediately after

the other intruders left. He walked deliberately through the house, upended a few pieces

of furniture, and then shot Jerry to death.

The State also presented evidence that, after his arrest, Appellant gave a detailed

confession admitting his involvement in the offense. Appellant admitted that he and his

cohorts were armed and that he knew that the group would likely have to kill people at the

targeted property to achieve their objective. When they arrived at the property, Appellant

stated, he helped to “rush” the first man they saw into the east-side house. While hearing

gunshots in the east-side house, Appellant went to the west-side house in which there was

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only “a lady and a guy.” Appellant then admitted to actions that closely tracked the

actions of the first intruder whom Gutierrez described in her testimony. However,

Appellant denied that he personally shot anyone, that he knew anything about anyone

having been shot in the west-side house, or that he personally saw anyone else being shot

elsewhere on the property.

Count One of the indictment alleged that Appellant intentionally and knowingly

caused the deaths of the six victims in the same transaction by shooting them with a

firearm. The jury charge permitted the jury to find Appellant guilty as either a party or a

principal. The jury returned a general verdict finding Appellant guilty as alleged in the

indictment.

Appellant now contends that he should be allowed to DNA test a black ski mask

with the word “Police” on it (State’s Exhibit 211) and black knit cap with the “8 Ball”

logo on it (State’s Exhibit 215) because exculpatory results will show by a preponderance

of the evidence that he never would have been convicted. With the hats alone, we

reiterate Appellant cannot make this showing.

Contrary to Appellant’s assertion, his confession is properly considered in

determining whether he has met his burden under Article 64.03(a)(2)(A). Article

64.03(b) by its plain language only prohibits the convicting court from finding that

identity was not an issue at trial under Article 64.03(a)(1)(C) solely on the basis that the

defendant pleaded guilty or nolo contendere or made a confession or similar admission. It

does not preclude the convicting court from considering a convicted person’s confession

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or similar admission in making its determination under Article 64.03(a)(2)(A).

Further, the trial court did not abuse its discretion in disregarding Bocanegra’s

affidavit or the evidence that Appellant presented in his subsequent habeas application in

making its determination under Article 64.03(a)(2)(A). First, the trial court acted within

its discretion in finding that Bocanegra’s affidavit was not credible. Whether

Bocanegra’s post-trial affidavit is consistent with or contradicts his earlier statement to

police is beside the point. The court reasonably expressed skepticism at the post-trial

assertions that Bocanegra—Appellant’s fellow gang member and accomplice—gave in an

attempt to exculpate Appellant without further inculpating himself in the offense. See

Drew, 743 S.W.2d at 288.

Second, neither Bocanegra’s affidavit nor the evidence that Appellant presented in

his subsequent habeas application about the veracity of his confession are properly

considered in making the Article 64.03(a)(2)(A) determination. In making that

determination, we do not consider post-trial factual developments. Reed v. State, 541

S.W.3d 759, 774 (Tex. Crim. App. 2017). “Instead, we limit our review to whether

exculpatory results ‘would alter the landscape if added to the mix of evidence that was

available at the time of trial.’” Id. (quoting Holberg v. State, 425 S.W.3d 282, 287 (Tex.

Crim. App. 2014)). In addition, we dismissed Appellant’s subsequent application as an

abuse of the writ without reviewing the merits of the claims he raised therein; therefore,

any evidence presented in that subsequent application was not properly before the trial

court in ruling on Appellant’s motion for post-conviction DNA testing.

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In cases involving accomplices, a defendant can only meet his burden under

Article 64.03(a)(2)(A) if he can show that testing, if exculpatory, will establish that he did

not commit the crime as either a principal or a party. See Gutierrez, 337 S.W.3d at 900;

see also Wilson v. State, 185 S.W.3d 481, 485 (Tex. Crim. App. 2006) (stating that, even

if DNA testing showed that an additional perpetrator was involved, it would have “no

effect whatsoever” on the appellant’s conviction as a party). Appellant’s statement to the

police, coupled with Gutierrez’s trial testimony, is highly probative of his guilt as a

principal (as the man who actually shot Jerry Hidalgo). But Gutierrez denied that the man

giving orders in her house and who shot Jerry wore either a black ski mask with the word

“Police” written on it or a black knit cap with an “8 Ball” logo. Thus, the existence of a

third party’s DNA profile on either of these two items of evidence does not exculpate

Appellant of committing Jerry Hidalgo’s murder as a principal or a party.

Under the circumstances, Appellant has not established by a preponderance of the

evidence that he would not have been convicted if exculpatory results had been obtained

through DNA testing of the two items at issue. Given the number of accomplices,

murdered victims, party liability, testimony of the Aunt, admitted physical evidence, and

Appellant’s confession, the hats could not have produced true exculpatory evidence in

this case. Thus, he has not met Article 64.03(a)(2)(A)’s requirements and the trial court

properly denied DNA testing. Appellant’s points of error one and two are overruled.

Having determined that Appellant failed to meet his burden under the statute, we

affirm the convicting court’s order denying the motion for forensic DNA testing pursuant

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to Texas Code of Criminal Procedure Chapter 64.

Delivered: May 5, 2021

PUBLISH