Mireles, Gustavo Lopez ( 2015 )

GUSTAVO L. MIRELES
3001 S. EMILY DR.
McCONNELL UNIT
BEEVILLE, TEXAS 78102
March 14, 2015
Texas Court of Criminal Appeals
Attn: Hon. Abel Acosta (Clerk)
P.O. Box 12308
Capitol Station
Austin, Texas 78711
Dear Clerk:
If you could would you please be so kind and file this
Application for Writ of Mandamus in the appropiate court.
If this application is not properly addressed, can you
please be so kind and notify me and/or return the application
with instructions to correct the error.
Thank you for your time and attention to this very important
and urgent matter. Please notify me when filed.
Sincerly,
/s~ra/xwa il- flll,Mkz
Gus~vo L. Mireles
ENCLOSURES:
CC: File, Leonor Matano 580 Irene Dr., canyon-Lake, Texas 78133;
she has "power of attorney•.
This document contains some
pages ~hat are of poor quality
at the t1me of imaging.
i
1
\
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MOTION FOR LEAVE
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AT AUSTIN, TEXAS
GUSTAVO LOPEZ MIRELES §
APPLICANT
§
Vs. § NO~----------------------
HIDALGO COUNTY DISTRICT ATTORNEY§ This document contains some
OFFICE, RENE GUERRA, AND THE § pages that are of pooli' qMaRn~
McALLEN TEXAS DEPARTMENT OF at the time of imagililQJ. ··
PUBLIC SAFETY DNA CRIME FIELD
LABORATORY SEROLOGIST ORLANDO §
OCHOA, 139TH DISTRICT COURT
JUDGE BOBBY FLORES
RESPONDENTS §
Motion for Leave to File J.tpplication
For WRIT OF MANDAMUS
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
NOW COMES, Gustavo Lopez Mireles, applicant, complaining of,
District Attorney Rene Guerra, and Serologist Orlando Ochoa,
respondents and pursuant to Rule 52.1 of the Texas Rules of
Appellate Procedure (former Rule 211) in Cri~ inal Cas~s, moves
this court to grant leave to file this application for a writ of
mandamus tendered contenpuraneously with this motion.
Applicant prays that the Motion be gran~ed, the said
application for Mandamus be filed and set down for a hearing,
that the relief requested be granl:~d, general and special,
including a stay of proceedings below until the matters ,; .. t ~l
complained of in said atppl ication are,\cured.
Res~ec::uly Submitted
/s/_ gQ~ (11~
J.
Applicant Pro-se
Gustavo L. Mireles
TDCJ-ID #1128895
3001 S. Emily Dr.
McConnell unit
Beeville, Texas 78102
CERTIFICATE OF SERVICE
I hearby certify that a copy of the above Motion for Leave
to file application for Wri t of Mandamus was d)=iliver~e,d pr mailed
to Respondent at Responden.t•'s adress, on this /Ji"':~-~-20<14.
1
/s/ ~-of``~
··Apllicant Pro-se
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AT AUSTIN TEXAS
GUSTAVO LOPEZ MIRELES
§
APPLICANT
Vs .
§ NO--------------------------
HIDALGO COUNTY DISTRICT ATTORNEY~
OFFICE, RENE GUERRA, AND THE §
McALLEN, TEXAS DEPARTMENT OF
PUBLIC SAFETY DNA CRIME FIELD ':'
LABORATORY SEROLOGIST, ORLANDO
OCHOA, !39TH DISTRICT COURT §
JUDGE BOBBY
~ ··.rr. . .
FLORES
~ r"\ " - .. ': ~-- ..
..,l~E·s J? b'NnE'N Ts § . •
APPLICATION FOR MANDAMUS
TO THE HONORABLE COURT OF CRIMNAL APPEALS OF TEXAS:
NOW COMES, Gustavo Lope~ Mireles, applicant, and asks this
court to issue a Writ of Mandamus to Hidalgo County Texas
District Attorney.!.<:;:; .~OJ f't&:t?... ··:, and McAllen, Texas Department of
Public Safety DNA Cri~e Field Laboratory serologist, Orlando
Ochoa, respondents, to require respondent describe relief
requested and in support of this application would show this
court the following; concerning Motion for Court of Inquiry and
motion for Diclosure.
I .
FACTUAL BACKGROUND
Applicant filed a ~otion to conduct a Court of Inquiry
on June 10, 2014. The motion was denied due to lack of substancial
facts to establish probable cause for conducting a ~ourt of
Inquiry on August 14, 2014. (See attach-ed Exhibit-A).A.ppl:Lca.nt's
motion consists of overwhelming substancial facts that in the
"Intrest of Justice" establish "'Probable Cause", to Conduct the
Court of Inquiry requested, .in Trial Cause No. CR-3196-01-F.
(a) The Legislature of Texas in April 1, 2001, enacted laws to
govern all Texas Department of Public Saf~lty DNA Crlime FieB'J
Laboratories analytical standards for quality assurance and!
proficency testing for forensic DNA analysis on c~imlbal cas~s.
l
(b) The Texas Department of Public Safety DNA database must and
had to be compatible with the national identification index
system (COOlS) used by the FBI to the extent required by the FBI
to permit the useful exchange and storage of DNA records or
information derived from those records.
(c) The Texas Department of Public·safety Crime Field Laborato-
ries were required by Texas Lagislative Law, to establish stand~
ards for DNA analysis by any of it's DNA laboratories that meet
or exceeded the quality assurance standards issued by the FBI.
(d) If this quality assurance standards were not met, the
director of the laboratory in violation of these standards as
established by Le~iiative Law, was obligated to prohibit the
laboratory from exchanging DNA records or analysis with another
DNA laboratory or criminal juestice or law enforcement agency.
(e) The record shows this honorable court, that the quality
assurance standards when testing DNA forensic analysis, issued
by the FBI were not met or exceeded, in this instant case. The
standards utilized by the McAllen Department~of Public Safety
DNA Crime Field laboratory and it's serologi~\Olando ochoa, did
not even come close to the standards issued by the FBI.
(f) The offnese charged to the Appellant of First Degree Murder,
had not even taken place yet. The appellant was charged with the
offense by indictment to have been commited on or about'"'- ··~:r::; ``: ·
June 23, 2001, 8 moths after the Texas Legislature enacted these
DNA analytical mthodology standards, and they're requirments.
(g) Appellant was entiltled by due process constitutional right
the right to have these Texas Laws applied to the DNA analysis
of this instant case. (Trial Cause No. CR-3196-01-F).
(h) Every agency that is established in the State of Texas, must
abide by Texas Laws. If any agency violates this Laws and causes
harm to another in the process, that agency commits a crime
against the State of Texas; pursuant to the Texas Penal code.
(2) Denial to conduct the Court of Inquiry was recived from the
!39th district court on August 22, 2014, through TDCJ McConnell
Unitm, 3001 s. Emily Dr., Beeville, Texas, Mail room service.
Appellant's motion to conduct the Court of Inquiry was not
addressed to be filed in the !39th district court, but instead
to the 206th district court, where judge Rose Guerra Reyna is
the presiding judge. (see attached exhibit-A). Appellate Clerk
Alexandra Gomes, took it upon herself, in violation of the TCCP.
Art. 2.21, and filed the motion in the 332nd district court,
where accussed defendant Mario Ramirez Jr. presides. dfter the
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App;ll''-'.::ant inquired of the motion's desposition, through the
ap``Jiant's sister, Leonor Matano, 580 Irene Dr. Canyon-Lake, Tx.
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I I.
REQUEST FOR RELIEF
Applicant asks this Honorable court to issue a Cdurt Order
pursuant to this PMinistrial Act", for the Court of Inquiry to
be co~ducted. Cr~es have been committed against the State of
Texas and against the applicant, by the Responden:..tl 's failure
to uphold i:.he laws enacted by the States Legislature.
I II.
J!JRI SPI CTION
This court has jurisdiction to consider this application
pursuant to Art. 5,5 of the Texas Constitution and Art. 4.04 of
the Code of Criminal Procedure; to include Art. 1~04,1.05.
IV.
AUTHORITIES AND ARGUMENT
On December 12, 2001 State's Forensic expert, serolog~st
Orlando Ochoa of the McAllen, Texas D.P.S. Crime Field Laboratory
conducted a DNA analysis concerning the Capitol Murder of victim
r1ary Jane Rebollar; and COL\ paring the DNA left behind at the . it
cx:lime scene to the Applicant's DNA sample. Analyst Orlando Ochoa
on August 6, 2001, testified at trial 332nd district court; that
for a basis for his DNA analysis of the case he had used the
Co~bined DNA Index System (coors), na~ional DNA database computer
system. (See attached exhibit-B1RR. Vol 9. pgs 20-21).
The DNA Database System that state expert analyst Orlando
Ochoa was refering to was the DNA Database System in SUBCHAPTER
G. of the Executive Brabch DepartBent of Public Safety Title 4
Ch. 411. By analyst Orlando Ochoa, utilizing the coors DNA
Database System to conduct the DNA analysis of this case, he
was obligated and required pursuant to section § 411.142 (a)
through (h) to conduct the DNA analysis to either meet or exceed
the current standards for quality assurance
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and proficiency testing for fore~sic DNA analysis issued by the
Federal Bureau of Investigation, (FBI), (See attached exhibit B-2)
Orlando Ochoa, was further required to ensure that the DNA
database was compatible with the national DNA iden.t)ification
index system (CODIS) or Combined DNA Index System; used by the
FBI to the extent required by the FBI to permit the useful
exchange and storage of DNA records or information derived from
those re~ords, concerning the investigation of a crime, regard·-
1 e s s o f or g i n , ( See at t a c he d ex h i b i t -B-l .a t. (b ) ( f ) ( g ) (h ),
This subchapter G. of the DNA Database system was Added by Acts
of 1995, 74th Legislature Ch. 595, § 1. eff. Sept 1, 1995.
Amended by Acts 2001, 77th Leg. Ch. 2, § 4, eff. April 5, 2001.
Orlando Ochoa conducted the DNA an~lysis in this instant case in
December 12, 2001, eight months after the Legislature enacted
this laws. The DNA analysis in this instant case were subject
to these requirments, set by the FBI CODIS,
In order to meet or exceed the FBI's quality assurance and
proficiency DNA testing for forensic DNA analysis, the DNA
protocols and standard operating procedures require a finding and
search at a minimum of 13 defrent loci, from the crime scene DNA
samples to a suspect's DNA sample. This 13 Core coors loci search
and match must be met, in order for Orlando Ochoa to conclude and
testify at trial that he had made a, ,. Consistant Match", a
''Source attribution Match", a Positive Match", a "Randum Match
Probability: However, Orlando Ochoa testified under oath at
trial that he only searched for 9 loci, and compared only 9 loci
from the c~ime scene DNA to the appellant's DNA sample, Further,
he testified that he had only been able to match 2 to 3 loci
from both samples, when conducting the analysis.(See attached
exhibit-``pgs 23-24)•
4
.Orlando Ocho~, further testified that concerning skin
samples, blood, that had been embedded underneath the victim's
Mary Jane Rebollar 1 s fingernails, that because he had managed to
match 2 loci,i he told the jury, that this DNA belonged to
~he victim, instead of some other person. (See attached exhibit-&f
pgs 25-26), The Appellant was excluded as being the contributor
to that DNA, Orlando Ochoa knew about the 13 COOlS core loci
requirment, because he testified that it was not uncommon for
DNA analyst to look at the 13 regions to make it more specific
to an individual. (See attched exhibit-&1-at pg 32). It didn't
matter to Orlando Ochoa, if he was complying with the DNA data-
base requirments or not 1 if he matched only 2 loci, to him it
was a match, and that was that. (See attached exhibit-&1at pg
34~35). It is clear and convincing that Orlando Ochoa knew
about the requirments set forth qy the FBI which require a match
of 13 diffrent loci from the crime scene DNA to the appellant's
DNA sample, in order to testify that he made a match. It is
clear and convincing that Ochoa, choose not to follow standard
operating procedures. He utilized the DNA Database System, but
instead of following protocol, set his own DNA analytical
guidelines in violation of legislative laws.
(4) Due to the reasons stated above, the appellant further
contested in his motion that Orlando Ochoa had committed crimes
against the state of Texas. (1) Aggravated Perjury Texas Penal
Code § 37.03, (2) False Report to a Peace Officer or Law Enforce-
ment agency, Texas Penal Code §37.08) (3) Tampering Wither
Fabricating Physical Evidence, Texas Penal Code§ 37.09. (a),
(1) (2).
5
--.
(4) Tampering With a Goverment Record, Texas Penal code §
37.10, (a) (l) (2) (3) (4) (5) (6), Orlando Ochoa, committed
such crimes against the state of Texas when he .knowingly made the
false entry and alteration of a goverment record, when he
submitted as reliable evidence his DNA analysis of this instant
case, ~nowing that it was fruadulent, and misleading. He further
knew that his DNA analysis did not meet or exceed the FBI's coors
national Inde~ system's quality assurance and proficiency DNA
testing forensic standards, but he still choose to testify at
trial that his analysis were true and correct. Ochoa's trial
testimo~y and DNA test results are the only evidence that the
state relied upon to obtain this instant conviction.
The McAllen Texas DPS Crime Field Laboratory, and it's directors
Thomas A, Davis jr., Frankie Waller, .and David Mceathron, · klnew or
should have known befor_kl authorizing .!.he ::Jkllease of this
fruadulant, incriminating, DNA test r~bults, conducted by Orlando
ochoa, were fruadulent, misleading, and not in compliance with
CODIS FBI's standard Operating procedures. By allowing the
exchange of these records, they all became acomplices, of said
crimes against the state of Texas pu~suant to Texas Penal Code
§ 43 .06. (a) (b) (c) (d).
District Attorney Rene Guerra and trial Judge ~ario Ramire~
Jr, committed the offense of Abuse of Official Capacity, pursuant
to the Texas P e n a l code . § 3 9 . 0 2 . and § 3 9 , 0 3 , ( a ) ( l ) ·t 2 ) , Bo t: h
District Attorney Rene ijuerra and Mario Ramirez Jr, trial judg~
should have ~nown as a matter of la~ when hearing Orlando Ochoa's
6
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fruadulan~ and delibrate misleading DNA test result's testimon~
that his DN~ test result's wer~l inadmissable pursuant to the
Texas Legislature's enactted laws. Both of them, failed to act,
and instead allowed the appellant Gustavo L, Mireles to be
convicted soley on this DNA test results provided by Orlando
Ochoa, the State's "Hired Gun'~ Appelant was convicted to Life
in prison, based on fruadulent, faulty, unreliable, unacceptable
by the forensic science community then when the tests were
conducted in Dec 12, 2001 or now, "Junk Science". (See attached
exhibi t~:G,;.-~ Newly acquired evidence),.
(4) LACK OF JURISDICTION TO ENTER RULING;
Judge Bobby Flores of the 139th District court of Hidalgo
County, Texas , when he first recived this motion, through
"Tootsie", secretary of judge Mario Ramires J~, at the 332nd
criminal district court, on or about August 3,2014, review and
entertained said motion, and decided to submitt said motion Lo
administrative judicial district judge Rolando Olvera. Pursuant
to the Texas Code of Criminal Procedure Art 52.01 (a), judge
Flores in order to submitt the motion LO judge Olvera, had to
first belive that the motion consisted of "probabl.e= Cause" that
a crime against the state of Texas had been committed.
The decision of judge Bobby Flores to request and submitt
the motion Lo Rolando Olvera, implicate~ substancial facts had
been establ~ hed for requesting judge Olvera to asign a judge to
commence the Court of Inquiry. Administrative judicial judge
Rolando Olvera, returned the motion back to judge Bobby Flores,
on or about August 11, 2014~ Pursuani to the TCC~ Art. 52.01.
the fact that this instant motion was entertained by the
administrative judicial district judg~ iMplicated that by him
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rec i vi ng the mot ion and submitting i.il back to judge ''Bobby"
Flores, was for the judge Bobby Flores ~o comence the Court
of Inquiry, and not ~o order that the COurt of Inquiry not be
conducted; as he did in his court order ruling issued in Aqgust
14, 2014. Furthermore, judge Flores lacked jurisdiction to enter
a ruling pursuant to Texas Code Cri~inal procedure Article
52.01 (b) (2), because he was the requesting judge.
It was District Attorney Rene Guerra himself that opened the
"Gateway" to this Court of Inquiry. In March 15, 2004, Rene
Guerra was notified that an audit conducted by the Department of
Public Safety cited the McAllen, Texas Crim~kField Laboratory
with numerous DNA analytical policies and procedural problems.
The audit caused the Laboratory's closure. The laboratory had
been using outdated Standard Operating Procedures, then the
ones currently adopted by the Texas Legislature. The laboratory's
director c la icr,ed that they were given permission, because they·
were "Grand..fla. the red". ReneGuerra said that the De par tmen t of ·. ''·
Public Safety had to itemize the cases that had been effected
by the laboratory's closure. Especially the cases where DNA had
playetl a .major role in the state obtaining a conviction. More
then 300 cases had to be re-evaluated. (See attached exhibit
B-4). Because the DNA evidence was the only evidence that the
state had relied upon lb obtain l~e conviction in cause No.
CR-3196-01-F; Applicant had and has a constitutional right to
be notified if his case was within the 300 cases that were
re-evaluated. Furthermore, .what analytical DNA forensic analysis
procedures were utilized in ihe re-evaluation process. Applicanil
has motioned the district attorney's office for disclosure of
said issue and that motion has also been denied. (See attached
exhibit A.-5) .
8
Bo·th motion to conduct a "Court of Inquiry" and 'motion for
Disclosure", have been appealed to the 13TH court of Appeals.
(see attached exhibit B-5). In the motion to aonduct a court of
Inquiry, the Court of Appeals has entered an Opinion and judge-
ment saying that,"AAparty may appeal only that which the Texas
Legislature has authorize~!". Further saying that, "TCCP. Art.
Ch. 52 does not provide for an appeal to a district judges
determination in a motion to conduct a Court of Inquiry. Both
deci~ions from the Court of Appeals are erronious because:
A. the court has decided an important question of State and '
federal law th~t has not been, but should be settled by the
Court of Criminal Appeals.
B. The court has decide:rl 1 an important question of State and i
Federal Law in a way that conflicts with the applicable
d.eqisi-'61)9 of the Texas Legislature's laws that govern the land.
