Solis-Gonzalez, Luis ( 2015 )

~ "-· RECEIVED IN •
.;,
~ .WR-82,831-01
COURT OF CRIMINAL APPEALS
COURT OF CRIMINALAPPEALS AUSTIN, TEXAS
Transmitted 3/11/2015 4:50:31 PM
March 12,2015 Accepted 3/12/2015 9:04:46 AM
' ABELACOSTA
NO. WR-82,831-01 CLERK
ABELACOSTA,CLERK
IN THE
COURT OF CRIMINAL APPEALS FILED IN
OF TEXAS COURT OF CRIMINAL APPEALS
JUL 29 2G15
IN RE LUIS SOLIS-GONZALEZ Abel Acostc;t. Clerk
THE STATE'S (REAL PARTY IN INTEREST) RESPONSE
TO RELATOR'S PETITION FOR WRIT OF MANDAMUS
TRIAL COURT CAUSE NUMBER 20120D04103
IN THE 243rd DISTRICT COURT OF EL PASO COUNTY, TEXAS
JAIME ESPARZA
· DISTRICT ATTORNFfKis document contains some
34th JUDICIAL DIS``l' ti:at are of poor quality
at the time of imaging.
LILY STROUD
ASST. DISTRICT ATTORNEY .
DISTRICT ATTORNEY'S OFFICE
201 EL PASO COUNTY COURTHOUSE
500 E. SAN ANTONIO
EL PASO, TEXAS 79901
(915) 546-2059 ext. 3769
FAX (915) 533-5520
EMAIL lstroud@epcounty.com
SBN 24046929
ATTORNEYS FOR.THE STATE
The State requests oral argument.
IEJLJECftONIIC
UCC(Q)Im
• •
IDENTITY OF PARTIES AND COUNSEL
Relator - Luis So lis-Gonzalez, represented in this mandamus proceeding
and underlying criminal case by Joe A. Spencer, Jr., 1009 Montana Avenue, El
Paso, Texas 79902, and Joshua C. Spencer, 1009.Montana Avenue, El Paso, Texas
79902.
Respondent- Honorable Luis Aguilar, Judge, 243rct District Court of El
Paso County, Texas, 500 E. San Antonio Ave., 91h Floor, El Paso, Texas 79901.
Real Party in Interest- The State of Texas, District Attorney, 341h Judicial
District, represented in this mandamus proceeding by District Attorney Jaime
Esparza and Assistant District Attorney Lily Stroud, 201 El Paso County
Courthouse, 500 E. San Antonio, El Paso, Texas 79901, and represented in the
underlying criminal case by District Attorney Jaime Esparza and Assistant District
Attorneys Denise ButterWorth and James Montoya, 201 El Paso County
Courthouse, 500 E. San Antonio, El Paso, Texas 79901.
11
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 11
INDEX OF AUTHORITIES V-Vl
STATEMENT OF THE CASE Vll-IX
STATEMENT OF FACTS 1-14
STATE'S RESPONSE TO RELATOR'S PETITION FOR WRIT OF
MANDAMUS: Article 38.43 only mandates the testing of biological evidence
as defmed by subsection (a), and the trial court is afforded discretion as the
"gatekeeper" in determining whether the State has rebutted the presumption
that any biological material the defendant requests to be tested constitutes
biological evidence required to be tested. In this case, the trial court's initial
order granting the State's request for DNA testing did not constitute a
determination that the evidence the State sought, on its own initiative, to be
tested was biological evidence required to be tested under subsection (i).
Additionally, the record is devoid of any specific request by So lis-Gonzalez
for DNA testing of certain untested biological materiaL But even assuming,
arguendo, that Solis-Gonmlez made any such a request, the State sufficiently
rebutted any presumption that tlltere existed untested biological material that
constituted biological evidence required to be tested. Consequently, the trial
court did not abuse its discretion, or violate a ministerial duty, in determining
that, in the absence of biological evidence required to be tested, it would not
further delay Solis-Gonmlez's triaL 15
ARGUMENT AND AUTHORITIES 15-49
PRAYER 50
SIGNATURES 50-51
CERTIFICATE OF COMPLIANCE 50
lll
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CERTIFICATE OF SERVICE 51
APPENDICES A-L ATTACHED TO END OF RESPONSE
IV
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INDEX OF AUTHORITIES ·
STATE CASES
Bell v. State, 90 S.W.3d 301 (Tex.Crim.App. 2002) ..................... 44, 47
Bennett v. Paxson, 932 S.W.2d 81 (Tex.App.-E1 Paso 1996,
or.ig. proceeding) .................................................. 16
Board ofPardons and Paroles ex rei. Keene v. Court ofAppeals
for the Eighth District, 910 S.W.2d 481 (Tex.Crim.App. 1995,
orig. proceeding) .................................................. 16
Chase v. State, 448 S.W.3d 6 (Tex.Crim.App. 2014).. . . . . . . . . . . . . . . . . . . 17-18
Getts v. State, 155 S.W.3d 153 (Tex.Crim.App. 2005) ................... 17-18
Pitts v. State, 916 S.W.2d 507 (Tex.Crim.App. 1996) ...................... 46
Prible v. State, 245 S.W.3d 466 (Tex.Crim.App.), cert. denied,
555 U.S. 833, 129 S. Ct. 54, 172 L. Ed. 2d 55 (2008) ...................... 43, 47
Rivera v. State, 89 S.W.3d 55 (Tex.Crim.App. 2002) ....................... 44
State ex rei. Healy v. McMeans, 884 S.W.2d 772 (Tex.Crim.App. 1994,
orig. proceeding) .................................................. 16
Texas Farmers Ins. Co. v. Cooper, 916 S.W.2d 698 (Tex.App.-El Paso
1996, orig. proceeding) ............................................. 16
Thieleman v. State, 187 S.W.3d 455 (Tex.Crim.App. 2005) .................. 46
Whitaker v. State, 160 S.W.3d 5 (Tex.Crim.App.), cert. denied,
543 U.S. 864, 125 S. Ct. 194, 160 L. Ed. 2d 106 (2004) ............... : .... 43, 47
v
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STATE STATUTES
TEX. CRIM. PROC. CODE art. 38.43(a) ................................ 19, 43