C. the court has declared a statute, rule, and ordiance to in
the "Intrest of Justice" revie.U, be unconstitutional, and
appears to have overlooked the statutes under the "color of
law".
D. The justices of the Court of .Appeals have disagreed in a
material question of law necessary to the court's d~cision .
.:~U '
F. The court of appeals has ~part~ from the accepted and usual
coarse of judic``l proceedings and has sanctione~ such a
departure by a lower.court, which calls an exert~se of the
Court of Criminal Appeals' power of supervision.
Applicant asserts that the Texas Leg isla ture, (like argued )
''
priorly, authorized in April 5, 2001, that all Texas DPS Crime
Field laboratories utilize quality assurance DNA testing standard
that either ,,nneet or exceed the FBI's Combined DNA Index .Sjstem
issued by the FBI. The court of Appeals has dismissed the motion
to conduct a Court· of Inquiry sayi~ that the applicant could
only appeal "that which Texas Legislature has authorized''. Well,
the motion, contested that the state di~ not apply to this
instant case, CR-3196-01-F State of Texas vs. Gustavo L .. Mireles
the DNA analitical standards authorized! by the Texas Legislatuie 1
9
therefor, making tlhe issue appealable. Furthermore, nowhere in
the Texas code of Criminal Procedur~ Chapter 52, d6es it state
that a district judge's determination on a motion to conduct a
Court of Inquiry, is not appea!~/:j/i!!J- (See TCCP. 2012 Ed.).
~he Court of Appeals ruled that all other motions pending
were dismissed as moot. This without even looking at the motion
for Discloi~re, which consisted bf a diffrent issue which was
also of constitutional magnatude.
Not only does the Court of Appeals decision viol a tes and ill
contridictor~ to the State of Texas en~cted legislative laws, but
it also violates the United States constitutional Amendments 5th 1 6th
and 14fh due process clause. This violations rise to a funda~
mental defect which inherently r``ults in a complet~ miscarriage
of justice and is inconsistent with the r6!dimentary illemands of
fair procedure.(See, Cockerham v. Cain, 283 F.3d 657/663 (5th
Cir. 2002).
The dismissal iQ both the district court and the court
of appeals opinions and judgements, are actions done under
col or of law, which are done with the appa r~lnt authority of the
law, but actually in contrevention of the law. A Federal Cause of
action may be maintaned against a state officer who under color
of law deprives a person of his civil rights. 42 u.s.c. §1983.
The matters and issues presented to both courts are so
"Plain" that the errors are "cl~lar" and "obvious" and a·ffect the
applicant's substantial rights; this errors seriously affect
fairness, integrity and public reputation of the judicial
proceedings. (See u.s. v.Kirk, 528 F.3d 1102, 1110 (8th Cir. 0
'·
2008), (See also, FED. R. CRIM. P. 52 (b).)
10
In both cases Court of Inquiry motion, and motion for
Disclosure, the records clearly show that the Respondents/or
Defendants never filed any type of response or refuted the
assertions and alligations contained therein. Pro-se alligations
are accepted as true, unless they are clearly frivolous.(see,
United States v. Baynes, 622 F.2d 66 (3rd Cir. 1980). Further-
more, when the State fails to despute the facts contained in a
Petitioner's pro-se alligations, it essentially admits those
alligations. tsee, Bland v. Dept. of Corrections, 20 F.3d 1469
(9th Cir. 1994), See also, In··re Sixto,48 Cal. 3d 1247, 259 Cal.
Rptr 491,492, 774 P.2d 164, 165 (1989), See also, Earp v.
Stokes, 423 F.3d 1024 (9th Cir. 2005). The Applicant/Petitioner
has shown to this Honorable Court a 'Colorable Claim• where he
has alleged specific facts that are true, which entitle him to
relief, unless the alligations are clearly frivolous. See,
Morre v. United states, 571 F~ 2d 179, 184 (3d Cir. 1978).
The Applicant/Petitioner has presented to this Honorable
Court compelling evidence that substanciates that Crimes against
the State of Texas have been clearly comitted. The Supreme
Court has held in ''Brady" that the supression by the prosecution
of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution". 373 U.S. at 87. there after the Court held that
such disclosur~ is mandatory regardless of whether a defendant
requests it, United States v. Ag~rs, 427 u.s. 97, 107 (1976),
and that impeachmnet eviden~e must also be disclosed, see Brady
473 u.s. at 676; Giglio, 405 u.s. at 154.
ll
Applicant has obtained "newly Discovered Evidence" in the
form of two highly qualified forensic analysts who are expert in
the forensic field, Hary j. Bonell M.D. and John Plunkett M.D.
have both provided affidavit and a letter substanciating that the
DNA analysis conducted by state analyst Orlando Ochoa in December
12, 2001 were def~btive and misleadlbg and below the acceptable
forensic .community standards, then and now. (See Exhibit-B-6).
v.
CONCLUSION
(l) Applicant has no legal remedy available to him other then
this application f.l:lr writ of manda,mus.
(2) This action sought, under the facts of this case, in essence,
a ministrial act which respondent had legal duty to preform.
(3) Appllkant has properly requested repondent to preform, which
repondent has refused.
WHEREFOR, PREMISSIS CONSIDERED, Applicant prays that this
application be granted and that the reMponden~ be ordered ib
continue with the relief requested.
Respectfuly Submitted,
Is I lJw/NIJ J_ &Rh
Aplicant Pro-se
Gustavo L. Mireles
TDCJ-ID #1128895
3001 s. Emily 1 IDr.
McConnell Unlt
Beeville, Texas 78102
INMATE DECLARATION
I, Gustavo L. Mireles, presently incarcerated at the Texas
Department of Cri,, inal Justice Division, McConnell Unit, located
at 3001 S. Emily. Dr , Beeville, Texas 78102, have carefuly read
the foregoing insturmelad'land :find- same to be tr.ule and correct, in
all things therein, to the best of ..myl ,knowledge.
S i g ned t his .-l"f. ii a y o f . ~-~ ;-c l;i; ':: ::- ., 2 0 l 4
Respectfuly Submitted,
/s 1- /atLJko? r/- Ltfvidt
Applicant Pro-se
Gustavo L. Mireles
EHIBIT A CONSISTS OF:
1. Motion to conduct a court of Inquiry fliled by the
Hidalgo county Clerk's office; June 10, 2014
2. Court Order issued by 139th District court, presiding
judge Bobby ~ores.
3. Amanda and M3cario Mireles's Texas General Affidavits,
concerning the procedures taken in the instant motion as
having personally been told to them by Alexandra Gomez,
"Tootsie", and "Shila, secratary of the 139th district court
4 Leonor Matano's Texas General Affidavit, concerning the
procedures taken in the instant motion, as told to her on
and through telephone records, by Alexandra Gomez, 'Tootsie"
and 'Shila, the secratary for the 139th district court.
5. Motion for Disclosure filed May 30, 2014.
AFFIDAVIT OF AMANDA MIRELES
STATE OF TEXAS §
§
COUNTY OF HIDALGO §
Before me, the undersigned authority, on this day personally appeared affiant
Amanda Mireles, who proved to me to be the person whose name is subscribed to this
Affidavit and who acknowledged to me that she executed the same, and after she was
duly sworn, upon her oath, she deposed and said:
My name is Amanda Mireles. I am 76 years of age, of sound mind and capable of
making this affidavit. The facts stated in this affidavit are within my personal knowledge
and are true and correct.
On June 10, 2014, I went to the Hidalgo County District Clerk's office and I spoke
to Sandra Gomez. I took her some documents that were to be delivered to Judge Rose
Guerra Reyna. Sandra took those documents to her supervisor, Laura Hinojosa, and then
the documents were sent to Judge Mario Ramirez. I specifically told Sandra that the
papers were not for Judge Ramirez but rather for Judge Guerra Reyna because my son,
Gustavo Mireles wanted for me to deliver them to Judge Guerra Reyna. Sandra took the
papers to Judge Ramirez' office. A few days passed and they sent the papers to Judge
Bobby Flores. Judge Flores' secretary reviewed the papers and then were sent to
Cameron County and Judge Rolando Olvera. A few days later, the secretary told me that
Judge Olvera returned the papers to Judge Bobby Flores, who was to make a decision on
the documents.
SWORN TO and SUBSCRIBED before me by Amanda Mireles on this 29th day
of August 2014.
NOTARY PUBLIC Notary Public in and for the State of Texas
Rick Puente My Commission Expires on
State of Texas
November 12, 2014.
i
1
Rick Puente-Notary Public: PO Box 1514, San Juan, TX 78589 (956) 782-8425
I
August 13, 2014
Innocence Project of Texas
1511 Texas Avenue
· Lubbock, Texas 79401
RE: Gustavo L. Mireles Request for Criminal Inquiry filed Hidalgo CO. Courthouse on 7/10/14
Dear Nick or Attorney Jeff Blackburn,
Enclosed is a copy of the Inquiry filed by Gustavo. As you can see it was addressed to Judge Rosa Guerra-Reyna.
When I called the courthouse for status, they informed they did not know what to do with it. The last inquiry they
received was 30 years old.
The Trial Judge Ramirez had it, and then transferred to Judge Guerra-Reyna. She did not know what to do so she
forward it to her superior
Judge Roberto "Bobby" Flores. Judge Flores sent it to District 5 Judge, Rolando Olvera whom sent it back to Judge
Flores to process and address.
The inquiry has several elements, one the elements (DNA report and results) submitted to Jury was a "material
misrepresentation", and such representation would induce a Juror or a reasonable person to alter the outcome of
the verdict. Second this was "false representation" of the DNA. Third, misrepresentations were made knowing
and recklessly with the intent. Fourth the trial Judge keeper of Justice and the DA knew the representation was
false, made recklessly, as positive assertions, and without knowledge of the truth to Jury and were made with the
intent to mislead the Jury and the outcome of the verdict, a criminal offence was committed. This is not common
in this county.
Keep in mind, 5 sheriffs from the Rio Grande Valley including the Hidalgo Co. sheriff were convicted of criminal
charges and some are serving prison sentences. As recent as a few months ago the Hidalgo Sherriff, his son
(Leader of the Panama unit) and several of his top officials were indicated and are serving prison terms including a
DA whom was helping them and there were many more.
We relied on the truth and they kept it from the Jury.
If the Inquiry results in a hearing, will you help us by representing Gustavo?
Please let mei)no
so we can prepare.
Thank you,
Leonor Mata
Cc: Gustavo L. Mireles
Enclosures
SYLVIA REYES
CouRT CooRDINATOR
)39TH JUDICIAL DISTRICT OF TEXAS
I 00 N. Closner, 2nd Floor Tel: (956) 318-2260
Edinburg, TX 78539 Fax: (956) 383-7608 . ---- --- ... - ' _____ __ ,.. "'--~- .. -- -- ------ . -
sylvia 139th@yahoo.com
. 3\
...-~-···· ·- ...0. - '")
U ... ··-·····~ 2LD.
- ·-Q .......... ..............
... ------.--··--··· ___ ....,. _______ , .. ····•···· ..
····----2~ . . . £_\Q.O( . . . . . . . . . .
J.R. "Bobby" Flores
Judge, I 39th State District Court
.~pmyDiStrje~.
Hidalgo County Courthouse
I 00 North Closncr, Second Floor Edinburg, Texas
Tel: (956) 318-2260 c. R- ;;: !;; () - {? I . ~ ~2. hi·
PO Box 87 Tel. (956) 3 1
Edinburg, Texas 78540 Fax (956) 3:
Email: districtclerk@co.hidalgo.tx.us
Case No. CR-3196-0 1-F
STATE OF TEXAS § IN THE 139TH DISTRICT COURT
§
§
§
vs. § OF
§
§
§
GUSTAVO LOPEZ MIRELES § HIDALGO COUNTY, TEXAS
ORDER. ~ ..
• ,..
On this the 14th day of August, 2014, the Court having examined the pleadings,
record, and the submitted transcripts, FINDS that there is lack of substantial facts to
establish probable cause for conducting a Court of Inquiry.
IT IS THEREFORE ORDERED that a Court oflnquiry not be conducted
SIGNED AND ENTERED on this the 14th day of August, 2014
~ruDGE
CHIEF JUSTICE NUECES COUNTY COURTHOUSE
ROGELIO VALDEZ 901 LEOPARD, 10TH FLOOR
CORPUS CHRISTl, TEXAS 78401
JUSTICES 361-888-0416 (TEL)
NELDA V. RODRIGUEZ 361-888-0794 (FAX)
DORI CONTRERAS GARZA
GINA M. BENAVIDES HIDALGO COUNTY
ADMINISTRATION BLDG.
~ourt of ~peals
GREGORY T. PERKES
NORA L. LONGORIA 100 E. CANO, 5TH FLOOR
EDINBURG, TEXAS 78539
CLERK 956-318-2405 (TEL)
DORIAN E. RAMIREZ '(Ebfrttentb Jefstrftt of tn:exas 956-318-2403 (FAX)
October 09, 2014
Hon. Oscar Rene Flores Hon. Rene A. Guerra
Attorney at Law Criminal District Attorney
1308 South 1Oth Ave. Hidalgo County Courthouse
Edinburg, TX 78539 100 N. Closner, Room 303
*DELIVERED VIA E-MAIL* Edinburg, TX 78539
*DELIVERED VIA E-MAIL*
Re: Cause No. 13-14-00497-CR
Tr.Ct.No. CR-3196-01-F
Style.: Gustavo Lopez Mireles v. The State of Texas
Encl_osed please find the opinion and judgment issued by the Court on this date.
Very truly yours,
~C(,M- 5. ``
Dorian E. Ramirez, Clerk
DER:dsr
En c.
cc: 139th District Court/Hidalgo County (DELIVERED VIA E-MAIL)
Hon. Laura Hinojosa, District Clerk (DELIVERED VIA E-MAIL)
Hon. J. Rolando Olvera Jr., Presiding Judge, 5th Administrative Judicial Region
(DELIVERED VIA E-MAIL)
Case No. 13-14-00497-CR
Page 2
Very truly yours,
?Su\~ 5. ``
Dorian E. Ramirez, Clerk
DER:sc
cc: Hon. Rene A. Guerra (DELIVERED VIA E-MAIL)
Hon. Laura Hinojosa, District Clerk (DELIVERED VIA E-MAIL)
Mr. Jessie Salazar, Court Reporter
NUMBER 13-14-00497-CR
COURT OF APPEALS
' '
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTl • EDINBURG
GUSTAVO LOPEZ MIRELES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On Appeal from the 139th District Court
· of Hidalgo County, Texas.
MEMORANDUM OPINION
· Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion Per Curiam
Appellant, Gustavo Lopez Mireles, attempts to appeal an order issued on August
14, 2014, denying his request for a court of inquiry. We dismiss the appeal for lack of
jurisdiction.
.
-,
~
~ .
-
jo:
-A court of inquiry is a criminal proceeding authorized by and conducted according
to Chapter 52 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
arts. 52.01-.09. When a district judge, acting in his capacity as magistrate, has probable
cause to believe that an offense has b~en committed against the laws of this state, he or
she may request that the· presiding judge of the administrative judicial district appoint a
district judge to commence a court of inquiry. TEX. CODE CRIM. PROC. art. 52.01 (a). The
appointed judge may summon and examine any witness in relation to the offense in
accordance with the procedural rules established in Chapter 52. /d. If it appears from a·
court of inquiry that an offense has been committed, the judge shall issue a warrant for
the arrest of the offender as if the complaint had been made and filed. TEX. CODE CRIM.
PROC. art. 52.08.
A party may appeal only that which the Legislature has authorized. 0/owosuko v.
State, 826 S.W.2d 940, 941 (Tex. Crim. App. 199_2); McCarver v. State, 257 S.W.3d 512
(Tex. App._:_ Texarkana 2008, no pet.). Chapter 52 does not provide for an appeal from
the judge's determination. In re Court of Inquiry, 148 S.W.3d 554, 555 (Tex. App.-EI
Paso 2004, no pet.). Accordingly, this appeal is DISMISSED for lack of jurisdiction. All
pending motions are DISMISSED as moot.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of October, 2014.
2
.
GUSTAVO L. MIRELES
TDCJ-ID # 1128895
3001 S,. EMILY. DR.
McCONNELL UNIT
BEEVILLE, TEXAS 78102
June 16, 2014 FILED
AT_ _ _O'CLOC~<_M
Honorable District Clerk
of Hidalgo county Texas JUN 1 0 2014
Attn; Laura Hinojosa
1ST FLOOR COURTHOUSE S ERK
100 N. CLOSNER BLVD. -go county
P.O. DRAWER 87
EDINBURG, TEXAS 78540-0087 By--+-~-.,.'--t'-Depu~#44
Dear Clerk:
If you could would you please be so kind an ~le this
'Motion To conduct A Court of Inquiry" at the 206TH Criminal
District Court, judge Rose Guerra Reyna Presiding.
This motion is sent to you for filing under the Texas
Code of Criminal Procedure Article 2.21. (a) (1) (2) (3), please
comply and if so kindly notify me when this legal documentation
is filed. The Motion is filed pursuant to the Texas Code of
Criminal Procedure Article 52.01-
Thank you for your time and attention to this very important
and urgent matter.
Sincerly,
/sL/4~n J.(/l~
GUSTAVO L. MIRELES
ENCLOSURES:
CC: Amanda Mireles, 1231 S. 3rd. St. , Alamo, Texas 78516 (956)
702-1044; Leonor Matano 580 Irene dr- canyon-lake, Texas
78102 (512) 787-1180; Florestella Limon, 103 Cottonwood, Donna,
Texas 78537.
COURT OF INQUIRY
Cause No=----------------~-
AT
FI£ED
0
Pro-Se § IN THE 206TH CRIMINAL - 'CLOCK__
COMPLAINT ANT JUN 10 2014
GUSTAVO L. MIRELES DISTRICT COURT, JUDGE - - - - -
§ H/NQ
v ROSE GUERRA
HIDALGO COUNTY DISTRICT
ATTORNEY"S OFFICE § HIDALGO COU
RENE GUERRA AND
McALLEN, TEXAS DEPARTMENT OF §
PUBLIC SAFETY DNA CRIME FIELD
LABORATORY AND SEROLOGIST
ORLANDO OCHO.~, §
P. 0. BOX 819
McAllen, Texas 78505-0819 §
MOTION SEEKING JUDGE TO CONDUCT A COURT OF INQUIRY
PURSUANT TO THE TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 52 01.