TEX. CRIM. PROC. CODE art. 38.43(i) ................................ 18, 37
TEX. CRIM. PROC. CODE art. 38.43(j). . . . . . . . . . . . . . . . . . . . . 20-22, 24-25, 35, 38
TEX. CRIM. PROC. CODE art. 38.43(1) ................................... 31
TEX. CRIM. PROC. CODE art. 38.43(m) ............................ 20, 25~26
SESSION LAWS
Act of 2013, 83rd Leg., R.S., ch. 1349, § 3, 2013 Tex.Gen.Laws. 3587 .......... 18
LEGISLATIVE MATERIALS
ENROLLED BILL SUMMARY, Tex. S.B. 1292, 83rd Leg., R.S. (2013) ............. 27
' '
HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. S.B. 1292,
83rd Leg., R.S. (May 20, 2013) ............................. 27-29, 35, 37, 43
SENATE COMMITTEE REPORT, Texas Senate Committee on .
Criminal Justice, Tex. S.B. 1292, 83rd Leg., R.S. (April11, 2013) .......... 24-26
Tex. S.B. 1292 (introduced version) ...... ' ............................. 24
· Tex. S.B. 1292 (enrolled version). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26, 28
VI
• •
STATEMENT OF THE CASE
Luis So lis-Gonzalez, relator, was charged by indictment with capital murder
on August 28, 2012. See (tab A of relator's petition). On October 17, 2012, the
State filed notice of its intent to seek the death penalty. See (State's Appendix A).
The State subsequently filed, on or about April22, 2014, a ''Motion for DNA
Testing by the Texas Department of Public Safety, Crime Laboratory pursuant to
T.C.C.P., article 38.40," which the trial court granted. See (tabs B-C of relator's
petition). On May 13, 2014, the trial court entered a written order setting
September 1, 2014, as a deadline for the completion of that DNA testing. See (tab
D of relator's petition). On June 5, 2014, the DPS lab advised the trial court by
letter that it would be unable to complete the DNA testing by the court-ordered
deadline and requested an extension of time until June 1, 2015, to complete the
testing. See (tab E or relator's petition).
On June 25, 2014, the trial court advised the parties of its intent to have a
pretrial hearing to determine the applicability of article 38.43, to address whether
the Legislature considered the delays the recent amendments to article 38.43
would cause the DPS lab, and to consider how those amendments would affect the
\
" ... Speedy Trial rights of the accused and the State[.]" See (tab F of relator's
petition). The trial court held this pretrial article 38.43 hearing on October 2,
Vll
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2014, during which it heard evidence and argument. See generally (State's
Appendix B- reporter's record of the October 2, 2014, hearing). In a letter to the
defense on October 6, 2014, the trial court requested that the defense identify any
necessary piece of evidence it believed the State failed to submit for testing and to
provide the justification for such testing. See (State's Appendix C). The record is
devoid of the defense's response to this request.
On January 9, 2015, the tria·l court entered a written order opining that
article 38.43 "... did not mandate that every single piece of evidence seized by law
enforcement in a [death-penalty case] must be forensically analyzed" and that the
-
evidence presented by the State at the ·october 2, 2014, hearing, showing the DNA
results of evidence that had already been tested, demonstrated " ... substantial
compliance with the intent of the statute." See (tab G of relator's petition).
Explaining that So lis-Gonzalez had been instructed to identify any necessary piece
of evidence the State failed to submit for analysis and the justification for such
testing and that So lis-Gonzalez's response did not warrant further delay of his
trial, the trial court ordered that Solis-Gonzalez's.trial setting remain on the court's
docket for May 8, 2015.
Vlll ·
• •
Alleging that the trial court violated a ministerial duty by refusing to delay
'
his trial setting until after the DPS lab completed its DNA testing of all the
evidence submitted by the State, So lis-Gonzalez now seeks mandamus relief from
this Court.
IX
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STATEMENT OF FACTS
The indictment in this case alleged that So lis-Gonzalez committed capital
murder by intentionally and knowingly causing the deathsofMarysol Saldivar,
Eric DeSantiago, and C.H during the same criminal transaction. See (tab A of
relator's petition). Specifically, the indictment alleged that Soli~-Gonzalez caused
\
Saldivar's death by striking her about the head with an unknown object, that he
caused DeSantiago's death by striking him about the head with an unknown object
and by stabbing him about the body with a knife, and that he caused C.H 's death
by strangling her with a ligature. See (tab A of relator's petition).
In its initial motion for DNA testing, the State requested that the trial court
order the DPS lab to " ... test all items of evidence submitted by the El Paso Police
Department containing biological evidence for DNA comparison, pursuant to
T.C.C.P. Article 38.43." See-(tab B of relator's petition). In granting the State's
/
motion, the trial court ordered the DPS lab to "... test all items submitted by the El
Paso Police Department containing biological evidence for DNA comparison."