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Gustavo Mireles, the Complaintant in the above
numbered and styled cause, and respectfully asks this Honorable
Court to Conduct this Court of Inquiry for the following reasons;
I JURISDICTION
This Honorable judge has jurisdiction to conduct such an
inquiry, pursuant to the Texas Code of Criminal Procedure
Article 52.01. (a) because; when a judge of any district court
of this State acting in his capacity as a magistrate, has
probable cause to belive that an offense has been committed
against the laws of this stater he may request that the presiding
judge of the administrative judicial district appoint a district
judge to commence a Court of Inquiry;
II. PROBABLE CAUSE TO INITIATE A COURT OF INQUIRY
WHEN AN OFFENSE HAS BEEN COMMITTED AGAINST THE LAWS OF THIS STATE,
Relevant Facts
In December 12, 2001, Serologist Orlando ochoa who was a
forensic analyst for the Texas department of Public Safety DNA
Crime Field laboratory conducted a DNA analysis concerning
1
the Capitol Murder of victim Mary Jane Rebollar, He compared
ON~ biological matter that was alleged to be left behind at the
crime scene, to ComplaintantGustavo L Mireles's DNA biological
matter genetic fingerprint. The DNA testing policies and proc-
edures utilized by analyst Orlando Ochoa were Short Tandem
Repeat (STR), and Polymearse Chain Reaction, (PCR) DNA loci
search and compare analyzation. When conducting the analysis,
analyst Ochoa searched and compared only 9 DNA loci, (locations).
He matched 2 to 3 loci to the Complaintant's DNA samplev He then
concluded that because of this 2 to 3 loci match, he had obtained
a positive consistant match~ However, serologist Ochoa's protocol
and methodology that he used to conduct the DNA analysis and
comparission, was not an acceptable forensic science standarJ.
The required and acceptable forensic standard was to search Zor
13 loc~ (lbcations) of DNA from both the crime scene DNA and the
suspect's (Gustavo Mireles) Complaintant's DNA sample. This DNA
analytical methodology had been established by the Federal Buerua
of Investigations Department nation wide begining in October of
1998; 3 years prior to the bNA analysis being conducted in this
case by serologist Orlando Ochoa. (See attached Exhibit -A).
Serologist Ochoa knew about the 13 loci match requirment, because
he testified at trial that some times during DNA testing analysts
searched for more then 9 loci, that they searched for 13 to make
it more specific to an individual. (See exhibit-S RR. Vol. 9. pg
32 lines 14 to 17). In ihe instant case .he only searched for 9
loci RR. Vol. 9 pg 24 lines 1 to 20, and was only able to match
2 to 3 loci .(see exhibit-B). This 13 loci match is thP protocol
that was established by the FBI for all accreditied DNA laborat-
ories to follow. (See exhibit-A pg. 5 tiltled "Back to High
2
School Biology" and pg. 98 titled "Other genetic locations'').
Therefor, since 1998 the FBI established that if the DNA analyst
did not manage to match all 13 loci, from the crime scene to the
suspect's DNA sample 13 loci, the analyst had to concluded that
the crime scene left behind DNA being compared came from some
other person instead of the suspect. (Se~other genetic locations
on pg.t``J. Orlando Ochoa testified under oath to a jury and that
he had made a positive ~atch from 5 items of DNA biological
matter, that were alleged to be left behind at the crime scene.
(See exhibit -B RR. Vol. 9 pg 19 lines 4 to 17 and pg. 23 iines
1 to 23). By testifing that Gustavo Mireles was thePsource~of the
crime scene DNA and that the DNA was"consistant" the analyst and
the DNA laboratory are stating that this DNA profiles originated
from this particular individual,(Gustavo Mireles). He testified
under oath to the jury saying that this facts were true and
corrct, even when he knew or should have known as an expert
wtiness, that in order to concluded that he had made a positive
consistant, source atribution match, he had to search for and
match 13 loci instead of only searching for 9, and only matching
2 to 3 loci. Orlando Ochoa delibertly committed "Aggravated
Perjury" in doing so, which is an offense against the state of
Texas~ pursuant to the Texas Penal Code § 37.03 which states
that: (a) person commits an offense if he commits perjury as
defined in Section 37.02 , and the false statement is made:
(1) is made during or in connection with an official proceeding;
(2) is material. Orlando Ocha, made a false statement under oath
and sweared that it was the truth. It is reasonably convincing
that because Ochoa, -``ew about the 13 loci search and match,
3
prior to testifing as state expert witness, but decided to tell
the jury that even though he had matched only 2 to 3 loci he had
made a positive match, from the crime scene DNA to that of Gustavo
Mireles's DNA sample, he escalated the perjury offense to
aggravated perjury; because he knew that the false DNA analysis
information contained 'in his expert testiminy was made during and
in connection to an official proceeding. Ochoa's DNA testimony
was the sole and primary evidence that linked that Complaintant
to the crime scene. It was also the only evidence utilized to
obtain this instant conviction. (See exhibit-C).
Furthermore, Ochoa committed the offense "False Report to
Peace Office or Law Enforcement Enployee", pursuant to the
Texas Penal•,Code §37.08. when he submitted the DNA test r~sults
as trustworthy to Investigator Joel Castro, so that he could
then submitt them as evidence to the District Attorney Rene
Guerra, to use as addmisable evidence at trial.
Orlando ochoa,further committed the offense of Tampering
.
With or Fabricatin9 Physical Evidence pursuant to the Texas
Penal Code § 37.09. (a) (1) (2)
1
by altering his analysis
to read that he had made a conclusive matcht and presnting and
useing Lhe test results as true1 Mnowing of the DNA tests results
falsity and with the intent to affect the course and outcome of
the investigation and official proceedings, which resulted in a
conviction and sentencing of Gustavo MirEles to life in prison.
Orlando Ochoa/ further commited the offense of Tampering.
With a Goverment Record pursuant to the Texas Penal code§ 37.10.
(a) (1) (2) (3) (4) (5) (6) 1 when he knowing made the false
entry and alteration of a goverment record; he presented the
record State's #105 and #106 with knowledge of it's falsity
and with intent that it be taken as a genuine govermental record;
4
impaired the verity of the goverment record; got paid by the
state for the use of the record; presented the record with know-
ledge of it's falsity. The McAllen, Texas DPS Crime Field Lab, to
include it's director Thomas A. Davis Jr., Frankie Waller and
David MCeathron assistant Directors, ~new or should have known
before authorizing ±he re~ease of this fraudulant test results;
that they were false and conducted under false pretense. By
allowing the test results to be released and submmitted as
evidence to the Hidalgo county prosecutor, Rene Guerra, the
McAllen Laboratory and it's dir~btors commited the ofense of
the Texas Penal code § 43.06. Acomplice Witness; Testimony and
Immunity (a) (b) (c) (d)
District Attorney Rene Guerra and the trial judge Mario
Ramirez Jr. of the 332ND criminal judicial court committed the
offense pursuant to the Texas Penal Code § 39.02. Abuse of
Official Capacity (a) (1) (2) and Texas Penal Code §39.03.
(a) (1) (2). Both Rene Guerra and Judge Mario Ramirez jr. should
know the laws of the state of Texas and the laws established by
the Federal Goverment. This is very important when both are
the "Gate Keepers' of the evidence being submitted to them as
being trustworthy, reliable, by the investigating peace officers.
Both should have known that the legislature had passed in Sept 1,
1995 1 the DNA Act, which included the Regulation of DNA Testing;
issued by the Executive Branch Department of Public Safety
Title Chapter 4 Section 411, and Sec. 411.0205, 411.0206, 411.144
and The Administrative Code Refrence DNA Database Testing See,
TAC § 28.1 et seq. which states that:
(b) A DNA Laboratory or criminal justice of law enforcement
11
agency shall follow the procedur~s:
(1) established under the director of this section;
(2) specified by the Federal Beurea of Investigations, to include
the use of compatable testing procedures, laboratory equipment,
supplies and comparable computer software.
5
Before allowing the DNA Test results to be admitted as
addmissable evidence under the Texas Rules of Evidence/ they're
ethical obligation was to ensure that the evidence; in this case
the DNA test results were not fraudulant1 and met the standard
opperating procedures, specified by the FBI, or comparable and
compatable to them. The DNA test results in this case are not
,.
even close to a compatable or comparable status requirment; when
analyzing DNA test results. Both Rene Guerra and Mario Ramirez
Jr. recomended to the Court of Criminal Appeals to deny a pri-
vious collateral attack on this same issue saying that the
FBI's standards and guidelines were meritless and not absolute.
The CCA agr~ed. All have abused they're discreation and official
capacity as administers of justice/ by allowing the Complaintant
Gustavo Mireles to remain incarcerate to life in prison, kbowing
that the DNA test results utilized to obtain this conviction are
unreliable/ fraudulant, inaccurate/ misleading, and unacceptable
forensic science then when the results were conducted in 2001,
and now. (See attached •xhibit- D)
PRAYER
Do to the reasons contained herein, the Complaintant prays
that this Honorable court enter a ruling granting this motion to
conduct a Court of Inquiry, in the "intrest of Justice".
Signed this 16th day of June 2014.
Respectfully Submmitted,
/sllJ. ,/!J@ll7 ..j · ;tf i vi>
Gustavo L. Mireles
3001 S. Emily DR.
McConnell unit
Beeville, Texas 78102
r
'0
INMATES DECLARATION
I Gustavo Lopez Mireles, presently incarcerated at the Texas
Department of Criminal Justice Division located at 3001 S. Emily
Drive, McConnell unit, Beeville, Texas, due solemly swear under
penalty of purjury that the foregoing facts are true and correct
to the best of my knowledge.
Signed this 16 day of June 2014.
INMATES SIGNATURE
Case No. CR-3196-01-F
STATE OF TEXAS § IN THE 139TH DISTRICT COURT
§
§
§
vs. § OF
§
§
§
GUSTAVO LOPEZ MIRELES § HIDALGO COUNTY, TEXAS
ORDER
On this the 14th day of August, 2014, the Court having examined the pleadings,
record, and the submitted transcripts, FINDS that there is lack of substantial facts to
establish probable cause for conducting a Court of Inquiry.
IT IS THEREFORE ORDERED that a Court oflnquiry not be conducted
SIGNED AND ENTERED on this the 14th day of August, 2014
~ruDGE
I
May 27, . 2014
HIDALGO COUNTY DISTRICT
CL~R~S OFFICE
ATfN~ LAURA. HINOJOSA .· .
_·. ·-~-``rrrF-~%9~:-:``eQRTHousE·- ·-. -~ .· _....
~ -~··-----
By ..
...
. ... ."1,0.0 ",N..,,,:,,CI:,.O,S,NE R, . BL V:,D••..•.. ,
··· · . ·rJ?!Io'``'~shx"~oR'lfwE:~R: ;:-s-7' '}l)·'a.':. .· . ·!
EDJNBURG, TEXAS 78540-0087 ·f .
I ,
/
Dear Honorable Clerk:· .· . ·.··· . . . . ...:1 fJ.·· 1e. ·st:.,_·.
.ri·ct
Please, if yo.u could, :would you be so kind an u te .01 ··
t,h,,i~s foregoing motion for disclos.ure in the 206th st:eyi'l.a
Cou1:-t,· 'Hidal,go. cqur1ty courthouse, judge Rose Guerra 0
pr~si:d:ii19. . . . civ.ed. an· ~as
. . Please, notify me when this ·motion. has. been re: root :Lon j.Cle
f.l.led '· as_ I haye ,no qtl}~r me.ans, to ver1fy that th J.. ~ure ~rt.
filed, pursuant' to. the 'Texas. Code of Criminal Proc e · · · 0 rtant
2.21. [Duty of cle;rks] Sec.tion (a), (1) (2) (3) (6)·erY imP·
Thank you for your; t_ime and at tent ion to this ~ ·
. --~R.~s'ii..;EJ;:,,g. ~:nt:.~:~<;.l!ts#J?·e.r...,~>-···";,,;)<"'~"'',.",;.;;·""~'·•·~"'-'"'...."';;•;..; ..~...·._•..........,,__``'"''"·-····· -~·*·'· ·"' ...·. . -
Sincerly,
``~>B.~
I..
GUS'fAVO
J. fl•. MlREL.ES ...
. ... - . ·.
-~
.. j)R•
ENCLOSURES: I RS~E -:t:); •
-CC: :INNOCENCE PROJECTS OF TEXAS, LEON OR MAT.~NO 1 58 9 . (si S toe
CAN'YON,-LAKE, TEXAS 78133, C~11: (5_12) 787-1180;
/
Cause N.o:
Ex-parte
§ '
IN THE 206TH STATE I
~1MfS.~][) 1
Gustavo L-. :Mire1.es §
_§ DISTRICT COURT
HID!\:.G_O,.,P~'"P.,~-J~ -&'t'Ri``~--M
v. §
Rene Guerra §.
Hidalgo County, Texas § E:PI-N:BURG; TEXAS MAY 3.0
.:'2 . ,:.·: :-.``~ ..
District At~orney :.-t~-
Edinburg, Texas · §
§
:c{i ·:. MOT:j:ON FOR DISCLOSURE CONCERNING
.. · ._·'PURSUANT TO THE DUE PROCESS CLAUSE OF
``~f';``~,``~'"o~iti~*iWliG_:~:;::~;:,~,::,``T,;·-·· ·
COM_ES NO.W _Gustavo L ~ Mir~les, in the above mentioned and
styled ca.use, and wi_ll respectfully sh9w this .Honorable Col}rt
~thei f~o~llowing:
i.I:: ;:idRISDICTION
Th-is ho.n 0 ~:able co.urt h_as the jurisqiction _to grCl.nt tnis
•<' - - ~-:.
Kyles v.
Wh;i;tlyl_514U. s. 419,433 (1995), United Sta1;.es V• Bagley~_ 473
U.s:<;·-66~_;·``::;.p81 0" .(1985.)!_United States y. Agurs, 427_, U.S. 97, 107
(1976); Braqy v_., Mar_yland, 373 u.s. 83 (19'63) Ex part,e Mqw.bray,
943 S. w. 2d 461,. 466 (tex .cr. App. 1996) the State has an
"afirmati ve duty"·, ';:o disclose favor~ble evide·nc_e •.
The State has a continuing duty to disclose favorable
ev.idenc9. At tri:a1 this duty is enforced by the requirements of
due process, but after a conviction the pros~cutor also ~$ bound
by the ¢t_h {cs ot .hl.s office to info-r-m. the defendant or a_?pro-
priate a.uthori ty of afte.r-acqub':ed or other information that
casts doubt upon the corr~ctnes s of the convi.ction. (see' Imbler
v •. Pacht_man, 424 u.s. 409, 427 (1976) (FN25).
1
--------~• .__L__
Cause No:•
§
Ex-parte IN THE 206T~ STATE
GustiVo L. Mireles § ' ..
.~
§ DISTRICT COURT IN THE
V• §
HIDALGO COUNTY COURTHOUSE IN
Rene Guerra §
Hidalgo County, ~exas § . EDINBURG, TEXAS
District .Attorney
Edinbur·g, Texas §
.§
MOTION FOR DISCLOSURE CONCER~ING EXCULPATORY MATERIAL
PURSUANT TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION.
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW _G..u~c~.5!Y,9.,.,L. Mire!``!~. in _t_ll.e..__ ab~y._~-``n-``~o_l_led and
s:tyled cause, and will respectfully show this Honorable Court
the following:
I. JURISDICTION
This honor~ble ~ourt has the jurisdi~tion to grant. thiA
motion everi ~ithoUt a request for Brady eVidence, material
evidence which is faVorable to the accused. (See, Kyle·s v.
Whltly, 514 u. s. 419, 433 (1995), United States v. Bagley, 473
u.s. 667, 680 (1985); United states v~ AIIJurs, 427, u.s. 9Ti 167
(1976); Brady v. Maryland, .373 u.s. 83 (1963) Ex parte r ..:-: .
Defendant Gustavo mireles was tried -and convicted to life in
prison, based soley and pr i mar·ily on the DNA evidence testimony
and tes:t r.esults conducted by the McAllen . texas DNA Laboratory.
However, just several months after GUstavo Mirles 's conviction,_
the DNA laboratory of McAll~n texas was secretlt closed ~itnout
notifying ~he- Hidalgo county District Attorney's office.
(See attached exhibit B).
2
The seceet ciosure was first made public in'March 15, 2004.
IJbetavo Mireles had already been convicted and 'sentenced: to life
in prison, in A.ugust 8, '2002. the l.aboratory was secretly closed
through June an·d septemberrof. 2003. District Attorney Rene Gueraa
hirtrself told the News media that•If the DNA evidence piayed a
major role in a ~e£endant~s conviction on cases that had already
been tried and aeijucated, that those cas_es had to be itemized and
re...,evaluated. This was to make sure that all the DNA testing
policies and procedi.ire:a~NA
laboratory or cri.minal justice law enforcement agency in the
collection, preservation, shipment~ analysis, and use of
blood sample or ot!1er spicimen for forensic DNA analysis
in ~a ma.nn~r that parmi ts~.:,tl::l.~"'"-~-~<;,h.~,P,9e _:.`` ..!:h.~.:c)?J.~"'``~2~!-J!:.!``:!~9~);:,v.;;;;;t,,, :~:<·>; .. ·.
\~.·.,.
. -.
(~J~·~f``~l:~.d:··~ ;-``~rat or i e s an a: ,tJie(::u?S;~1:i~();f:~--~t'he"'~:~v.r~a)~'ff\~ ~);/:-i'l1';: a?- -· · - ·. '·' <: ·.. ·.· ··
(b) A DNA laboratory :6r:/ci:1mina·l justice of law enforcement
agency shall follow the ·ptocedures:
(1) established under the director of this section; and
{2) specified by the Feder.al 13ureau of Investigations, to·
include, the use of comparable testing procedures,
laboratory eq.uipmant, supplies and compatable
computer software.
4
Compatabl'e DNA testing procedu'res to those of the Federal
Bureau of Investigation
Bureau of, Investigationsspolicies and procedures would have
required the McAllen, texas laboratory to utilize the standards
used by the FBI to compare an·d match DNA samples from the crime
scene to 41asttauocll!lsec1t!ts•s DNA sample and genetic profile.
This analytical. DNA Testing methodology was established nationwid
wide in 1998, which required identicle findings at a minimum of
13 alcbcfrent loci on the DNA from both the crime,scene and the
suspect's DNA samples .. The 13 CODIS (Combined DNA Index System)
core loci were and are: CSFlPO, FGA, TH01, TI?OX, VWA, D3Sll58,
D5S818, 078820, D8Sll79, Dl3S3l7, D16S5·39, Dl8S5i, and D21Sll •.
This was to ensure that the analyst had conducted his analysis
.in compliance and had. searched for all 13 loci and matched them,·
in order for the tiNA test results to be considered a "match".
If the analyst was off' just 1 of these 13 loci, and even if he
or she managed to match 12 other loci, he would have to agree
that the source of the DNA sample belonged to some other indi-
viduaL and. not the suspect. (See. attached exhibit C).
Honorable Judge presiding Rose Gu~rra teyna, has just
recently in. Febuary J0020l.~'";.."'~entenced .defendan"t Arturo Almaguer
·to 2 conse~utive .life· sentenc~:·~.:;``;'"r~;``'!:ilici'f``,;·~oit'``~:W\~,ha:.c,·~
W.ilda 8quires in 1988 ·"Cold Case''. It was this same FBI DNA
testing policies and procedures that Rene guerra and his
District Attorney's Office ut.ilized to link Almaguer to the
crime scene, and convict him of the murders .. This DNA testing
analytical methodology that was established by th~ FBI nationwide
back in October 13, 1998. (See attached exhibitCC).
''
5
·I•
Hidalgo county District Attorney, or no one from his Office,
has ever. notified §ust'avo Mireles concerning the re-evaluation of
his DNA· case files.; co,ncerning the DNA re,..testing and the pp&ic:ie
p~li~ie$ and procedu~es used in the re-evaluation procesa.
Gustavo Mir.eies; has a Constitutional Right, ·to be ·notified
about the issue of the re-evaluation of his DNA c·ase file, ~·tht
was used to incriminate him. If this evidence is disclosed, there
:is a reasonable probability that it may be fa_vorable in _fu_ture
appellate pro6eedingsi it and ~he~ the ~lip~essed evide~ce
undermines the confidence in the out come of the trial• .It is
and was Rene Guerra's duty to learn as an :individual prosecutor,
·of any favorable evidence known ·to others acti-ng on the goverment
behalf in this case, including the police. (See, Kyles, 514
u.s. at 437-438, Ex-parte Adams, 768 s.w. 2d at 291-92). If error
results iri the eharecter of the evidenc$, it 1 s not Rene Cuerra
tfie prosec~tor, that d~t~rmirtes whether the supression of the
evidence results in .·constitutional error~ tsee, · Agurs, 427
u.s. at 110.}.
CONCLUSION .
F~r. the reasons stated .. .in.:_,this moti_on, ,it .. ie· .the et}).icalc... .. ,,
····---~- -d``{~i~-``'---t``:``-.pr-~si;,d,ing magist~a·f``;-``f(;~l~i``f``,hif{;``~:&©f~u'a``;~t€:~-tt;2U~·~{';~F' <-··· ·•. ·f
a "Mini~terial Act ··,··~ltfi'ch requires a trial court to consi'der and
rule on a motion within a reasonable time. (See, Barnes v. state,
832 S.W.2d 424, 42.6 · (Tex App. Houston [1st dist.] 1992 orig.
proceeding). When a motion is properly filed and pending before
a t-rial cour·t, considering and ruling on that motion is a ·
. . .
ministerall act, and mandamus may· iss·ue to compel! the .. trial. · .. ··
court to act. (see, -Kissan v. Williams, .545' s.w. 2d 266-67,
( tex Ctv.Atp~. Tyle.r C?rig. proceeding 1976).
6
Mandamus is an appropiate proceeding in a criminal case if
the relator shows that the act sought to be compelled is pi.ir.e:ly
mirtistekial and relator has na other w•pedy at law~ (see, Simon
v. Levario, 306 S. w. 3d 318-2CD ( tex cr. App. 2009) •
PRAYER
Rela.to:t, Gustavo mireles, prays that this Honorable Court
ent·er a ruling concerning the issues presented in this motion,
and that the cour_t act in .it's ministerial duty, when .. doing so.
Furthermore, Relator asks this court to ·grant this motion,. :and
compel! Rene guerra or his district attorney's Office, to
properly inv-estigate in a timely manner, artd check and see Lf
Gus.tavo Mir.eles' s DNA case is. analysis, we.re re-evaluated; and
to provide Gustavo mirelea with such re-evaluation, to include
the analytical met hodoiogy utili zed in conducting the re-
evaluation 8K&lforensic analysis .•
Si~ned on this 27 day of May 2014.
Respectfully Submitted~
I sr
, f1v-ka
-
rY. !li.N.MATE DECLARQATION
I Gustavo Mireles, bei."rig presently incarcerated at the 'Insti-
tutional llivision,of t_he Texas Dept. of correctional -Justice
Mcconrtell unit, bee~ille, te~as, swear under penalty of purjury
that the foregoing facts ~nd documen~s are true and correct to
the best of my knowledge •.
Signature<,.
7 \
i
NUECES COUNTY COURTHOUSE
CHIEfP JUSTICE
901 LEOPARD, 10TH FLOOR
ROGELIO VALDEZ
CORPUS CHRISTl, TEXAS 78401
361-888-0416 (TEL)
JUSTICES
361-888-0794 (FAX)
NELDA V. RODRIGUEZ
DORI CONTRERAS GARZA
HIDALGO COUNTY
GINA M. BENAVIDES
ADMINISTRATION BLDG.
GREGORY T. PERKES
NORA L. LONGORIA QCourt of ~peal~ 100 E. CANO, 5TH FLOOR
EDINBURG, TEXAS 78539
956-318-2405 (TEL)
CLERK
DORIAN E. RAMIREZ tEbfrteentb mtstrftt of tEexas 956-318-2403 (FAX)
www. txcourts.govl13thcoa
December 18, 2014
Mr. Gustavo Lopez Mireles Hon. Rene A. Guerra
TDCJ #1128895 Criminal District Attorney
3001 S. Emily Drive Hidalgo County Courthouse
McConnell Unit 100 N. Closner, Room 303
Beeville, TX 78102 Edinburg, TX 78539
*DELIVERED VIA E-MAIL*
Re: Cause No. 13-14-00600-CR
Tr. Ct. No. CR-3196-0 1-F
Style: Gustavo Lopez Mireles v. The State of Texas
Enclosed please find the opinion and judgment issued by the Court on this date.
Very truly yours,
``$. ``
Dorian E. Ramirez, Clerk
DER:jgp
En c.
cc: Hon. Rose Guerra Reyna (DELIVERED VIA E-MAIL)
Hon. Laura Hinojosa (DELIVERED VIA E-MAIL)
State Prosecuting Attorney (DELIVERED VIA E-MAIL)
Hon. J. Rolando Olvera Jr. (DELIVERED VIA E-MAIL)
~. :( :- .' .
..
·
._, ·",.. .~ . ~ ·.\. . .. ' .
··-
'l' '\ '' ··~-"
'·"·:'
THE THIRTEENTH COURT OF APPEALS
13-14-00600-CR
Gustavo Lopez Mireles
v.
The State. of Texas
On Appeal from the
206th DistrictCourt of Hidalgo County, Texas
Trial Cause No. CR-3196-01-F
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion.
We further order this decision certified below for observance.
December 18, 2014
NUMBER 13-14-00600-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTl - EDINBURG
GUSTAVO LOPEZ MIRELES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion Per Curiam
Appellant, Gustavo Lopez Mireles, prose, filed a notice of appeal on October 14,
2014, from the trial court's September 29, 2014 denial of appellant's "Motion for
Disclosure Concerning Exculpatory Material Pursuant to the Due Process Clause of the
Fourteenth Amendment of the United States Constitution." This Court previously
j
The Court, having examined and fully considered the notice of appeal and the
documents on file, is of the opinion that there is not an appealable order and this Court
lacks jurisdiction over the matters herein. Accordingly, this appeal is DISMISSED for
I
lack of jurisdiction. All pending motions are likewise DISMISSED.
PER CURIAM
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
18th day of December, 2014.
3
(
ATTACHED
EXHIBIT
B
Consist of:
(1 ) Cause NO: CR-3196-01-F State of Texas v. Gustavo L.
Mireles Reporter's Records Volume 9. Trial on the
merits, on the 6th day of August 2002. State Forensic
analysis Orlando's Ochoa's. trial testimony.
(2) EXECUTIVE BRANCH DEPARTMENT OF PUBLIC SAFETY TITLE
4 Ch. 411 SUBCHAPTER G. DNA DATABASE SYSTEM, refrence
to § 411.142. DNA Database (b) (f) (g) (h).
(3) State's Exhibit #105 Texas Department of Public
Safety Physical Evidence Submission Form and State's
Exhibit #106 Serologist Orlando Ochoa's DNA Test
Results conducted December 12, 2001.
(4) McAllen Texas DPS. Crime Field Laboratory Shut-Down.
News Paper articles of audit conducted.
for allen Texas
DN me 1e Motion
·-=-on uct a "court of Inquiry'.
(6) Newly Discovered·``orensic affidavit evidence from
forensic analyst Harry J. Bonnell and Jonh Plunkett.
(7) United States Department of Justice , Office of
Justice Programs, National Institute of Justice
letter and publication of "DNA For the Defense Bar"
substantiating 13 loci search and match.
IN THE 13TH COURT OF APPEA !
CORPUS CHRISTl
REPORTER •c;: RECORD JUN- 5 2003
VOLUME i-
OF TI
TRIAL COURT CAUSE NO. CR-3196-0¢.AJIHY WI
BY ---?JU----;
THE STATE OF TEXAS § IN THE DISTRICT
§
vs. § HIDALGO COUNTY, TEXAS
§
GUSTAVO MIRELES § 332N° JUDICIAL DISTRICT
REPORTER'S RECORD
Trial on the Merits
On the 6tb day of August, 2002 the following ·
proceedings came on to be heard in the above-entitled
and numbered cause before the Honorable MARIO RAMIREZ,
Judge presiding, held in Edinburg, Hidalgo County,
Texas:
Proceedings reported by oral stenography.
RACHEL M. KRAM, CSR
OFFICIAL COURT REPORTER
92N° JUDICIAL DISTRICT COURT
100 N. CLOSNER
EDINBURG, TX 78539 13-1-
(956) 318-2250
'·
ORIGINAL
",.
: C~ Ll': 2BEn JUii -
(E) ..
1 A. Those are used as a reference or known
2 standards that·we use to compare to unknowh evidente
'•.
3 t ha,t
..r
we receive.
/'
4 / Q. Concerning the two blood lifts from the
/
5 outside of the Chevy pickup truck, the bldod ~tain
6 from the victim's jeans, and the black hair that you
7 recovered in the purse, could you determine who was
.." 8 the most likely contributor of that DNA?
/
I
I
9 A. Yes.
I 10 Q. Who is that?
11 A. It is consistent with the suspect.
12 And when you say consistent, how do you
13 determine if i t ' s consistent?
I .
I
14 A. Again, we'.r.e· looking at the different regions
I •
15 o·f the DNA and comparing them to the differen-t --'-'>to
16 the regions of the DNA to the known standard from the
17 suspect.
18 Q. And the hair that you tested there was the
19 pubic hair?
20 A. That is correct.
21 Q. What is the chance that the contributor of the
22 DNA is the defendant?
23 MR. VILLARREAL: Objection, Your Honor,
24 asking the witness to speculate.
~
25 THE STATE: Your Honor, he provides the
Rachel M. Kram, CSR
92ad Judicial District of Texas
?.()
(E) .
Q
~
1 same information in his report and it's part of the
2 same scientific testing he conducted.
3 MR. VILLARREAL: Your Honor, the
4 specificity of his report is based on six million
. ~·,
5 people -- I'm sorry, I believe six billion people
6 worldwide. We're talking about 147 billion people,
7 which exceeds the six billion that are in the world
8 alone, so where is the basis there? And more
9 importantly, Your Honor, that did not allow for th~
10 specific races, Caucasian, Negroid, Afro-American, ~nd
11 Mexican-American or Hispanics.
12 THE COURT: The objection is overruled.
13 Q. (By Mr. Schammel) When you make your
14 comparison, do you factor -- do you base the
15 ·comparison based upon different races and the
16 probability that that DNA will appear in different
17 races?
18 A. Well,·we do. Once we get a DNA profile --
19 MR. VILLARREAL: Objection, Your Honor,
20 becoming nonresponsive; calls for a yes or no answer.
21 THE COURT: Sustained.
(By Mr. Scttammerr--·wha t
22
23
Q.
. -·
the res u 1 t s ?
-------· a~·-yo-n
2 A .. We provide a probability of a match.
,.
'
And what is the -- what do you use as
Rachel M. Kram, CSR
92ad Judicial District of Texas
,.. \
._.;.---
;.'
o-
c.,
~
)y 1 for the probability of the match?
`` 2 A. It's a data base,. it's a computer system that
3 we use where we ~nter the DNA profile that we obtained
4 from the evidence and it provides us with a
.·::-,
5 statistical value.
6 Q. Does that statistical value -- is it
7 correlated for different races or is it for the world
8 in general'?
9 A. It -- i t ' s divided into different -- three
10 different races.
11 Q. Which races is it divided into'?
12 A. Caucasian, Blacks, and Hispanics.
13 Q. What is the chance of seeing the DNA
14 profile what is the probability of a person be~ng
15 the source of the DNA profile that you obtain~'?
16 A. The -- for which items'?.
17 Q, For the blood stains from the Chevy pickup,
18 the blood stain on the victim's jeans, and the pubic
19 hair found in the purse.
20 A. '
For -- the DNA profile that was ~btained from
21 the blood stain of the Chevy pickup, the blood stain
22 from the victim's jean, and one of the pubic hairs
23 from the black purse, the probability of selecting an
24 unrelated. person at random who could be the source of
~
25 this DNA profile is approximately one in
Rachel M. Kram, CSR
92 d Judicial District of Texas
11
(A)-(a,)
1 THE COURT: That's sustained.
2 A. Carr ---let· me --
3 THE COURT: Wait a minute. Go ahead,
4 Mr . S c h a mm e 1 • ~-
5 Q. (By Mr. Schammel) Given the population of the
6 world, how likely is it that this is the -- that the
7 defendant is the person?
8 A. Again, one in 1 trillion-168 billion for
9 Caucasians, one in 301 trillion-700 billion for
10 Blacks, and one in 147 billion-300 million for
11 Hispanics.
12 Q. Now, was there any other DNA that was obtained
13 from any other items?
14 A. Yes, there was.
I- . 15 Q. Was there any other DNA obtained from items
16 that matched the defendant?
17 A. Yes.
18 Q.
19 A. A se hair from the
20
being the person who contributed that DNA sample?
22 A. One in 34,230 for Caucasians, one in 181,900
23 for Blacks, and one in 24,180 for Hispanics.
24 Q. Now, why is there a var~ance from that
25 particular hair, the DNA you obtained there, compared
Rachel M. Kram, CSR
92Dd Judicial Distri f Tex
0
• J
1 to the DNA you obtained on the other hair?
2 A. Yes, because we're looking for, as I mentioned
3 earlier, we're looking for various reqions of the DNA.
' .... ,
4 Wfl'~e testing various regions, nine regions of the DNA
plus the sex chromosome that allows us to Heterrnine if
the -- the body fluid comes from a male or a female.
7 Depending on how many of those regions we're able~
8 recover doing our DNA analysis and do a comparison,
9 the numbers may vary. In other words, if we get a
10 full profile, if we're able to get all nine regions to
11 come up and give us a profile for the spec~men or for
12 the body fluid, then we're able to compare those nine
13 regions and get a better number whereas if we were to
:14 compare -- because we only got two -- two or three of
the regions, we're not able to compare as.mani regions
of the DNA so we're not able to get the more
17 specific -- or the more specifiG statistical
18 Q. What are some of the reasons that you would
19 obtain less than all nine of these points that you're
20 lookiQ.g. for?-···-····-···-··-··-·---··-··
A. Again, the conditions of the body fluid, of
•
the evidence itself. Well, was there degradation of
the DNA, were there dyes or chemical that might have
interfered with the technology, the DNA processing.
Q. Was there any other DNA obtained in this case?
..... -·"'
_____/
Rachel M. Kram, CSR
92ad Judicial District of Texas
``
( (c) 0.
q -------....;.;:::..-_
-/
1 A. Yes, there was.
• . • • ~ a, •• ..........
2 Q. And was there any of.that DNA~t matched the
'·
3 victim in this case?
4 A. Yes, there was.
5 Q. What specifically did you find that matched).
6 the victim? \
7 A. A hair obtained from the victim's socks and
I
8 blood from the victim's fingernail scrapings.
9 Q. And these were consistent with Mary Jane?
10 A. Correct.
11 Q. And what is the likelihood
.... that she was the
12 person that l~ft that DNA there?
13 A. One in 28 for Caucasians, one in nine for
14
Q. Now, this is extremely low.
that?
A. The blood itself that was recovered from the
victim was not letting itself to DNA analysis, so I ;
19 wasn't able to get a complete profile from the known
20 blood. It appeared to be diluted. It could have been
21 caused by -- during the autopsy or something that it . I
might have been diluted out to where I wasn't able to
get g.~d DNA.
,..::...... .. ... .. ---·· -··------··
24 Q. As to the blooo· under the V~ctim' s fingernails
~
25 and on the hair from the sock, you can say that the
Rachel M. Kram, CSR
92DdJudicial District of Texas
.
!
VoL 9. • J
1 defendant is not the contributor there?
2 A. Yes.
3 Q. Now, were there any items on which no DNA was
4 recovered?
5 A. Yes, there was.
6 Q. Several?
7 A. Yes.
8 Q. The screwdrivers and knives that were
9 admitted, was there any blood or other DNA evidence
10 recovered from those?
11 A. There was no blood detected.
12 Q. As to the drill bit also?
13 A. Which item are you referring to?
14 Q. Item number 42-B on your list. It would be
15 State's 73-B.
16 A. No blood was detected.
17 THE STATE: Permission·to approach the
18 witness?
19 THE COURT: Yes.
20 Q. (By Mr. Schammel) Let me show you what was
21 previously marked as State's 85, and it was previously
•
22 testified that there is nothing inside of State's 85.
\?3 Do you see anything there?
'·
24 ... _ . A. No .
25 Q. What was the laboratory number on State's 85?
Rachel M. Kram, CSR
9lad Judicial District of Texas
. !
B lo[. ~-
Q. So if you look at other places, you might hav\
been able to find someone else? \
A. You're going to -- the probability, again,
would be that you would find that pr?file in another
5 individual.