See (tab C of relator's petition). The State's motion and the trial court's order do
not indicate that the State and the defense conferred, and agreed, about what
evidence contained biological material or that the trial court determined that any
.1
/
• •
evidence the State submitted for testing constituted biological evidence required to
be tested under article 38.43.
In the trial court's May 13, 2014, order setting a deadline for the completion
of ti?-at DNA testing, the trial court, first noting that it had previously granted the
State's motion for DNA testing, further ordered that"... all DNA testing in
reference to [this case] be completed by September 1, 2014." See (tab D of
relator's petition).
On June 5, 2014, the DPS lab advised the trial court, by letter, that it would
be unable to meet the September 1, 2014, deadline, explaining that it lacked the
resources to process the ''high volume" of evidence it received from the State by
the court-ordered deadline. See (tab E of relator's petition). The DPS lab
requested an extension of time until June 1, 2015, to complete that DNA testing.
See id.
On June 25, 2014, the trial court advised the parties of its intent to have a
pretrial hearing to determine how article 38.43 would be applied in Solis~
Gonzalez's case, to address whether the Legislature took into consideration the
delays the recent amendments to article 38.43 would cause the DPS lab, and to
consider how those amendments would affect the " ... Speedy Trial rights of the
accused and the State[.]" See (tab F of relator's petition). The trial court further
2
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advised the parties that it intended to also address the issue of whether " ... the State
of Texas is required to submit to a laboratory for forensic analysis, every piece of
biological evidence they seized at the crime scene." See id.
At this pretrial article 38.43 hearing, which was held on October 2, 2014,
the prosecutor, during her opening comments, explained that the State had
submitted every piece of physical evidence that contained biological material to
the DPS lab for DNA testing, but opined that if the State and the defense could not
agree on what biological material was actually required to be tested, article 38.43
provided that the trial court hold a hearing to resolve that disagreement. See
(State's Appendix Bat 3-5). Defense counsel agreed with the prosecutor's
assertion that the defense was " ... asking that all evidence that contained biological
material be tested or screened for DNA" and that the parties could not agree on
what was required to be tested. (State's Appendix Bat 4-5).
Before discussing the results of DNA testing that had been performed up to
that point, the prosecutor provided, without objection, a brief recitation of the facts
underlying Solis-Gonzalez's capital-murder prosecution. See generally (State's
Appendix B at 8-11 ). According to the prosecutor, officers with the El Paso
'
Police Department were dispatched to a residence on Bengal Street on May 31,
2012, where they found three-dead victims: (1) Eric DeSantiago, who was found in
3
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the kitchen with his face wrapped in duct tape and with bums on his chest,
numerous stab wounds, and blunt-force injuries to his head, (2) Marysol Saldivar,
who was found in the living room with blunt-force injuries to her head and stab
wounds, and (3) thirteen-year-old C.H, who was found in her upstairs bedroom
with a slight ligature mark on her neck and who was later determined to have died
from ligature strangulation. (State's Appendix Bat 9-10).
The prosecutor related that after So lis-Gonzalez murdered his three victims,
he went to Mexico, taking Saldivar's truck and his biological four-year-old son,
L.S .. , who had been present during the murders, and that Solis-Gonzalez dropped
L.S. off with his (Solis-Gonzalez's) parents before leaving. (State'sAppendix B
at 10-11). The prosecutor further related that Solis-Gonzalez had told his parents
that he had committed the murders and that Solis-Gonzalez's father then,
cooperating with law enforcep}ent, returned L.S. to the United States and told the
police that So lis-Gonzalez had confessed to committing the murders. (State's
Appendix Bat 10).
So lis-Gonzalez was ultimately apprehended at the United States-Mexico
border, where he turned himself in. (State's Appendix Bat 10). According to the
prosecutor, So lis-Gonzalez provided a statement to the police in which he
admitted to breaking into the victims' house earlier in the day and to later
4
• •
murdering DeSantiago and Saldivar. (State's Appendix Bat 10-11). The
prosecutor related that So lis-Gonzalez admitted to tying C.H up in L.S. 's room,
but denied killing her. (State's Appendix Bat 11).
In summarizing the major categories of evidence collected, the prosecutor
explained that evidence had been collected from the Bengal Street home where the
murders occurred, that L.S. 's clothes had been collected when he was returned to
the United States, that evidence was collected from Saldivar's truck, that Solis-
Gonzalez's clothes were collected when he turned himself in, and that evidence
was collected during the autopsies of the three victims. (State's Appendix B at 11-
12). The prosecutor further advised the trial court that Nicholas Ronquillo, the
DNA section supervisor and technical leader for the E1 Paso DPS lab, had
represented to both her and defense counsel that the DPS lap was about halfway
through the DNA testing requested by the State. (State's Appendix Bat 23).
The prosecutor then set out some of the DNA results the State had received
to date and provided photographs, the crime-scene video, and DPS lab reports, as
well as a spreadsheet setting out the DNA results, to the trial court for review.
(State's Appendix Bat 5-8,12-14, 49-51); (State's Appendices D-L). Specifically,
the prosecutor presented, in relevant part, the following specific DNA results,
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which are set out below by EPPD evidentiary number, the description of the item
from which swabs were taken, and the DNA results:
JE-02: Blood on handle of kitchen knife on kitchen counter at crime scene =
mix of DNA from Solis-Gonzalez and DeSantiago. Blood on blade of
kitchen knife on kitchen counter = mix of DNA from DeSantiago and
low level of data on other component of mixture (State's Appendix B
-at 14); (State's Appendices E-G).