6 Q. So if we got 31 people in there, there's a I
7 probability or a possibility that one of us did it?
8 A. Or that one of you has that DNA profile.
9 like you mentioned with the DO alpha that i t ' s one
10 region and that's why you get the statistical values
11 of one in 14, I believe you said, one in 20- --
12 Q. One in 28 total and in Hispanics is one in
13 five.
14 A. Right. And so that's why we --we look at
15 more than one region, more than two regions. We look
16 at nine, ten regions up to 13 regions to make it more
17 specific to an individual.
18 It's --for example, if you don't mind me
19 explaining a little bit more. I t ' s 1 i ke , f or e x a ~p 1 e ,
20 you're looking for an individual. Well, you're
21 looking for a female, so that's going to cut out all
22 the males. You're looking for a female that is ..
23 looking five foot -- five feet, so that's going to cut
24 out everybody that's not five feet. So the more
'
25 things that you look at, the ·more specific it becomes
Rachel M. Kram, CSR
92ad Judicial District of Texas
,,
~
,
,_'l /.J
L •
} '1 ij
'\!._' \C'j 1 is. That's not --
2 Q. So if the stain was two weeks old, yo~
3 couldn't tell the difference between a two-day old and
4 a two-week old stain, would you?_
5 A. That's correct.
--···
6 Q. And if the stain were let's say contaminated
7 as you say the victim's blood was, which you could not
8 type -- is that correct, you could not type her
9 blood -- or you found no DNA?
I
10 A. It didn't give u~ -- it didn't give us all of
~ I
11 the regions that we looked at or that we amplified.
12 Q. Which means you got negative results on her
13 DNA?
14 A. On some of the -- we got like maybe two locus
~ 15 out of 10 loci that we looked at.
16 Q. Let's talk plain English.
17 A. ~·
"l
~ 18 Q. You didn't match her own blood.
19 A. We didn't match her own blood?
1
20 Q. Yeah.
21 A. That's not-- npt necessarily true.
22 Q. But is it possible?
23 A. That you're not matching
24 Q. Could you put it that way?
25 A. That you're not matching someone's blood?
Rachel M. Kram, CSR
92od Judicial District of Texas
1 Q. Yes.
2 A. Well, if you're obtaining the blood from t:
3 individual, you know that that individual -- it
4 belongs -- or that blood belongs to that individua
5 Q. That ' s common s ens e , i sn' t it ?
6 A. Yes.
7 Q. But if DNA says according to -- and is use
8 a known standard, your item number 22-A, blood fro
9 victim, however the blood was not suitable for DNA
I
10 analysis. Common sense says i t ' s her blood.
11 ~------------------------
Q. But DNA says it's not.
A. N~t -- it'~ not saying that i t ' s not her
blood. It's saying that it wasn't able to provid~
with --
Q. See, we've been playing word games with th
other
18 A.
19
20 THE STATE: Objection to the side bar
21 Your Honor.
22 Q. DNA
23 THE COURT: Hold on.
24 MR. VILLARREAL: I apologize, Your He
25 and to the jury.
Rachel M. Kram, CSR
92ad Judicial District of Texas
;~ _-
§ 411.1405 F..xECUTIVE BRANCH DEPARTMENT. OF PUBLIC SAFETY § 411.142
\ Title 4 .Ch.411
(c) A state agency that obtains criminal history recon~ information under this SUBCHAPTER G. DNA DATABASE SYSTEM
section may not release or disclose the information or any documents or other
records derived from the information except: CroSs References
(1) by court order; Community supervision, conditions, submission of sample for purpose of creating a DNA record,
see Vl'fllon's Ann.C.C.P. art. 42.12. ·
ri\
(2) with the consent of the person who is the subject of the .information; or
(3) to the affected <;_ontractor or subcontractor, unless the" information was § 411.141. Dellnitions ~
obtained by the department from the Federal Bureau ~f Investigation. In this subchapter:
(d) A state agency and the affected contractor or subcontractor shall destroy (1) "DNA" means deoxyribom.icleic acid.
criminal history record information obtained under this section that relates to a
person after the information is used to make an employl:nent decision or to take (2) "DNA database" means the database that contains forensic DNA .~ec­
a personnel action relating to the person who .iS the subject of the information. ords maintained by the director.
(3) "DNA laboratory" means a laboratory that performs forensic DNA
(e) A state agency may not obtain criminal history record information under
analysis on samples or specimenS- derived fro1n a human body or crime
this section unless the state agency first adopts polici~s arid procedures that
scene.
provide that evidence of a criminal conviction or other relevant information
obtained from the criminal history record information-does not automatically (4) "DNA record" means the results of a forensic DNA analysis performed
. disqualify an .individual from employment. The attorney general shall review by a DNA laboratory and; if known, the name of the person who is the subject
the_ policies and procedures for compliance with due grocess and other legal of the analysis. ·
req~irements before adoption by the state agency. The attorney _general may (5) "FBI" m~::ans the Federal Bureau of Investigation.
charge the state agency a fee to cover the cost of the review. The policies and (6) "Institution of higher education" has the meaning assigned by Section
procedures adopted under this subsection must providei that-the hiring official 61.003, Education Code. ·
will determine, on a case-by-case basis, whether the in~ividval is qualified for
(7) "Institutional division" means the institutional division of the Texas
employment based on factors that include: .
Department of Criminal Justice.
(l) the specific duties ofthe position;
(8) "Penal institution" has the meaning assigned by Section 1.07, Penal
(2) the number of offenses committed by the individual; Code. '
"'"
(3) the nature and seriousness of each offense; Added by Acts 1995, 74th Leg., ch. 595, § 1, eff. Sept. 1, 1995.
(4) the length of time ben."veen the offense and the employment d~cision;
(5) the efforts by the individual at rehabilitation; and Historical and Statutory Notes
Section J{a) of Acts 1995, 74th Leg., ch. 595 chapter G, Chapter 411, Government Code, as
(6) the accuracy of the information on the~ individ4al's employment appli- provides: · · · added by this Act, not later than January 1,
cation. 'The director of the Department of Public 1996."'
Safety shall adopt the rules required by Sub-
(f)-A-criminal-history-record-irifotrna!ipri proviSion }n_:anoilier_@w.that is
(~.o~e _specific:to-a:siaie ·.;_g-``~._:jii~i~dm.g·_ Se~tJ.o!1~41 ~ iOS~ .yrellail~-.'!!Y~'
(O":...tli·~-~DNA-:c:latabase·;must'be comlfaulileWjth the ·nation~! DNA identifica..:_ · ·disaster,:or:.forc[tluinariitaR'``es·
::·,
f.:..````· .;?'>'b;. . criminal history record information.
laboratory th.at.meet .or. exceed the current standards for· quality assttrance <,!n_d ......~
Added by i\cts 1995, 74th Leg., ch. 595, § I, t:ff. Sept. I, 1995.
,p}oficie~cy_ ~sti_Qg forJorensic;~Dl':JA ,analnLsjss·ued.-by.. the FBI-. -ThL.'oNA --~r/·
``{~·
data·b.;:.;e may contain only DNA records of DNA analyses performed according Libr"ry References
to the standards adopted by the department. . ·
·criminal Law ~1226(1). CJ.S. Criminal Law§ 1734.
Added by Acts 1995, 74th Leg., ch. 595; § I, eff. Sept. I, 1995. Amended by Acts 100 I, Searches and Seizures €=>78. CJ.S. Searches and Seizures §§ J I. I 03 to
77th Leg., ch. 2. § 4[e!T.-Ajmr5;--200ll. West]aw Topic Nos. 110. 349. 106.
....._,._~
Library ReferencH Research References
Criminal Law 1226( 1). ALR Library
Westlaw Topic No. 110. 76 A.L.R. 5th 239. Validity. Construction. and
C.J.S. Criminal Law§ 1734. Operation of State Dna Database Statutes.
154 155
1 £!'
I
\
``
. §41l.143 EXECUTIVE BRANCH 2003 WL 22976095. Searches And Seizures e=>
78
shall: .
I. In general
For purposes of Fourth Amendment analysis (1) forward the DNA record of the analysis to the director at the depart-
of legality of blood. draw ordered pursuant to 3. Privacy rights · ·
,., ment's crime laboratory or another location as required by the department;
statute, purposes of statute establishing state Statute permitting juvenile courts _to require
DNA 'databank demonstrated need for DNA submission of blood or other samples for pur-
and
samples beyond normal need for law enforce- poses of DNA records as condition of probation (2) comply with this subchapter and rules adopted under this subchapter.
ment; statute was not designed to discover and in delinquency adjudication proceedings did not
produce evidence of specific individual's crimi- promote traditional aims of punishment, despite (e) If a DNA laboratory violates this subchapter or a rule adopted under this
nal wrongdoing. In re D.L.C. (App. 2 Dist.
2003) 2003 WL 22976095. Searches And Sei-
potential deterrent effect of existence of offend- subchapter, the director· may prohibit the laboratory from exchanging DNA
er databank, for purposes of determining
zures e=> 78
whether statute was punitive in its effect, as
records with another DNA laboratory or criminal justice or law enforcement
Statute permitting juvenile courts to require element of ex post facto analysis, where legisla- A DNA laboratory prohibited from exchanging DNA records under
submission of blood or other samples for pur- tively stated purpose of statute was identifica- this subsection may petition the director for a hearing to show· cause why the
poses of DNA records as condition of probation tion, that is, to exclude or include registrants as
iri delinquency adjudication proceedings was suspects in past and future offenses; and
laboratory's authority to exchange DNA records should be reinstated.
not punitive on its face, for purposes of ex post "threat" of blood draw was not, in itself, signifi-
t'
facto analysis; statute's location in dispositional
(f) The director is the liaison for DNA data, records, evidence, and other
cant enough to deter potential offenders from
portion of juvenile justice code did not render committing sex offenses. In re D.L.C. (App. 2 related matters between the FBI and a DNA laboratory or a criminal justice or
statute punitive, and legislature's express, pri- Dist. 2003) 2003 WL 22976095. Constitutional law enforcement agency. · · ' ·
mary intent in creating DNA record was to Law e=> 203; Infants e=> 132
assist with identifications in past and future· sex (g) The director may: ··
offenses. In re D.L.C. (App. ~ Dist. 2003) 2003 Statute permitting juvenile courts to require
WL 22976095. Constitutional Law e=> 203; In- submission of blood "r other samples for pur- (1) conduct DNA analyses; or
fants e=> 132 poses of DNA records as condition of probation (2) contract with a laboratory, state agency, private entity, or institution of
in delinquency adjudication proceedings did not
2. Purpose impose aft1rmative disability with respect to ju- '"'higher education for services to perforrii DNA analyses for the department.
For purposes of Fourth Amendment analysis
of the legality of a blood draw ordered pursuant
venile probationers' constitutional · privacy
rights, for purposes of determining whether
(h) The institutional division may: ....
to statute, the primary purpose of the state DNA statute was pun;tive in its effect as element of ex (1) collect a blood·sample or other specimen for forensic DNA analysis; or
databank is to assist in investigation or prosecu- post facto analysis; constitutional rights of juve-
tion of sex-related offenses or other offenses in nile probationer$, including constitutional pri- (2) contract with a laboratory, state agency, private entity, or institution of
which biological evidence is recovered and to vacy rights, were diminished, and possibility of higher education for services to collect a sample or other specimen under this
exclude or identify suspects; secondary pur- wrongful disclosure of information was mini-
poses are to assist in recovery or identification mized by statutor1 limitations on disclosure. In
subchapter.
of human remains from a disaster or for hu- re D.L.C. (App. 2 ·Dist. 2003) 2003 WL
Added by Acts 1995, 74th Leg., ch. 595, § I, eff. Sept. I, 1995. ·
't
manitarian purposes, to assist in identification 22976095. Constitutional Law e=> 82(1 0); Con-
of living or deceased missing persons, and to stitutional Law e=> 203; Infants e=> 132
Cross References
Crime laboratory, accreditation process, see V.T.C.A., Government Code,§ 411.0205.
§ 41l.144. Regulation of DNA Laboratories; Pena,lties Regulation of DNA testing, see V.T.C.A., Government Code § 411.0206.
(a) The director by rule shall establish PI:Ocedures for a DNA laboratory or Administrative Code References
criminal justice or law enforcement agency in the· collection, preservation,
DNA database,
. see 37 .TAC § 28.1 et seq.
shipment, analysis, and use of a blood sample or other specimen for forensic
DNA analysis in a manner that permits the exchange of DNA evidence between Library References
DNA laboratories and the use of the evidence in a criminal case. Criminal Law e=>I226(1). C.J.S. Criminal Law§ 1734.
(b) A DNA laboratory or criminal justice or law enforcement agency shall Searches and Seizures e=>78. C.J.S. Searches and Seizures §§ 31, 103 to
Westlaw Topic Nos. 110, 349. 106.
follow the procedures:
( 1) established by the director under this section; and
Fees
(2) specified by the FBI, including use of comparable test procedures,
laboratory equipment, supplies, and computer software. (a) The director may collect a reasonable fee under this subchapter:
156 157
...._
§ 411.145 EXECUTIVE BRANCH DEPARTMENT OF PUBLIC SAFElY
Title 4 Ch. 411 § 411.147
(1) for the DNA analysis of a blood sample or other specimen submitted (0 If possible, a second DNA specimen must be obtained from a suspect in a
voluntarily to the department; or criminal investigation if forensic DNA evidence is necessary for use as substan-
(2) for providing population statistics data or other appropriate research tive evidence in the prosecution of a case.
data.
Added by Acts 1995, 74th Leg., ch. 595, § 1, eff. Sept. 1, 1995 ..
(b) A fee collected under this section shall be deposited in the state treasury
to the credit of the state highway fund, and money deposited under this section Library References
and under Article 102.020(h), Code of Criminal Procedure, may be used only to Searches and Seizures ~78. C.J.S. Searches and Seizures §§ 31, I 03 to
defray the cost of administering this subchapter. Westlaw Topic No. 349. 106.
Added by Acts 1995, 74th Leg., ch. 595, § I, eff. Sept. I, 1995. Amended by Acts 200 I.
77th Leg., ch. 1490, § I, eff. Sept. I, 2001. § 411.147. Access to DNA Database Information
Library References (a) The director by rule shall establish procedures:
Criminal Law ~1226(1). (I) to prevent unauthorized access to the DNA database; and
Westlaw Topic No. 110.
C.J.S. Criminal Law§ 1734. (2) to release DNA records, specimens, or analyses froin ·the DNA data-
base.
(b) The director may adopt rules relating to the internal disclosure, access, or
§ 411.146. Blood Samples or Other Specimens
'\
use of a sample, specimen, or DNA record in the department or it DNA
(a) The director may not accept a blood sample or. other specimen taken laboratory.
from a person who is not deceased that is submitted voluntarily or as required · (c) The department nay release a DNA sample, analysis, or record only:
by Section 411.148 or 411.150 unless the sample or specimen is collected in a
(1) to a criminal .iustice agency for law enforcement identification pur-
medically approved manner by: ' poses;
(1) a physician, registered nurse, licensed vocctionai nurse, licensed clini- (2) for a judicial p78. C.J.S. Searches and Seizures §§ 31, 103 to
(b) After a defendant described by Subsection (a)(l) is indicted or waives Westlaw Topic Nos. 110, 349. 106.
indictment, the court in which the case is pending shall require the defendant ...
to provide to a law enforcement agency one or more specimens for the purpose § 411.1472. DNA Records of Persons Placed on Community Supervision
of creating a DNA record. A law enforcement agency arresting a defendan-t for Certain Offenses ·
described by Subsection (a)(2). immediately after fingerprinting the defendant
and at the same location as the fingerprinting occurs, shall reQuire the defen- (a) This section applies to a defendant placed on community supervision,
dant to provide one or more specimens for the purpose of creating a DNA including deferred adjudication community supervision, for an offense listed in
record. After a defendant described by Subsection (a)(3) is convicted or placed Section 411.1471 (a)(l).
on deferred adjudication, the court shall require the defendant to provide to a
law enforcement agency one or more specimens-for the purpose of creating a (b) A court that grants deferred adjudication or places a defendant on
DNA record. · community supervision shall at the time of entering the order or making the
placement require the defendant to report to a law enforcement agency to
(c) A defendant described by Subsection (a)(l) or (3) may at any time
provide one or more specimens for the purpose of creating a DNA record.
voluntarily provide a specimen for the purposes described by Subsection (b).
(c) The director by rule shall require law enforcement agencies taking a
(d) The director by rule. shall require law enforcement agencies taking a
specimen under this section to preserve the specimen and maintain a record of specimen under this section to preserve the specimen and maintain a record of
the collection of the specimen. A law enforcement agency taking a specimen the collection of the specimen. A law enforcement agency taking a specime~
under this section may use any method to take the specimen approved by the under this section may use any method to take the specimen approved by the
director in the rule adopted under this subsection. The rule adopted by the director in the rule adopted under this subsection. The rule adopted by the
director must prohibit a law enforcement agency from taking a blood sample director must prohibit a law enforcement agency from taking a blood sample
for the purpose of creating a DNA record under this section. The agency may for the purpose of creating a DNA record under this section. The·agency may
either send the specimen to the director or send to the director an analysis of either send the specimen to the director or send to the director an analysis of
the sample performed at a laboratory chosen by the agency and approved by the sample performed at a laboratory chosen by the agency and approved by
the director. the director.
160 161
-1'\-
TEXAS DEPARTMENT OF PUBUC SAFETY
PHYSICAL EVIDENCE SUBMISSION FORM
PLEASE PRINT OR WRITE LEGIBLY SEE INSTRUCTIONS ON THE BACK OF THIS FORM
IDS DP$ UBORATDI'lY USE ONL.Y
.;
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AFIS ....
I
Submllllon Oa!tJ
71612001
Flra!:nnl
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Oulllt. Doc.
TOII!cdagy
l3M 48628
/
.
lnveltiglerr
(Title. N.amt) JOEL CASTRO CSS !J/ Send Cclpy to JOEL CAS"m01 CSS
~ HIDALGO COUNTY SHE~FF"S DEPART A~ HIDAlGO COUNTY SHERIFF'S DEPART
Addresa P. 0. BOX359 Addrela P. 0. BOX 359
C1tV. Stl:le EDINBURG 1 TEXAS Z1p 78540
. Clly,Stllle EDINBURG 1 TEXAS Zip 78540
Phone Number 956-383-811<4 Submltllng AtJent:t F1e Number
F.,ctunber
SUSPECTS a..t. Flrlf
95&-383--1187
Middle\ Race Se DOB
I VICTIMS ~last. Fnt Mlddlel
01·13017
RaCe Sex I
MIRELES GUSTAVO w M ROBOUAR ~JANE w F 6J1!
3 REMOVED FROM RIGKT SOCK OF VICTlM AT
SCENE
. HIAR STRANDS REMO\IED FROM BODY OF VJCT1M AT SCENE
5 BLOOD STAIN UFT
I BLOOD STAIN UFT OUTSIDE PASSENGER DOOR CHEVY P/U TO ITEMS I %2,36
KANSAS LP UCE 432
13 STAINS, HAIRS. COMPARE TO
t .zue
FROM BODY OF VICTIM AT AUTOPSY STAINS, HAIRS. COMPARE TO
'" t%2.38
STAINS, HAIRS. COMPARE TO
15
'22.38
te REI.40VED FROM BODY OF VICTIM AT AUTOPSY STAINS. HAIRS. COMPARE TO
WARE" t%2.30
.
.
- I . J
&.' : ~. ' ~
.
t f.L /
~0- .
TEXAS DEPARTMENT OF PUBUC SAFETY
PHYSICAL EVIDENCE SUBMISSION FORM
PLEASE PRINT OR WRrrE LEGIBLY SEE INSTRliCnONS ON THE BACK OF THIS FORM
DPS UBORA TORY liSE ONLY
~·- ~
-;
SubmiuJcn 0«1
71612001 I /
Tra::e
Drugs
Flrl8rma
AJcd'rd E:l l3M 4 8 6 2'8 I
~IU:JI
(Tlk.Narne) JOEL CASTRO CSS iii
HIDALGO COUNTY SHERIFF'S DEPART
S...SC!lpyto JOa CASlR0 1 CSS
HIDALGO COUNTY SHERIFF'S DEPART
Arlrcr AIJ«r:y
~ P. 0. BOX 359 A.cilfn!ll P.O. BOX359
City, Stille EOINBURT, TEXAS . Zip 78540 Clly, SUI!C EDINBURG 1 TEXAS Zip 78540
Phc:nl Number 956-383-811"' Submitting AQt«:J File Number
F• NIA'Tibar 958-383-4187
SUSPECTS lUst. F"nt Middle) Raoe Sa 008
I VICTIMS ll..ad. Flrllt ~
01-13077
Race Sill _DC)
RELES GUSTAVO w M ROBOUAR MARY JANE w F 811911
-----=CAP~rr.~AL~O&nM~M~UR~O~E=R~----`` ``-----------````````1----------````---------~-H~I=O````~O~-·----­
ITEIIS OF 'HYBJC4 EVIDENCE IUBMTTED
Ean Requested
":!...~
..Ahlbll No. Origin
!A., ~.eli;.) (loa-. ............ . , ............, tc-.!DA..-:.)
23 HAIR STRANDS . INSIDE BLACK PURSE COMPARE TO rrEMS t 23.36
24 BLACK twroi.E SHORT PHIWPS SEAT GMC PAJ TRUCK TX LP .ltV 7110 TRACES OF BLOOD, SKIN 'nSSUE. HAIR.
HEAD Sau:w DRIVER COMPARE TO ITEMS t 23.36
25 a.EAR AND RED Hot.NCC..E LONG Dof.SHSOAAD GMC PIU TRUCK TX LP J1V 790 TRACES OF BLOOD, SKIN nS$UE. HAIR
FLATHEAD SCREW DRIVER COMPARE TO ITEMS t 23.36 ·
2e BLACK HANDLE STEAl< KNIFE FLOORBCWW GMC PIU TRIJCK TX LP JW 710 TRACES OF BLOOD, SKIN 'nSSUE, HAIR.
-nv.MOHnNA• COMPARE TO rtEMS I 23.38
21 HAIR STRANDS FlOORBCWW GMC PAJ TRUCK TX.LP J1V 790 COMPARE TO ITEMS t 23,36
28 HAIR STRANDS SEAT GMC PAJ TRUCK TX LP J1V 780 COMPARE TO JTEMS t 23,3&
.
28 BLUE IN COLOR SEAT COVER SEAT GMC PIU TRIX:K TX LP JW 780 COMPARE TO ITEMS t 23.3&
30 PR SPRAY PAJNTED BLACK MILITARY HUECES COUNTY DETC~ CENTER TRACES OF BLOOD. SKIN TISS\JE. t-WR.
TYPE BOOTS SIZE 1 t I 55070 INJMTE GUSTAVO MIR£LES PROPERTY COMPARE TO ITEMS t 23.38
31 GRAY PUU.-OVER POLO TYPE T· NUECES COUNTY DETENTION CENTER TRACES OF BLOOD, SKIN TISSUE, t-WR.
SHIRT epREMIRf8 SIZE L INMATE GUSTAVO MIRELES PROPERTY COM'ARE TO ITEMS I Z3,3e
page2 ct3
RECEIVED
'. rr rr o_t\ 1nnt
_..,..,.
PiNse Include I brief aynapsll Cl' capy ~ the cft8lae repat to asaist the Wlll)ost ·
Submit ., ~ a'ld two c:cpie5 (If I 5Umped ret:a9lll nquiled). LABORATORIES
MCALLEN
-Mi-
TEXAs DEPARTMENT OF PUBUC SAfETY
PHYSICAL EVIDENCE SUBMISSION FORM
s s .. ~NA
PLEASE PRINT OR WRITE LEGIBLY
~
SE£ INSTRIJCT10HS ON TlfE BACK OF THIS FORM
.'JPISLASORATORYUSEOIIl.'l
``___s~-````~:``````~8``--d·__8___~_··-~_·__l_3_M_·__4_8_·_6_2__8______ I'
~
(Title.Narne) JOEL CASTRO CSS ~ Send~ to JOEL CASlRO, CSS
Atptcf HIDALGO COUNlY SHflJRFF'S DEPART ~ HIDALGO COUNlY SHERIFF'S DEPART
AddresG P. 0. BOX 359 ~ P. 0. BOX 359
City, SUllO EDINBURG, TEXAS ZJp 78540 City. Slllto EDINBURG, TEXAS Zip 78540
956-lln-811<4
956-383-<4187
01-13017
....;S::.:U;:.SP:..:E::::CTS:.:.:.;tl~.::l.Mt.:::::...:..:fni==..::::::Mdd=le:.~..-1_ _ _ _-f.:.Race=~Se:r=-f..--=DO=B___. VICTI'MS n.-. Fln:l Mddlel Alee Sex DOE
~M~IR~E::.:LE~S~G~U~S~TA``~--------------~W``M~----~ ROBO~MARY~E W F 6/19r'11
------``````MU~R:D~E~R ____ ~I ``----------DH``````~oo~1----------`` ``--------``H~ID=````-------
ITbiS OF PHYSICAL EVIDENCE IU8MITTED
~No. n.n
.ia;c.Delcrlptlan
_ _, Ortgln E.ln Requetecl
c-..,._ ...,
"'' .S.*-J rs.--...,_IH _..,...·*-'
32 BWE DENIM JEANS "'PEN THAD" NUECES COUNTY DETEHTION CENTER TRACES OF BlOOD, SKIN 11SSUE, HAIR.
WISTAINS SIZE 38X32 INIMTE GUSTAVO MIRElES PROPERTY COMPNUJ;. TO ITEJoiS II 23.311
34 WHilE IN COLOR FTl UNDERWEAR NUECES COIJN1Y DETENTION CENTER TRACES OF BLOOD, SKIN TISSUE, HAIR.
INMATE GUSTAVO MIRELES PROPERTY COMPARE TO rTiMS II %3.36
35 HAIRSTRAHO RIGHT PANTS LEG OF BLUE DEHtM JEANS COMPNUJ;. TO rTEMS II 23.31
~·32
42A ORANGE HANDLE SCREWDRIVER, SIE BEDROOM INSIDE lV CONSOLE FM 43 & TRACES OF BLOOD. St vJ...d ~ (.A ' ~t·vnvv · ....... The victim cannot be excluded as the
..J.k ~a -vA. "r
.J ~ > "'~<.contributor of the DNA.· See DNA results. The
·~ J , ~ ~"'" f ·N s~ .(:: ~- wtJf
suspe~ is excluded as the contributor. -
- Hair strand Victim's lbody"' t · Visually similar to victim's head hair standard.
Apparent tissue tested positive for apparent
/ : .. -- :· --~. .
blood. No further analysis was done.
... ···-- ....... ---· - ___ .
..:..------ .,
5 Bloodstain lift Outside passenger The appar(mt bloodstain'was determined to be
door of Chevy P/U of human origin. The DNA profile is consistent
Kansas L. P. LXE 432 with the suspect. See DNA results.
······').
6 Bloodstain lift Outside passenger The apparent bloodstain was determined to be
door of Chevy P/U of human origin. The DNA profile is consistent
Kansas L. P. LXE 432 with the suspect. See DNA results.
COURTESY- SERVICE • PROTECTION /
Offense Date
Agency Case Number
· Laboratory Case Number 06/23/01
0113077
L3M- 48628
' RESULTS
·)rEM DESCRIPTION ORIGIN
13 Pullover top Victim No acid phosphatase, a non-speciflc
fJ o ~ ( J J ..v ,·'VIe.. ck- k c...~ VV'. constituent of semen, was detected on the
l:l, .>4 "00 f-"f' 0
'io ~ ~ J.. .11. (J apparent bloody pullover top. A tape-lift of the
r ,. 1 " . r\~ 1· '( ~ sfi1rt was done and returned with the Item. If
CJ·<'\ .J e W1 ,. • ' •~ "' \\ P I S 1fiber analysis is needed contact this
laboratory.
An ap.e_arent bloodstain was determined to be
14 Jeans Victim offliJman origin. The DN~e is consistej
with the~ct. see DNA results. No acid
j5fi'Osj5flat8se. was detected on the jeans.
Apparent fecal matter was observed.
Victim ~ D_l!~s re.~Q.y~!!:2L"-~- ~S.-~il.t_
15 I ..
... ~ .J I! ~ t'"· ' ..-~ -(..
_jiiQ.Qdstaio· No acfd phosphatase was
detected. Head hair visually similar to the
victim's head hair standard was observed.
No acid phosphatase was detected. Apparer
16 ·Panty Victim fecal matter was observed .
---··--·"'
. .....
Hair strands
··-- ... ·-- .. -· -----------...,
Black purse
th~;:s;,ect's
,......-Three hairs visually similar to
23 pubic hair standard were recovered. Two of
the thr~e hairs were DNA tested (Hairs 1 and
2). The third hair was collected but not testae
) (Hair 3). One hair whose origin could not be
detennined was DNA tested (Hair 4). Two
hair fragments visually similar to victim's hea·
hair standard were observed and not
collected.·
...
The .DNA profiles from Hairs 1 and 4 are
consistent with the su·spect. See DNA result
"'\,_~-~N~-``s r e c o v e r e d -
No blood was detected. No significant trace
24 Phillips screwdriver Seat GMC PIU evidence was observed. ·
TX LP. JIV 790
No blood was detected. No significant trace
Flat head Dashboard GMC P/U
25
TX LP. JIV 790 evidenc~ was observed.
screwdriver
No blood was detected. No significant trace
Steak knife Aoorboard GMC P!U
26 evidence was observed.
TX L P. JIV 790
Four hairs visually similar to the suspect's
Hair strands Floorboard GMC P/U
27 head hair standard were observed. One hai
TX L P. JIV 790 was collected. If further analysis is needed
contact tl:lis laboratory. Six hairs visually
dissimilar to the vlctim and suspect's head E
pubic hair standards were observed and no
collected. Apparent animal hairs were
observed and not collected. Plant-like
J substance was observed and not collected.
P~n= 2,.r.f 5
12/12/01
Offense Date
Agency Case Number
· Laboratory Case Number 06/23/01
0113077
L3M- 48628
' RESULTS
·)rEM DESCRIPTION ORIGIN
13 Pullover top Victim No acid phosphatase, a non-speciflc
fJ o ~ ( J J ..v ,·'VIe.. ck- k c...~ VV'. constituent of semen, was detected on the
l:l, .>4 "00 f-"f' 0
'io ~ ~ J.. .11. (J apparent bloody pullover top. A tape-lift of the
r ,. 1 " . r\~ 1· '( ~ sfi1rt was done and returned with the Item. If
CJ·<'\ .J e W1 ,. • ' •~ "' \\ P I S 1fiber analysis is needed contact this
laboratory.
An ap.e_arent bloodstain was determined to be
14 Jeans Victim offliJman origin. The DN~e is consistej
with the~ct. see DNA results. No acid
j5fi'Osj5flat8se. was detected on the jeans.
Apparent fecal matter was observed.
Victim ~ D_l!~s re.~Q.y~!!:2L"-~- ~S.-~il.t_
15 I ..
... ~ .J I! ~ t'"· ' ..-~ -(..
_jiiQ.Qdstaio· No acfd phosphatase was
detected. Head hair visually similar to the
victim's head hair standard was observed.
No acid phosphatase was detected. Apparer
16 ·Panty Victim fecal matter was observed .
---··--·"'
. .....
Hair strands
··-- ... ·-- .. -· -----------...,
Black purse
th~;:s;,ect's
,......-Three hairs visually similar to
23 pubic hair standard were recovered. Two of
the thr~e hairs were DNA tested (Hairs 1 and
2). The third hair was collected but not testae
) (Hair 3). One hair whose origin could not be
detennined was DNA tested (Hair 4). Two
hair fragments visually similar to victim's hea·
hair standard were observed and not
collected.·
...
The .DNA profiles from Hairs 1 and 4 are
consistent with the su·spect. See DNA result
"'\,_~-~N~-``s r e c o v e r e d -
No blood was detected. No significant trace
24 Phillips screwdriver Seat GMC PIU evidence was observed. ·
TX LP. JIV 790
No blood was detected. No significant trace
Flat head Dashboard GMC P/U
25
TX LP. JIV 790 evidenc~ was observed.
screwdriver
No blood was detected. No significant trace
Steak knife Aoorboard GMC P!U
26 evidence was observed.
TX L P. JIV 790
Four hairs visually similar to the suspect's
Hair strands Floorboard GMC P/U
27 head hair standard were observed. One hai
TX L P. JIV 790 was collected. If further analysis is needed
contact tl:lis laboratory. Six hairs visually
dissimilar to the vlctim and suspect's head E
pubic hair standards were observed and no
collected. Apparent animal hairs were
observed and not collected. Plant-like
J substance was observed and not collected.
P~n= 2,.r.f 5
12/12/01
•
Laboratory C~se Number /\gene~' Cn~c Number Ottense Date
.
L3M- 48628 0113077 06/23/01
)
ITEM DESCRIPTION ORIGIN RESULTS
228 Two vaginal swabs Victim No semen was detected on the apparent
bloody vaginal swab.
22C .. Vaginal smear Victim No spermatozoa, a semen-specific
.
constituent, were observed .
220 Two rectal swabs Victim No semen was detected.
22E Rectal smear Victim No spermatozoa were observed.
22F Two oral swabs Victim No semen was detected on the apparent
bloody oral swabs .
.
22G Oral smear Victim No spermatozoa were observed on the
apparent bloody oral smear.
22H Head hair Victim Used as standard.
221 Head hair combing , Victim No apparent foreign hair was recovered.
. 22J Pubic hair Victim Used as standard.
22K' Pubic hair combing Victim ,No apparent foreign hair was recovered. Red
apparent fibers were observed.
22L Fingernail scrapings Victim Apparent blood was detected and was
t' '). determined to be of human origin. The victim
cannot be excluded as the· DNA contributor.
See DNA results.. The sus~ect Is excluded as
the contrl r. Halrs_y)_sua ly similar to the
'VJc m's head hair standard were observea anc
. norCollecie;;C-·:-··-· --·- ........ ~ ...... .
36 Evidence collection Suspect
kit
36A Purple top blood Suspect Used as known standard.
tube
368 Yellow top blood Suspect No analysis done.
tube
I
36C Head hairs Suspect Used as standard.
360 Pubic hairs Suspect Used as standard.·
DNA Results:
Three hairs from the victim's right buttock (#2); one hair from the victim's right sock (#3); two bloodstains
outside passenger door of Chevy P/U, Kansas L P. LXE 432 (#5), (#6); a bloodstain from the victim's jean
(#14); stain from the victim's bra (#15); blood from the victim's fingernail scrapings (#22L); three hairs from
the black purse (#23); one hair from the floorboard GMC P/U TX L P. JIV 790 (#28); three bloodstains fro
the seat cover GMC PIU TX LP. JIV (#29); hair from the jeans (#35); seat cover GMC P/U, TX L P. JIV
. 790; suspect's pullover shirt (#31), jeans (#32); stains from suspect's boots {#30A), (#306); victim's blood
. )#22A), and suspect's blood (#36A) were subjected to STR PCR DNA analysis and the following loci were
characterized: D3S1358, WVA, FGA. Amelogenin,.08S1179, D21S11, 018S51, 055818,0135317 and
075820. • .
' " ' - - - A -Z f: 1 ?/1 ?ln1
Laboratory Ca~e Number Agency Case Number Offense Date
•
L3M· 48628
I o t
0113077 06/23/01
, )he DNA profiles from the two bloodstains outside the door of Chevy P/U (#S':and #6), bloodstain from the
victim's jeans {#14) and one hair from the black purse (#23 hair 1), are consistent with the suspect, Gustavo
Mireles. Gustavo Mireles cannot be excluded as the contributor. The probabllity of selecting an unrelated
person at random who could be the source of this DNA profile is approximately 1 In 1,168, 000,000,000 for
Caucasians, 1 in 301,700,000,000,000 for Blacks and 1 in) 47,300,000,000 for Hispanics. The
appr~ximate world population is 6,000,000,000. -
The DNA profile from a second hair from the black purse (item #23 hair 4) is consistent with the DNA profile
of the suspect, Gustavo Mireles. Gustavo Mireles cannot-be excluded as the contributor at the loci
Amelogenin, 0851179, D21 S11, and D7S820. At these loci the probability of selecting an \.mrelated person
at random who co~ld be the source of this DNA profile is approximately 1 -In 34,230 for Caucasians, 1 in
e
1 1,900 for Blacks and 1 in 24,180 for Hispanics. The approximate world population is 6,000,000,000.