JE-69: Blood on blade of knife ill upstairs restroom = mix of DNA from
Solis-Gonzalez and DeSantiago. Blood on handle of knife in upstairs
restroom= mix of DNA from So lis-Gonzalez and DeSantiago (State's
Appendix Bat 14); (State's Appendices E-G),
JE-04: Blood on handle of broken knife on kitchen floor = mix of DNA from
So lis-Gonzalez and DeSantiago (State's Appendix Bat 15); (State's
Appendices E-G).
JE-38: Blood on blade of broken knife on kitchen floor= DNA from
DeSantiago (State's Appendix Bat 15); (State's Appendices E-G).
JE-72: Blood on pair of girl's blue jeans found in C.H. 's bedroom= DNA
from Solis-Gonzal~z (State's Appendix Bat 15); (State's Appendices
-E-G) .
. 5208670: Stain on So lis-Gonzalez's right tennis shoe collected when he was
arrested= mix of DNA from DeSantiago and Saldivar (State's
Appendix Bat 15-16); (State's Appendices E-G).
MM01: Stain on Micky Mouse baseball cap collected from L.S. =DNA from
Saldivar (State's Appendix Bat 16); (State's Appendices E-G).
JE113: Bloody tissue found inside Saldivar's truck in which Solis-GonzaJez
fled= DNA from DeSantiago (State's Appendix Bat 16); (State's
Appendices E-G).
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BM01: Stain on So lis-Gonzalez's jeans collected when he was arrested =
mix of DNA from Solis-Gonzalez and DeSantiago (State's Appendix
Bat 16); (State's Appendices E-G).
JE17: Blood on piece of toilet paper found on Saldivar's crotch area= mix
of DNA with Solis-Gonzalez as a contributor. (State's Appendix Bat
16-17); (State's Appendices E-F, H).
JE24: Blood on piece of duct tape from upstairs bath tub = mix of DNA
from Solis-Gonzalez and DeSantiago (State's Appendix Bat 17-18);
(State's Appendices E-F, H) ..
JE20: First stain on piece of duct tape found in hamper = mix of DNA from
So lis-Gonzalez and DeSantiago. Second stain on piece of duct tape
found in hamper= mix of DNA from So lis-Gonzalez, C.H,
DeSantiago, Saldivar, and L.S. (State's Appendix Bat 18); (State's
Appendices E-F, H).
JE30: Stain on piece of duct tape found in L.S. 's room= mix of DNA from
Solis-Gonzalez and DeSantiago (State's Appendix Bat 18); (State's
Appendices E-F, H).
JE28: Stain on piece of duct tape found in bag of toys in L.S. 's room= mix
of DNA from Solis-Gonzalez, DeSantiago, Saldivar, C.H, and CS.
(State's Appendix Bat 18); (State's Appendices E-F, H).
JE34: Stain on "makeshift fmger cast" next to vacuum outside of upstairs
restroom= mix of DNA from So lis-Gonzalez and DeSantiago.
(State's Appendix Bat 18-19); (State's Appendices E-F, H). 1
JE66: Stain from ''fmger splint" found in C.H 's bedroom next to her bed=
DNA from Solis-Gonzalez (State's Appendix Bat 19); (State's
Appendices E-F, H).
1
The prosecutor explained that these "makeshift finger casts" appeared to have been an
. effort by So lis-Gonzalez to bandage the cuts he sustained on his fingers while stabbing the
victims. (State's Appendix Bat 16-17).
7
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JE70: · Stain from tennis shoe with missing shoelace found in L.S. 's room=
DNA from DeSantiago (State's Appendix Bat 19); (State's
Appendices E-F, H). 2
JE22: Stain on white shirt from upstairs restroom floor = DNA from.
DeSantiago. Stain on collar of white shirt from upstairs restroom
floor =mix of DNA with So lis-Gonzalez as a contributor (State's
Appendix Bat 19-21); (State's Appendices E-F, H).
JE99: Stain from duct tape from DeSantiago's head= DNA from
DeSantiago. Stain from rag removed from DeSantiago's head= DNA
from DeSantiago. (State's Appendix Bat 21); (State's Appendices E-
F, H).
JE78: Blood from right-hand fmgemail clippings from C.H. = mix of DNA
from Solis-Gonzalez and C.H (State's Appendix Bat 22); (State's
Appendices E-F, H).
5208670: Stain on Solis-Gonzalez's left tennis shoe collected when he was
arrested= DNA from DeSantiago (State's Appendix Bat 22); (State's
Appendice~ E-F, H). ·
BM03: Stain from Solis-Gonzalez's black shirt collected when arrested=
DNA from Saldivar (State's Appendix Bat 22); (State's Appendices
E-F, H).
The remajning evidence listed on the State's spreadsheet and mentioned at
the hearing, and for which the State presented the results of any DNA analysis, did
not serve to esta~lish another individual as the perpetrator, nor did that evidence
serve to exclude So lis-Gonzalez as the perpetrator. See generally (State's
2
The prosecutor explained that Solis-Gonzalez confessed to tying C.H. up with shoelaces
and that a bloody shoelace was found in the same drawer with one of the bloody knives. (State's
AppendixB at 15).
8
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Appendix Bat 15-16, 21); (State's Appendices E-H). The State also presented lab
reports indicating the items from which the analysts were unable to detect the
presence of biological material. See generally (State's Appendices E-L).
After the State's proffer of the foregoing evidence, the prosecutor explained·
to the trial court that, in an attempt to comply with the recent amendments to
article 38.43, which mandated the DNA testing of biological evidence in a death-
penalty case and because there had been no initial agreement between the State
and the defense on what items to test, she had submitted a total of 206 items of
evidence to the DPS lab for analysis. (State's Appendix Bat 23). The State then
argued that article 38.43 did not mandate the testing of every single piece of
evidence that contained biological material, that the State's submission of 206
items of evidence had overburdened the DPS lab and delayed the trial, and that
because all of the significant items of evidence had already been tested and all of
the DNA results thus far pointed to So lis-Gonzalez as the perpetrator who
murdered the three victims, the trial court could make the determination as to
whether there were any remaining untested items that were required to be tested.
(State's Appendix Bat 23-27, 40, 42-45).
When the trial court asked the prosecutor how she determined what items of
evidence to submit for testing, she explained that because she had believed the
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new amendments to article 38.43 required the testing of all items that could
possibly contain biological material, she had submitted all the evidence that could
conceivably contain biological material, regardless of whether that biological
material was readily apparent. (State's Appendix Bat 27-28).
The State then presented the testimony of Nicholas Ronquillo, the DNA
section supervisor and technical leader for the' El Paso DPS lab, who testified
regarding some of the challenges the lab faced in attempting to comply with
requests for DNA testing pursuant to the recent amendments to article 38.43.
(State's Appendix Bat 29-30). Specifically, Ronquillo explained that with its two
qualified DNA analysts, the DPS lab lacked sufficient personnel to process large
requests in a reasonable amount of time, that DNA analysis was very expensive,
and that the DPS lab did not perform touch-DNA testing because there was
typically not enough biological material to analyze with their equipment. (State's
Appendix B at 31-33).
Ronql,lillo agreed with the prosecutor that she had requested that the DPS
lab " ... take a swab from almost every piece of evidence in this case ... ," which the
prosecutor explained was to ensure that every piece of evidence that could
'·
conceivably yield biological evidence was submitted for testing. (State's
Appendix B at 33). Ronquillo explained that the DPS lab was using its logic,
10
•
reasoning, training, and skills to make a determination as to whether it needed to
collect swabs for touch-DNA. (State's Appendix Bat 33). When·asked by the
trial court how long it would take for the DPS lab to process all 206 items of
evidence submitted by the State, Ronquillo testified that he projected that the lab
would be able to complete the analysis by June of 2015. (State's Appendix Bat
33-34).
During arguments, defense counsel argued that because the State only
.
sought DNA testing to strengthen its own case and because a defendant in a death-
penalty case was " ... entitled to have a complete defense ... ," the defendant had
" ... an absolute right to have all the evidence tested," regardless of any delay in the
proceedings and the costs incurred by the State for such testing. (State's
Appendix Bat 36-40). Defense counsel further argued that although "[t]here
[was] a reference for identification ... ," the DNA testing required by article 38.43
was not limited to only issues related to the identity of the perpetrator and even
extended to assist the defendant in fmding mitigating evidence. (State's Appendix
Bat 38-39).
Defense counsel offered to tell the trial court in "... an ex parte fashion the
defensive reasons of why we believe all the evidence is important because the
State of Texas is not entitled to know that..." and argued that " ... unless all the
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evidence is tested ... ," Solis.:Gonzalez would be deprived of exculpatory and
mitigating evidence. (State's Appendix Bat 38-39). Defense counsel requested
that the trial court delay So lis-Gonzalez's trial until after DPS completed its DNA.
testing of the State's evidence. (State's Appendix B at 39).
When the trial court raised the concern of So lis-Gonzalez' speedy-trial
rights in light of his lengthy pretrial incarceration, defense counsel asserted that
So lis-Gonzalez waived any speedy-trial claim. (State's Appendix Bat 46-47). In
tum, the prosecutor argued that although the defendant's rights were important,
the State also had the right not to have its cases delayed by unnecessary DNA
testing. (State's Appendix Bat 47-48).
At the conclusion of the hearing, defense counsel advised the trial court that
after he reviewed the evidence tendered by the State, he would then " ... add a
supplement of what I believe is relevant and give [the prosecutor] an opportunity
to what I'm giving this Court... " because he did not " ... believe that what [the
prosecutor] is going to tender to the Court is going to be what I believe should be
all inclusive encompassing of what we believe why we're asking all the DNA
evidence to be tested." (State's Appendix Bat 51). 3 In a letter to the defense on
3
In his mandamus petition, Solis-Gonzalez claims that "[d]uring the pretrial hearing,
Relator produced photographs for Respondent to review in camera of 158 items collected by the
E1 Paso PoliceDepartment as biological material and requested all biologica~ evidence be tested
12.
• •
Oct910 S.W.2d 481, 483 (Tex.Crim.App. 1995, orig. proceeding); State ex
ref. Healy V. McMeans, 884 S.W.2d 772, 774 crex.Crim.App. 1994, orig.
proceeding); Bennett v. Paxson, 932 S.W.2d 81, 82 (Tex.App.-El Paso 1996, orig.
proceeding). In regard to the second element, an act is ministerial in nature if the
law clearly spells out the duty to be performed with such certainty that nothing is
left to the exercise of discretion or judgment, that is, the relator has a Clear right to
the relief sought, and the facts and the law permit the trial court to make but one
decision. See State ex ref. Healy v. McMeans, 884 S.W.2d at 774; Texas Farmers
Ins. Co. v. Cooper, 916 S.W.2d 698, 700 (Tex.App.-El Paso 1996, orig.
proceeding).