The DNA profiles obtained from the hair from the victim's sock {113) and blood from the victim's fingernail
scrapings (#22L) are consistent with the DNA profile of the victim, Mary Jane Robollar. Mary Jane Robollar
cannot be excluded as the contributor at the loci Amelogenin and 0851179. At these loci the probability of
selecting an unrelated person at random who could be the source of thls DNA profile is approximately 1 in
28 for Caucasians, 1 in 9 for Blacks and 1 in 14 for Hispanics. The approximate world population Is .
6,000,000,000. The suspect is excluded as the contributor of the hair from the victim's sock and blood from
the victim's fingernail scrapings. · _
·No bNA profile foreign to the suspect was obtained from the suspect's shirt (#31) or jeans {#.32).
No DNA profile was obtained from Items 112, #15, #23 hair 2, #28, #29, 1130A, #308 or-1135 .
. . ) The evidence _is being retained. Please n:'ake arrangements to pick it up as soon as possible •
.Ala. do~ .· ' .
Orlando Ochoa
Criminalist
Texas DPS McAllen Laboratory
~ t ...
12/12/01
f
~UHT 4 ·- TV Harllngen, 1X: UOUOlea U~A l=.ao UlWa llnpaci .i ~ & "'6"' ...........
--s--o
{ testing. What's to say that wasn't affected?•]
OPS meantime, maintains that they did not try to conceal the lab dosure. They have reviewed 40
cases so far, and have found no evidence of faulty testing. They must still scrutinize about 187
more.
Alex Madrigal, the lab chief prlmartly r:esponslble for DNA testing has since been suspended with
pay.
t.'WollLDNow
All content C Copyrtght 2000 • 2004 WortdNow and KGBT. All Rights Reserved.
For more Information on this lite, plene read our Prtvacy f?o!lcy and Tenns or Service.
•
http://www.team4news.com/globallstory.up?s-1716313&CllentType-Printable 3/17/04
Review: 40 crime lab cases accurate Page 1 oR
I
Publication: Freedom- The Monitor; Date: Mar 17, 2004; Section: Front Page; Page:-1 ~'l''*,
Review: 40 crime lab cases accurate
By SARAH OVASKA and RYAN GABRIELSON Monitor Staff Writers sovaska@themonitor.com
rgabrielson@themonltor .com
..
McALLEN a€" A McAllen-based DNA crime lab found no problems
in a re-examination of 40 cases despite inconsistencies in
maintaining police evidence that caused the laba€™s closure for
three months last summer.
The Texas Department of Public Safety Criminal Laboratory,
I .
located in McAllen, reviewed 40 DNA samples and found no
erroneous results or mistakes. However, a much larger review is
currently under way, with 187 DNA samples scheduled for re-
examination and retesting, according to a DPS representative.
The lab analyzes DNA evidence, found in blood, saliva and -~,
semen, for a number of police agencies in the area.
The McAllen crime lab was shut down from June 16 to Sept. 23,
2003, with no notice given to local prosecutors, police agencies c
defense attorneys. The evidence submitted during that time was
disp·ersed throughout the agenciesa€™ other crime labs. After
staff was retrained this summer, the lab is back up and running, ·
according to a press release from DPS.
"We dona€™t know exactly what the issue was with the lab,"
said Victor Rodriguez, the McAllen police chief. "Wea€™ve not
seen any unusual changes in the response time ...
'
With response times up to six months for some tests, Rodrigue:
said his officers and investigators continued to drop off evidence
at the crime lab across the street from the police station, and
were unaware that the laba€™s operations had been shut down
0
Review: 40 crime lab cases accurate Page 2 of4
i
Rodriguez said his department might now bring DNA evidence to
j a private company.
eir childrer,
vvill statistically be expected to look l;ke this: 25%
Deo"y(;t;onuclc•c <-lCid iDI\!A/;s somet1mes called BB (brown eyest 25% Bb (brovvn eyesl. 25% bB
a genetrc blueprint because it conta1ns all of (brown eyes). and 25% bb (blue eyes). Each of
the 1nstruct1ons that determine an individual's these four profiles reflects the d1fferent possible
genetic characteristics. A technical explanation of combinations given the genet;c charactenstics of
DNA can be found at http://www.genome.gov/ the original DNA of dad and mom.
glossary/index.cfm ?id=48.
What is DNA made f.)f?
Where does nuclear DNA come from?
DNA is found in the cells of all living organisms.
Our parents. All human cells with a nucle,_!S, except red blood cells. DNA is actually a com-
except gamete cells- egg and sperm cells bination- called a DNA sequence- of four
- have DNA cpntaining the full complement bases: adenine, cytosine, guanine and thymine.
of 46 chromosomes. Each egg and sperm commonly referred to as A. C. G and T (see
cell carries half of the DNA complement
(23 chromosomes). H!MCitPEI .d& X
Figure 1: NuCI: otide Base Pairs
Mixing of genetic markers occurs across the
DNA molecule during the formation of sperm
cells and egg cells. Because of this mixing pro-
cess. the DNA in all sperm cells from one man
or all egg cells from one woman are not equal
halves "split down the middle." Rather, each
-
genetic characteristic has a 50% chance of
presenting itself in any given egg or sperm. In
humans, very few observable traits are due to
inheritance of only one gene. Most observable
characteristics are the result of the products
-
of multiple genes interacting. Although actual
-
inheritance of eye color is complex, the follow-
ing example simplifies the concept of inheritance
of eye color for illustrative purposes. Consider
a male with brown eyes who inherited a brown
eye gene IBl from one parent and a blue eye
gene (bl from the other. His "eye genes" will be
depicted by geneticists as Bb. (Remember this
from high school biology?) Half of his sperm cells
will have the B (brown) gene, and half will have
-
the b !blue) gene. Simplistically, the color of his
children's eyes will be dictated by two factors:
Source Christme Funk. Working Group MeMber
what gene he gives them and what gene their
mother gives them. If the mother likewise has
r. 3 _r
CHAP T E R 2
Frgure 1 ). These :u.:r :!Yot".'i, 1n varying combrna-
tions. r~lake up yeasl. bananas. chickens. rice and
rtr 1w u· nm··...,...•·Mr:mms
Figure 2: The DNA Double Helix
. -
peop!e as well as cl! other living organisms
The principle of sequence formation is not unlike
the principle of the English language. The 26 let-
ters in the alphabet (or the four bases in a DNA
sequer,cel can be combmed in various ways to
make different vvords. "The" and "theory" have
three 1etters 1n common -both in the specrfrc
letters used and the order of the first three let- ______.:....:.:.
ters. Yet the word "the" has no application to __J_....JI._
Double C G
the w?rd .. theory ... heli~ ( · .,_.
Likew1se. in music. there are 12 'elements: seven
notes (A. B. C. D. E. F and G) an9 five sharps or
\
flats. Playing these notes in different combina-
tions creates "The Flight of the tumblebee ...
Pachelbel's ··canon in D" and th theme song to
"Charlie Brown." I ~-·
Source: John Butler. National Institute of Standards
With DNA. instead of 26 or 12 elkments. there and Technology.
are the four bases mentioned above. Just as the
combination of notes dictates what the music
sounds like and the combination of letters dic-
tates the word. the combination ·of As. Cs. Gs Bases pair up to form the "steps" of the DNA
and Ts dictates tl:le type of livingithing. molecule. The sides of the DNA molecule are
made up of sugar and phosphate chains.
The DNA of all human beings is actually nearly
identical. Approximately 99.9% of the sequence Our interest is in the bases themselves. Imagine
of As Cs Gs and Ts is in the exact same order. straightening out the DNA molecule to make a
This dete.rmines common humarn features such ladder rather than a spiral staircase. Each step
as two eyes. ears on both sides ~f the head. of the ladder is a single base pair. As indicated
and long bones in forearms and alves. Although above. there are about 3.2 billion base pairs
looking at these parts of the ON molecule. in the DNA molecules comprising each set of
might help us determine it is hu an DNA- human chromosomes.
rather than. say. banana DNA- it isn't helpful
in distinguishing one human fro another. Each base pair consists of either an A matched
with a T a T matched with an A a C matched
There are however. places on the human DNA with a G·. or a G matched with a C. That's it.
molecule ·that are different. Of the approximately Those are the only .four combinations of base
3.2 billion base pa;rs in the human genome. a pairs that exist. Bases that pair with each other
forensic DNA-typing test looks at about 3 thou- are called complementary bases.
sand base pairs where there are:known differ-
ences between people. These base pairs. about 3.2 billion strong, repre-
sent a whole DNA molecule or what is referred
to as nuclear DNA (nONA). All cells in the body
What is a base pair? contain DNA. except for red blood cells. which
I
do not have a nucleus. DNA in blood comes from
Picture the DNA molecule as a ~piral staircase
G
(see Figure 2). The bases A. C. and T behave in the nuclei of white blood cells.
a precictable pattern of matching and becoming
base pairs. A base pair is simplyia pair of bases.
I
t I
Ul~i-1 bi-1~10' I HE SCIENCE OF DNA
• CWUJ
Figure 3: DNA in the Cell
Chromosome
~//!'·
Double-stranded
DNA molecule
·~·
;``
Source: John Butler. National Institute of Standards and Tecnnology
-0 was:asaa:asuaw:I&OO
Bacl< to high school biology coding for eye cplor or the potential predispo-
sition toward a genetically inherited disease)'
Picture a chicken egg. An egg is like a cell. -except for armelogenin, which is used in
except that an egg's outer shell is smoother and forensic analysi for gender differentiation.
more symmetrical than a cell's outer shell or The areas at wh ch forensic analysts look are
membrane. The yolk of the egg is comparable to always found in the same spots on the same
the nucleus of a cell. The DNA is located inside chromosomes. ach specific location is called a
the nucleus (see Figure 3). The DNA in a single locus (pronounc d "LOW-cuss"). The forensic
cell is over 6 feet long and is bunched up inside science commu I ity typically uses a minimum
·the nucleus of each of our nucleated C"?lls. In of 13 genetic lo~i (plural for locus. pronounced
order for DNA analysts to be able to conduct test- "LOW-sigh"), referred to as the 13 core COOlS
ing on DNA. they must remove the DNA from the (Combined ON~ Index System) loci. This enables
other cellular material that is present. using a pro- · laboratories to s.earch profiles against other pro-
cess called DNA extraction or DNA isolation. files already in the COOlS databank (although
some laboratori~s test more than the 13 core
Human traits are determined by the particular COOlS loci). Thrbughout this training guide, refer-
order of the bases. The first thing the order dic- ences will be made to the 13 core CODIS loci.
tates is that we are human. Second. the order
of the base pairs dictates all the physical traits These core COOlS loci are CSF 1PO. D3S 1358.
we are born with (such as eye color. face shape, 05S818, 07S820, 08S1179. 013S3J7.D16S539.
etc.). In addition, there are base pairs that do D18S51, 021 S1i1. FGA. TH01. TPOX, and VWA
not "code" for anything and pairs whose coding (TPOX is pronoJnced "T-Pox ... VWA is pro-
functions are not yet known. nounced V.W.A. Likewise. FGA and CSF are sim-
ply pronounced py their individual letters. THO 1
The DNA looked at in forensic science is not is pronounced "~ho One." with a hard "th. ").
currently known to have any function (such.as
i
'
. . .. . . ' ~
lj@ijj IJ~tifi-K-~J!~'i&iie·etK4kn#~:.«``~w.ieoW&``;ilw&¥``:
INITIATIVE
CHAPTER 2
;....;.J._..~·····"~>M-::~-,;-.``~
For the "D" loc1. the number following the D for Cl pattern at a specific location on the 11th
ivvh1ch s1ands for DNA! tnd1cates the chrome- chromosome. The pattern looks like this AATG
some on which each locus is found. 021 S11. V'!e know that everybody has the same AA TG
for example, is a complete name. which lawyers sequence on the DNA molecule at THO 1 Tr1e
refer to as 021 tor 1dent1ficat1on. Here "21" difference between individuals is how many
refers to the 21st chromosome. S corresponds times the pattern AATG is repeated on both of
10 the v;ord ··singie'' -meaning there 1S oniy their 11th chromosomes. Some people have a
one copy of !h1sgenet1c marker in the huma'l pattern of the four bases AATG repeated five
genome. and the number following the S refers times. and their DNA type, or allele. for that copy
to \.Yhere tillS lOCUS rS IOUild on the 21St of the;r 11th chrOmo.some would look iike thts tf
ct1romosome. it was sequenced by bases AA TGAATGAAT G
AATGAATG. Other people. however. have otner
Each of the 13 loci was chosen because of rts alleles -and the person with five repeats on
high degree of po!vn~orp!·,ism, meaning that one of their 11th chromosomes may have a
several different possible genetiy types exist for completely different repeat on their other 11th
each locus. By examining and identifying these chromosome. For example. the sequence AATG
differences, scientists in the laboratory can dif- AATGAATGAATGAATGAATGAATGAATGAATG
ferentiate between people. To illustrate, the loca- shows the pattern of four base pairs repeating
tions on the DNA molecule that dictate for .the .nine times. This allele type is a 9. If one addition-
nose to be in the center of the face are essen- al four-base-pair pattern were repeated, the allele
tially ident1cal among us all. On tre other hand, type would be a 10.
the genes that dictate the shape; of one's nose
are poiyr;,orphic. All you have to 'do is look at 10 So what's a 9.3? Although most of the time
people to know that the DNA we are looking at involves a repeating
pattern of four base pairs. sometimes- 9.3 at
At each core COOlS locus. the possible types TH01. for example- this is not the case. We
one can have are labeled by nuniber. At TH01. already know that. at this locus. nine repeats of
for example. the types that havei been observed AATG constitute a 9 allele type and 10 repeats
are 5. 6, 7, 8, 9, 9.3. 10 and 11. tenerally, each make a 10 allele type. A 9.3 reflects nine repeats
person onthe planet has two of hese: one from of AATG and an additional three bases minus one
mom and one from dad. These t pes are referred of the As. ATG. If there was an additional A in the
to as alleles (pronounced "uh-LEELS"). If the two same predictable pattern, we'd call it a 10. but
alleles m a profile are identical (in other words because some people have ATG in addition to
the person received a 5 from mdm and a 5 fr;m nine repeats of AATG. an allele type of 9.3 exists.
I
dad), they are homozygous. If the two alleles are
different, say, a 5 from mom and an 8 from dad, Not every locus has the repeating pattern of
they are heterozygous at that locus. Rare muta- AATG, but 'every STR locus does have a repeat-
tions can and do occur (see. for example, www. ing pattern of base pairs that we look for to iden-
cstl. nist.gov/biotech/strbase/). tify the allele types for that particular locus.
~:lmrt tandem repeats (STRs) How are loci of interest found?
The numbers identifying the alteies for the core Let's continue to use TH01 as an example. We
CODIS know it is on the 11th chromosome. and we
. . loci reflect the number o1' repeated base
pair seQuences at that locus. Re81ember. the know where it is on the chromosome. In the
locus is polymorphic- it varies trom person to iab. DNA test kit reagents .are combined with
person. The way it varies is in it~ length. A per- a portion of the DNA obtained from a sample.
son who has a type 5 has a much shorter length The reagents have several jobs. One is locat1ng
of DNA at that locus than a persbn who has a the areas of interest (the loci) that we wish to
type 10. ! test. Pnmers run along the strands of the DNA
I
molecule, looking for the loci we care about. The
For example. at TH01. we are not just look- primers then identify the DNA strand immedi-
Ing at the 11th chromosome; we are looking ately before and ·immediately after the region of
-``~f!!~1:T'"'````~!f;k!%9'\Y.#.f:}iit"Mk¥~;:"````fl~$. ~)~'ft.~
(p
DNA BASICS: TRIAL ISSUES
,
0 And 11 doesn't teii us when that happened. analyst should concede these po1nts easily; they
where it happened or how it happened; isn't may be worth exploring on cross-exam1nat1on
that true? 1f the defense theory suggests contamination.
A. Yes. transfer or the innocent presence of the defen-
dant at the sce~e at a different point in time.
FOR CASES INVOLVING THE INNOCENT
DEPOSIT OF DNA: Many labs do n~t attempt to distinguish between
vag1nal and skin cells. A scientist may be able
0. The DNA :est results can't tell when the to obtain a DNA profile but not be able to testify
DNA was left; 1s that correct 7 that the source definitely was vaginal fluid or
A. Correct. skm. Contrast tf\is with the confirmatory tests for
semen. Most of the time. scientists can conf1rm
' 0 The DNA test results can't tell you the time that the DNA profile came from sperm cells.
it was left; is that correct?
A. Correct. The defendant's DNA may have come into con-
tact with an item of evidence through contamina-
0. The DNA test results can't tell you the date tion. As a preliminary matter. counsel should look
it was left; is that correct? carefully at chain-of-custody logs for eve.ry step
A. Correct. of the process ~ from the crime scene to the
laboratory to th.e analyst's workstation, and any
other movement or handling in between (includ-
0. The DNA test results can't tell you whether it
ing any time eviidence was removed from stor-
was deposited consensually; is that correct?
age and then r~turned). If the defendant's known
A. Correct.
DNA sample was handled on the same day as.
and in particula~ before. an item of evidence ~
If defense theory favors opposing the govern-
wh1ch the labo~atory's protocols may prohibit
ment's claims regarding the DNA evidence
~there may be reason to think that the defen-
-that is. if the defense theory is that the d-efen-
dant's DNA wa~ transferred to the evidence
dant's DNA is not where the prosecution says
through misha~dling. If the defense theory is that
it is - then cross-examination of the govern- the DNA was contaminated, counsel should pro-
ment witnesses may be the primary strategy ceed with caution and be prepared· to elicit evi-
for undermining the evidence and showing the
dence in support, through either the DNA analyst
jury why they should discount it. The goal of the or others who ¢ame in contact with the evidence
adversarial cross-examination should not be to during the chain of custody.
spar vyith or outwit the expert but. instead, to
systematically highlight the shortcomings of the Under either a ~ransfer or contamination theory.
procedures that led to the DNA report asserting counsel will want to find a compelling way to
that, for example, the defendant's DNA profile illustrate to jurors how little DNA is required
cannot be excluded as admissible evidence. for it to register on the analyst's instrument.