II. Article 38.43 only mandates the testing of biological evidence as defmed
by subsection (a), and the trial court is afforded discretion as the
"gatekeeper" in determining whether the State has rebutted the
presumption that any biological material the defendant requests to be
tested constitutes biological evidence required to be tested.
In his mandamus petition, So lis-Gonzalez asserts that once the trial court
. . .
granted the State's own initial motion for DNA testing, the trial court lacked any
discretion to later determine that article 38.43 did not require DNA testing of all
16
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the items submitted by the State to the DPS lab and that the trial court had a
ministerial duty to delay So lis-Gonzalez's trial until the DNA testing of all the
physical evidence the State submitted for testing was complete. See (relator's
petition at 8); see also (tab G of relator's petition). So lis-Gonzalez further asserts
that " ... the statute does not permit the trial court exercise [sic] any discretion or
deviate from the mandate that any biological evidence shall be required testing
[sic] before a defendant a [sic] tried for a capital offense." See (relator's petition
at 9).
A. The plain meaning of article 38.43(a), (i), and G)
A determination of whether the trial court violated any ministerial duty or
abused its discretion in this case should begin with a review of the provisions of
article 38.43 that are applicable to this case in order to determine which provisions
are permissive and which are mandatory. When discerning the meaning of a
statute, the reviewing court should begin with its plain language. See Getts v.
State, 155 S.W.3d 153, 155 (Tex.Crim.App. 2005). If that language is dear and
unambiguous, the plain meaning of those words is applied. See Chase v. State,
448 S.W.3d 6, 11 (Tex.Crim.App. 2014); Getts, 155 S.W.3d at 155. But if the
plain language leads to absurd results that the Legislature could not possibly have
intended, or if the language is ambiguous, the reviewing court may consider extra-
17
• •
textual factors to determine the statute's meaning. See Chase, 448 S.W.3d at 11;
Getts, 155 S.W.3d at 155.
Subsection (i) of article 38.43, which became effective on September 1,
2013, provides that:
Before a defendant is tried for a capital offense in which the state is seeking
the death penalty, subject to Subsection (j), the state shall require either the
Department of Public Safety through one of its laboratories or a laboratory
accredited under Section 411.0205, Government Code, to perform DNA
testing, in accordance with the laboratory's capabilities at the time the
testing is performed, on any biological evidence that was collected as part of
an investigation of the offense and is in the possession of the state. The
laboratory that performs the DNA testing shall pay for all DNA testing
performed in accordance with this subsection. See TEX. CRIM. PROC. CODE
art~ 38.43(i); see also Act of 2013, 83rct Leg., R.S., ch. 1349, § 3, 2013
Tex.Gen.Laws. 3587.
A literal reading of subsection (i) mandates the DNA testing of ''biological
evidence," as that term is specifically defmed in article 38.43, in a death-penalty
case. See art. 38.43(i). At no point, however, does subsection (i) require that the
State have DPS test any and all physical evidence seized by law enforcement.
Rather, subsection (i) only requires DNA testing of any biological evidence that
was collected as part of the investigation of the offense and is in possession of the
State. See art. 38.43(i) (emphasis added).
18
• •
Biological evidence, in the context of article 38.43, is not merely any
biological material, and article 38.43 does not use those terms synonymously.
Subsection (a) of article 38.43 specifically defmes biological evidence as follows:
(a) In this article, ''biological evidence" means:
( 1) the contents of a sexual assault examination kit; or
(2) any item that contains blood, semen, hair, saliva, skin tissue,
fmgemail scrapings, bone, bodily fluids, or other identifiable
biological material that was collected as part of an investigation of an
alleged felony offense or conduct constituting a felony offense that.
might reasonably be used to:
(A) establish the identity of the person committing the offense
or engaging in the conduct constituting the offense; or
(B) exclude a person from the group of persons who could have
committed the offense or engaged in the conduct constituting
the offense. See TEX. CRIM. PROC. CODE art. 38.43(a).
Thus, the plain language of article 38.43(i) does not mandate the testing of
all physical evidence or even all biological material collected during an
investigation. Rather, subsection (i) only requires DNA testing of biological
evidence as defmed by subsection (a), that is, evidence that constitutes identifiable
biological material that might reasonably be used to establish the identity of the
perpetrator or exclude aperson, presumably the defendant, from the group of
persons who could have committed the offense. 4
4
A defendant who is unable to show that certain biological material constitutes biological
evidence that is required to be tested, that is, biological material that goes to the identity of the
perpetrator, is not without recourse. Subsection (m) of article 38.43 provides that:
19
• •
But while subsection (i) imposes a mandatory requirement that any
biological evidence, as that term is specifically defmed, collected during an
investigation be submitted for DNA testing, subsection (j) of article 38.43
designates the trial court as the "gatekeeper" to make the threshold determination
of whether the biological material sought to be tested by the defendant actually
constitutes biological evidence required to be tested: " .. .If the state and the
defendant do not agree on which biological materials qualify as biological
evidence, the state or the defendant may request the court to hold a hearing to
determine the issue." See TEX. CRIM. PROC. CODE art. 38.43(j). In other words, in
the event thatthe parties, after conferring with one another, cannot agree on what
biological materials constitute biological evidence that is required to be tested, the
parties may request a hearing, at which the trial court exercises its discretion in
'
deciding the issue. See art. 38.43(j).
On an ex parte showing of good cause to the court, a defendant may have [an
accredited] laboratory... perform testing of any biological material that is not
required to be tested under Subsection (i). The defendant is responsible for the
cost of any testing performed under this subsection. See TEX. CRIM. PROC. CODE
art. 38.43(m) (emphasis added).
As will be discussed below, the addition of this provision is an indication that the
Legislature made a distinction between biological material and biological evidence and intended
that the evidence required to be tested under subsection (i) constitute more than mere biological
material, since subsection (m) recognizes that there may exist biological material that does not
constitute biological evidence as defined by subsection (a).
20
• •
And in making this determination of whether the biological material sought '
, to be tested constitutes biological evidence required to be tested, there are, at the
very least and in the context of this case, two fmdings that the trial court must first
make, according to the plain language of subsection (j). Specifically, subsection
(j) provides that "[a]t the hearing, there is a rebuttable presumption that the
biological material that the defendant requests to be tested constitutes biological
evidence that is required to be tested under Subsection (i)." See TEX. CRIM. PROC.
CODE art. 38.43(j). Because all of the State's physical evidence will not
necessarily contain biological material, and because the plain language of
subsection (j) only permits the defendant to request the testing of biological
material, the defendant must first lodge a specific enough request that, at the very
least, alleges, or in some manner identifies, the biological material sought to be
I
tested or otherwise articulates that any specific evidence he does identify
constitutes or contains biological material. See id. In other words, global requests
that all of the physical evidence in the State's possession be tested, regardless.of
whether that evidence actually contains or constitutes biological material, are
insufficient to put the trial court or the State on notice of the specific biological
material the defendant wants to test or to invoke the rebuttable presumption that
21
• •
the specific biological material constitutes biological evidence required to be
tested.
In the absence of a specific request by the defendant to test any certain
biological material, the State is in no position to rebut any presumption that certain
biological material sought to be tested constitutes biological evidence as defmed
by subsection (a) because the defendant never actually lodged a specific request
for the testing of that biological material. Similarly, the trial court cannot make a
determination that certain biological material constitutes biological evidence
because the trial court has not been advised by the defendant as to what biological
material he believes constitutes biological evidence required to be tested. Thus,
according to the plain language of subsection U), the trial court must determine,
before the State is required to rebut any presumption at the pretrial hearing,
whether the defendant lodged a specific enough request of testing of certain
identifiable biological material. See art. 38.43U).
Additionally, the plain language of subsection U) provides that if the
defendant does make a request for the testing of certain biological material, the
presumption that that biological material is biological evidence required to be
tested is one that may be rebutted by the State at the pretrial hearing. See art.
38.43U). Thus, in addition to making a fmding as to whether the defendant made a ·
22
• •
sufficiently specific request to test certain identifiable biological material, the trial
· court must determine whether the State has sufficiently rebutted any presumption
that any specific biological material for which the defendant requested testing
constitutes biological evidence as defmed by subsection (a). And as previously
stated, the trial court is the designated gatekeeper in making the determination of
whether the State has sufficiently rebutted that presumption.
For all the foregoing reasons, the plain language of article 38.43 only
mandates the testing of biological evidence as defmed by subsection (a), and the
trial court is afforded discretion as the gatekeeper in determining whether the State .
has rebutted the presumption that any specific biological material the defendant
requests to be tested constitutes biological evidence required to be tested under
subsection (i).
B. The legislative intent of the recent amendments to article 38.43
The foregoing interpretation, that article 38.43 only mandates the testing of
biological evidence as defmed by subsection (a) and that the trial court is afforded
discretion as the gatekeeper in determining whether the State sufficiently rebutted
the aforementioned presumption, is consistent with the legislative intent of the
recent amendments to article 38.43. Senate Bill 1292, as it was initially
introduced, simply proposed to add the following amendment as subsection (i):
23
• •
SECTION 1. Article 38.43, Code of Criminal Procedure, is amended
by adding Subsection (i) to read as follows: .
(i) . Before a defendant is tried for a capital offense in which the
state is seeking the death penalty, the Department of Public
Safety shall perform DNA testing on all biological evidence
that was· collected as part of an investigation of the offense.
See Tex. S.B. 1292 (introduced version). The introduced version did not-propose
to add subsections (j) or (m) now found in article 38.43. See id.
The Senate Committee on Criminal Justice subsequently presented a
substitute version of S.B. 1292 that contained language substantially similar to
that now found in article 38.43(i) and (j), except that subsection (i) of the
substituted version did not reference subsection (j). See SENATE COMMITTEE
REPORT, Texas Senate Committee on Criminal Justice, Tex. S.B. 1292, 83rd Leg.,
R.S. (Aprilll, 2013). Unlike the introduced version of the bill, the substitute
version proposed to add subsection (j), which differed from that currently found in
article 38.43 in that it did not provide for the rebuttable presumption discussed
above and instead stated: "At the hearing, a request by the defendant to test
biological material is prima facie evidence that the biological material constitutes
biological evidence that is required to be tested under Subsection (i)." Compare
SENATE COMMITTEE REPORT, Texas Senate Committee on Criminal Justi~e, Tex.
S.B. 1292, 83rd Leg., R.S. (Aprilll, 2013) with TEX. CRIM. PROC. CODE art.