Depending on Which DNA testing kit is used. one
nanogram or l!s is considered to be an optimal
Time, place, transfer and contamination amount of DN for testing. Defense attorney
In most cases- except some sexua! assault Bob Blasier fa . ously illustrated this concept:
cases - analysts cannot say exactly when or Hold up a pack~t of sugar and note that it con-
under what circumstances DNA came into con- tains approximftely 1 gram of sugar. Assume the
tact with a piece of evidence. DNA at a crime ~acket. contain~ 1,000 individual granules. Con-
scene may have been left there days, weeks or firm w1th the ahalyst that given this premise. to
months before the crime. or after the crime was obtain a nanogram of sugar they would need to
committed. A person or object may have trans- divide a single crystal by 1,000, and then divide
ferred the DNA there. If the defendant's DNA is one of those pieces by 1,000, and then again.
present at the crime scene oron an object recov- Finally, the expert will agree, you are at 1 nano-
ered from the crime scene. this does not mean gram, or less than the eye can see- and that
with any certainty that he or she was present at amount, or less. is all that is needed for a per-
the crime scene at any time. The government son's DNA profile to appear in a test result. That
CHAPTER 8
·" ·-~iJi.'iftfs~iU+'M*WZ,
ar:~:::>•,,r.T of DNA n11ght be transferred by a sma!! w1th a trad,tJonal rardom match statiStiCal ca1cu·
nL:":ce' of sk1n eel's that came 1n contact wi:h Jation can address drrect!y; however. some labo-
a person or ObJeCt. which later came in con:act ratones now use source attr10Ut10n staternen~s 1n
wtr. another object If counsel picks up a pen their DNA reports. A source attribution statement
1n the courtroom. the expert will probably agree is used to definitively state that. !o a reasonable
that there IS a fair chance that co.unsel's DNA IS degree of scientific certainty. this DNA profile
now on that pen by way of shed ~kin cells. ong1nated from this person. or the1r Jden:1ca!
tv.:rn Source attribution teStlmOrty must actL.al!y
In sr,ort. miniscule amounts of DNA can be trar,s- re!y on demonstration via a statist1cal calculation
ferred easdy. Th1s line of cross-examination can i;yp1ca!ly 1n the case notes) that the obta,ned
be effect;ve under a theory of simple transfer or Df~A profile meets or exceeds the value set by
contam1nat10n. Factors such as evidence packag- the lab 1n order to make such a statement. The
ing, handling and cham of custody are critiCal to defense's expert should be able to assist counsel
developing the facts necessary to support su::h a in locating the statistical data and publications on
theory wh1ch the lab relied to reach ItS conclusion and
design appropriate challenge questions.
Statistics
coth~e_!i~tions~l"l.f(~07
Unless there is an opposing legal ruling, to be
in compliance with the current SWGDAM Guide- Another potential area for cross-examination is
lines, a DNA analyst should be p~esenting a sta- that the inculpatory claims are being made on
tistic to charactenze the significapce of a match the basis of a finite number of genetic locations
involving DNA found on an item d>f evidence and -most typically, ,the=l3-c·ore·CODTS~Ioci~fie,15
someone involved with the case.! In non-mixture STR loci in the ldentitilere. lss-examination 10 or more of these areas of DNA in order to be
should focus on the analyst's statistical claims. able to distinguish between people. even those
It is important to dispel what is khown as the who are related (with the exception of identical
prosecutor's fallacy, which is a cCDmmon misin- twins. who will have the same autosomal STR
terpretation of the random mate~ probability sta- DNA profiles). The prosecution's expert should
tistic. If the probability that a ran~omly selected concede that other genetic loci developed for
individual would match the DNA profile found at forensic identification were not used in the cur-
A . ---- --~ _.:..._
the scene is 1 in 1 trillion, that does not mean , rent case. l~?!fenoantw~"ll e--=``~u~ed..:E.Lil.l55
that there is a 1-in-1-trillion chande that the DNA ~:one``f_::!b_ose-ot``~--l~catio~!Jtle~_e``ert-~_9.~d. _. ,
came from someone other than the defendant. ~h_ave·to agr~(lt tb_e._Q``m(,!~Lf:la_vEl_::_.ongtna_t~cj.)
It means that if a person is picked at random out c)rornaO..Q:tnet_p_e;~ - however. the analyst did
of the general population. the probability that he not test those other locations. Defense counsel
or. she will match the detected profile is 1 in 1 should be aware that forensic scientists within
trill1on. a laboratory use whichever commercial test
kit their laboratory protocols specify. Although
The question of "What is the probability that the there are a number of kits available that test for
evidence DNA profile came from the defendant additional genetic markers beyond the 13 core
is not one that DNA testing thatis supported CODIS loci. not all labs use the same kits.
!~·``:Y-'``·~:````:r.-~!``·~1~-rF'~i'F``y~'!'J~f>~·~y``·``~·``::.~r~"flTTF·':~:ri:' 1t}
• INITIITIVf
Section 1: Statute of Umitat;ons which DNA evidence exists and has been
preserved. 6
Defenses
Statute of limitations legislation serves a number
of purposes: Section 2: John Doe V\farrants
Typically, the period of limitations is tolled when
[T)he applicable statute of limitations ... is ...
a charging document with some information
the primary guarantee against bringing over-
about the perpetrator's identity has been prop-
ly stale criminal charges. Such statutes rep-
erly filed. "John Doe" warrants- warrants
resent legislative assessments of relative
without a known name but with some identifying
interests of the [s)tate and the defendant in
information - have begun to be used, particu-
administering and receiving justice; they are
larly in DNA cases.
made for the repose of society and the pro-
tection of those who may [during the limita-
The first issue i~ whether John Doe DNA war-
tion) ... have lost their means ~f defence.,
rants satisfy the: "particularity" requirement of
the Fourth Amehdment or parallel provisions ·
From the defendant's vantage point. there
of state constitutions. Generic descriptions of
is particular "concern that the passage of
suspects generally do not meet this standard.'
time has eroded memories or made wit-
However, courts that have considered the issue
nesses or other evidence unavailable. " 2
to date have found that John Doe warrants with
a numeric DNA profile as the identifier meet the
The following principles of law are not in dispute:
Fourth Amendment standard. 8
ll Once the period for commencing prosecution
A separate argument contends that a warrant
has expired, it cannot be retroactively extend-
should give notice to the perpetrator so that he ·.
·- -·..
ed by new legislation. 3
or she can gather evidence and prepare to meet
ii This is true even in cases where DNA evi- the charges. Clearly, a DNA-profile warrant does
dence conclusively establishes identity. 4 not give notice to the average citizen. H~;vx~v~r.
the one court to consider this claim tQ.,.cl~t~;·has
If! Conversely, when a legislature extends the
rejected it. 9 This type of claim yy().uJ~:aP,P)y;'9nly in
statute of limitations for a particular criminal
states where the statute o.1~,\iJ1\``~t.~c;).Q``r``:.been
act before it expires. the extended period
extended but n$t elimi~e:p``.~.~:r~iW9.:U1d be
applies and no statute of limitations defense
no claim of entillerQJ~.qf``·~iji~!!.ce in ~tates
applies. 5
where the legislature has .abolishe~La part1cular
The advent and success of using DNA to prove period for comfencing prosecution.
identity - particularly in sex crimes with biologi-
cal material -' have led to legislation changing
the time period in which specified crimes may be
prosecuted. In some instances. the time period
has been lengthened or eliminated entirely. An Regardless of whether the limitations period has
extended period has been granted in cases in been extended or abolished, delayed prosecution
may raise due process concerns if the right to
CHAPTER 9
·:..:.::.:.·~"~'"l¥;n-;=t.~ll.'li9Jllilli!IIIG"&F
present a defense has been severely compro- and compare qualifying DNA profiles on the
mised. The U.S. Supreme Court has explained national level. Profiles deemed "allowable" by
· that the Fifth Amendment requites the dismissal NDIS are then searched against profiles from
of an indictment- even if it is ~rought within all other SDIS participating labs accepted at
the statute of limitations - if the defendant can the national level. As of August 2010. NDIS
prove that the government's delay was a delib- had more than 8.7 million offender profiles
erate device to gain an advantage over him and and more than 330,000 casework profiles. :4
that it caused him actual prejudice in presenting
Ill SDIS- the St2~e Df~A .ndex Systern-
his defense. ' 0
allows laboratories within each state to
exchange DNA profiles. Each state has a
The difficulty in applying this test is twofold.
single statewide databank- SDIS. The FBI
First. it requires proof of the prosecution's ill
serves as the SDIS lab for the District of
motive in delaying, unless state law is more solic-
Columbia. The U.S. Army Crime Lab is also an
itous.'' Second, the prejudice must be substan-
SDIS lab. Each SDIS Administrator acts as the
tial.12 Nonetheless. it is an issue that warrants
gatekeeper for determining the acceptability,
examination in any case where there is a signifi-
based on that state's guidelines. of profiles
cant gap between commission of the offense
submitted by each of the state's LDIS labs.
and commencement of actual prosecution.
Profiles accepted by the SDIS Administrator
can be searched against those entered by
1
other LDIS labs in the same state. Profiles
Section 4: The Databan1 Hit Cas.e accepted by an SDIS lab will also be searched
against the convicted offender and arrestee
(when applicable) profiles entered by the SDIS
Overview of the CO DIS DNA ,atabanks
I
lab. SDIS cust~dians can share their data with
In 1990, the FBI Laboratory began a pilot project the national CO"DIS community by forwarding
called COD IS, creating proprietary software that it for consideration for inclusion in NDIS.
enabled and continues to enable federal, state m LOIS- the Local DNA Index System- is
and local laboratories to electronically upload, the databank where regional, county and
exchange and compare DNA profiles. · municipal labs within a state enter their pro-
files. Bench-level DNA examiners, or the lab's
The Federal DNA ldentificationAct was en.acted designee, use ·CO DIS software to enter DNA
as part of the Violent Crime Conlrol and Law evidence profiles into LOIS, where they are
Enforcement Act of 1995 {Public Law No. T03- searched against other profiles that have been
322). This law authorized the FBI to establish a entered previously by their lab. Local labs can
national DNA index for Jaw.-enfo~cement. Since then forward their profiles to the state level
then, federal and state governments have invest- for consideration for upload. Local labs must
ed significant resources toward ~eve loping and
1
go through their SDIS lab to get profiles into
maintaining a national databank ystem. NDIS the national level of CODIS.
became fully operational in Octo er 1998.
The three-tiered system allows state and local
'
CODIS users predominantly access two indexes: agencies to operate their individual databases
the forensic index and the offender index.' 3 The within the confines of state laws. which vary by
forensic index contains DNA profiles from crime jurisdiction. The exchange of information within
scene evidence. The offender index contains this secure system is controlled by and strictly
DNA profiles of individ.uals who have been con- limited to law enforcement.
victed of offenses defined by state or federal
law. The FBI maintains the COOlS databank. COOlS allows for the entry of qualifying DNA
profiles into indexes based on specimen catego-
CODIS has three levels: ries. The most commonly used specimen catego-
ries are as follows:
!!!! NDIS- the National DI\JA Index System- is
the highest level in the COOlS hierarchy. It • Convicted offender: DNA profiles of people
enables participating labs to upload, exchange convicted of a crime.
/
0 El AYE 0 P R 0 SEC U T tONS AN 0 C 0 l 0 CASE H
fi!!t!'!?.f+Jtmt~;-``W.:!Aflt'...,.J/IWtF!iJIItiMi1Wr:¥.``1!i!.'iit&.,OJ.i~4:i!"£!M4i.A.OI~J.]:i
1r Forensic: DNA profiles developed from crime Forensic DNA databanks were originally limited
scene evidence. to samples only from adults convicted of felony
sex offenses and a few other violent crimes.
£' Arrestee: DNA prof.iles of arrested persons
Databanks have: now been expanded to include
(if state law permits the collection of arrestee
many other offenses as well as other classes of
samples).
offenders. All 59
states. the District of Columbia.
c: Missing persons: DNA profiles from missing and all federal jurisdictions now require certain
persons- either known or deduced to be classes of convicted offenders to prov1de a bio- ·
known profiles from missing persons. logical sample for entry into a DNA database.
Each jurisdiction's statute determines whether a
E Unidentified humans: DNA profiles from
person convicted of an offense will be required
recovered unidentified human remains (UHR)
to submit a biological sample for inclusion in a
as well as from humans who are unable or
DNA database. (For more information, see http://
unwilling to identify themselves.
forenslc.dna.gov/module9/1/.) The trend is clearly
El Biological relatives of missing persons: moving toward including larger categories of
DNA profiles voluntarily contributed by rela- people, including those with misdemeanor con-
tives of missing persons. victions, juveniles and arrestees. 17
Other databank indexes exist (such as those that
CODIS contains limited information, s~ch as a
contain RFLP profiles). and the ability to enter
specimen identifier, the sponsoring laboratory's
mtDNA and Y-STR data has been added for cer-
identifier, the initials or name of DNA personnel
tain specimen indexes. Federal and state laws
ass~ciated with the analysis, and the actual DNA
govern access. disclosure, compatibility, expunc- 1
~rof1l~: Depen~ng on lab protocol, the specimen
tion and penalties for unauthorized disclosure of
1dent1f1er of. pro iles submitted to the forensic
information contained within CODIS. 1s
(ca.sework) 1nd x may identify the type of bodily
flu1d, whether t~e source is known, and/or
The DNA Identification Act of 1994. which estab-
whether the entered profile was deduced from
lished NDIS. also created the DNA Advisory
results of mixed-sample DNA typing. CODIS
. Board (DAB) to develop standards for quality
does not store criminal history information or the
assurance. The board's work culminated with
names of convicted offenders/arrestees.
the promulgation of the first set of standards
document for the forensic DNA casework analy-
When CODIS software recognizes the same
SIS community, which became effective national-
DNA profile in the forensic and offender indexes.
ly on October 1; 1998, issued by the FBI director.
it identifies the two profiles as a match. These
These standards superseded the existing
matches are commonly referred to as "hits."
TWGDAM Guidelines that had previously been
Qualified personnel from both involved labs then
used as the guiding document by forensic DNA
analyze the reported match to either validate or
labs. A second set of standards for convicted
refute it. This critical review of all matches is
offender databasing laboratories. which became
standard operating procedure and is used to
effective on April 1, 1999, was issued by the
ensure that a rriatch produced by a search of the
DAB before the group disbanded on March 9,
databank "mak_rs sense." With a hit generated
2000. Currently, the responsibility for maintaining
by a search of ~ODIS that involves a 13-loci ·
the Quality Assurance Standards (QASJ docu-
match betwee~ an offender profile and ·a single-
ments falls to the director of the FBI. Recom-
source evidenci3 profile, the review process is
mendations for updates are provided by the
fairly straightfotward. Once both labs have
Scientific Working Group on DNA Analysis Meth-
agreed that the1profiles do indeed match, the
ods (SWGDAM). 16
convicted offender lab will then research which
offender corresponds to the specimen identifier
To participate in NDIS, states must sign a Memo-
in its system and will pull the corresponding sam-
randum of Understanding verifying that the sub-
ple and rerun it to confirm that the archived sam-
mitting laboratory is in compliance with the FBI's
ple bearing the offender's name generates the
quality assurance standards.
same profile as the one entered into CODIS for
that individual. This quality check is to ensure
CHAPTER 9
that sample results were not inadvertently investigations and share leads. even across mul-
switched during analysis or data entry. Once the tiple jurisdictions.
profile has been confirmed in this manner, the
convicted offender lab will subsequently provide
basic information regarding the offender,
I
such as Introduction: The hypothetical databank
name,.
available Department of Corrections
I
infor- hit case
mat1on, and recorded date of birth, race and sex
to the casework lab. The casework sample lab A woman alleges that she was raped. but she
will then issue a hit report to the investigating cannot make an identification and the police do
agency to notify it of the databank match. This not have a suspect. Semen found in her vagina is
report typically requests submission of a newly typed for a DNA profile. and the profile is devel-
obtained buccal sample from the identified oped and entered into the state's DNA databank.
offender to the casework lab as another quality It is compared with the profiles in the convicted
check to ensure that a DNA profile obtained from offender databank, and there is a match with the
the offender does indeed match the profile gen- defendant. The police use this hit as probable
erated for the evidence profile. This report should cause to ultimately take the client's DNA sample,
also specify that the hit information is only which is then tested and compared with the evi-
intended to provide potential investigative leads dence sample. This may result in prosecution but
that must be pursued by the investigating agen- could result in a delayed prosecution when the
cy. If subsequent investigation supports that the following occurs:
COOlS match is meaningful, this' can be used as
the basis for probable cause to 1tain the IIi The testing by the lab is conducted well after
requested biological sample fro the offender. the alleged incident occurs.
a The testing is conducted and the databank
There are times, however, when the DNA profile
match occurs, but the suspect is not available
generated from crime scene evidence that has
to provide a sample for direct comparison with
been entered into CODIS is a mixture of more
the evidence profile until later.
than one person's DNA. In those cases, the ana-
lysts will still critically compare the profiles to see 11 The databank hit occurs in reasonably close
if the offender's profile is included as part of the proximity to the alleged incident; however, it
~
mixed DNA casework profile. It is not uncom- takes a while for the government to build a
mon in these circumstances for the analysts case for prosecution.
to dismiss a match proposed by COOlS as not
11 The databank hit occurs in reasonably close
"making sense" on the basis of analytical data.
proximity to the alleged incident; however,
When this occurs, unless agency policy states }
other pending prosecutions against the defen-
otherwise, no hit report will be issued by the
dant delay ability of the prosecution to initiate
casework lab; however, all information regarding
the case at hand.
li. the comparison and disposition df the hit will be
maintained in the corresponding case file. When This section covers some of the concerns and
the labs determine. on the basis~:f their review, opportunities for defense attorneys dealing with
that the analytical data support t e hit, a similar these increasingly common "cold hit" cases.
process to the one noted above s followed by
the offender lab to research, con irm and share
offender information with the ca$ework lab. How to approach a COD IS or cold hit case:
The basics
When a DNA profile in the forensic index match-
es another profile in the forensic index, crime A "cold hit" case is generally like a "normal"
scenes can be linked together. COOlS hits involv- DNA case, except that the government may have
ing two casework profiles will still go through a little to go on, other than the cold hit. Defense
verification process. If both labs are in agreement counsel can still use the typical defense theories
that the profiles match, both casework labs will that do not involve challenging the DNA evi-
typically provide hit reports to the corresponding dence, such as consent, or fabrication or plant-
investigating agencies. These hits enable inves- ing of evidence. Of course, sometimes such a
tigators to identify repeat offend~rs. coordinate defense is not the best option. In those cases.