24
• •
38.43Q) ("At the hearing, there is a rebuttable presumption that the biological
material that the defendant requests to be tested constitutes biological evidence
that is required to be tested under Subsection (i).").
Additionally, the substitute version of S.B. 1292 proposed to add subsection
(m), which mirroredthat subsection as it currently appears in article 38.43:
A defendant may have another laboratory accredited under Section
411.0205, Government Code, perform additional testing of any biological
evidence required to be tested under Subsection (i). On an ex parte showing
of good cause to the court, a defendant may have a laboratory accredited
under Section 411.0205, Government Code, perform testing of any
biological material that is not required to be tested under Subsection (i).
The defendant is responsible for the cost of any testing performed under this
subsection. See TEX. CRIM. PROC. CODE art. 38.43(m); see also SENATE
COMMITTEE REPORT, Texas Senate Committee on Criminal Justice, Tex.
S.B. 1292, 83rct Leg., R.S. (April1 i, 2013).
The enrolled version of S.B. 1292, ultimately enacted, contained additional
changes to subsections (i) and Q). Specifically, an ·amendment to subsection (i)
provided that the mandate in subsection (i) requiring DNA testing of any
biological evidence collected during an investigation of a death-penalty case was
subject to the procedures set forth in subsection Q). See Tex. S.B. 1292 (enrolled
version). Additionally, the original language in subsection U) providing that a
defendant's request to test biological material was " ... prima facie evidence that the
(
biological material constitutes biological evidence that is required to be tested
25
• •
under Subsection (i)" was changed to provide that there is a presumption, that may
be rebutted by the State, that biological material a defendant requests to be tested
constitutes biological evidence that is required to be tested. See SENATE
COMMITTEE REPORT, Texas Senate Committee on Criminal Justice, Tex. S.B.
1292, 83rd Leg., R.S. (Aprilll, 2013); see also Tex. S.B. 1292 (enrolled version).
. That the Legislature intended to make a distinction between evidence that is
simply biological material and biological evidence that is required to be tested is
thus reflected not only in the plain language of subsections (a), (i), and (j), which
expressly make that distinction, but also by the addition of subsection (m), which
provides a defendant in a death-penalty case with the means to request pretrial
testing of biological materials that do not constitute biological evidence required
to be tested under subsection (i). See Tex. S.B. 1292 (enrolled version). By its
very language, subsection (m) recognizes that there may exist biological material
that does not constitute biological evidence required to be tested, supporting the
conclusion that the Legislature intended biological evidence required to be tested
under subsection (i) to not be merely any biological material, but rather, biological
material that goes to the issue of the identity of the perpetrator. See Tex. S.B.
1292 (enrolled version); see also TEX. CRIM. PROC. CODE art. 38.43(m) (providing
that a defendant may have an accredited laboratory perform testing of any
26
• •
biological material that is not biological evidence required to be tested under
subsection (i)). 5
Additionally, that the Legislature intended the required DNA testing of
biological evidence in subsection (i) be subject to the procedures outlined in
subsection (j), in which the trial court acts as the gatekeeper in determining what
biological material actually constitutes biological evidence, is demonstrated by th~
' -
amendment expressly providing that subsection (i) was "subject to" the procedures
outlined in subsection (j) and is reflected in the bill's analysis, which explains that
"[t]he bill would establish a process to determine what evidence fell under this
requirement [that the DPS lab perform DNA testing on any biological evidence
collected during the investigation]." See HOUSE RESEARCH ORGANIZATION, BILL
ANALYSIS, Tex. S.B. 1292, 83rct Leg., R.S. (May 20, 2013); see also ENROLLED
BILL SUMMARY, Tex. S.B. 1292, 83rct Leg., R.S. (2013) (''The bill establishes
procedures for determining which biological materials collected as part of the
investigation qualify as biological evidence that is required to be tested, including
5
To any extent that Solis-Gonzalez's request for DNA testing was to develop mitigating
evidence, such a request, which would fall under subsection (m), is not governed by subsections
(i) and U), and mandamus is not the proper remedy for the trial court's denial of such a request
under subsection (1).
27 '
• •
procedures relating to a hearing if the state and the defendan~ do not agree on that
. qualification .... ").
The addition of subsection (j), with its requirement that the initiation of
DNA testing occur "[a]s soon as practicable after:the defendant is charged with a
capital offense ... ," as well as the provisions that the trial court hold a hearing to
resolve disputes as to what constitutes biological evidence and that the State may
rebut any presumption that biological material in its possession constitutes
biological evidence, see Tex. S.B. 1292 (enrolled version), appears to be an
attempt by the Legislature to allay the concerns of the bill's opponents. Echoing
the concerns of the State and the trial court in this case regarding the potential
consequences of allowing or requiriiig DNA testing without reasonable
limitations, opponents of the bill opined that the bill, as amended, " ... could result
in unnecessary DNA testing being used as a delaying tactic in death penalty
trials." See HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. S.B. 1292,
83rd Leg., R.S. (May 20, 2013).
Opponents further recognized that:
With SB 12~2 testing could be requested of numerous-in some cases
hundreds-of items or samples. These items~ while gathered from the crime
scene, may have nothing to with the identity of the criminal and the results
of the testing might not yield any relevant results. This could delay trials
and increase costs, without adding information about the crime.
28
• •
See id. And consistent with the dilemma experienced by the DPS lab in the
present case, opponents recognized that "[i]t could be difficult for crime labs to
absorb the additional testing required by SB 1292 within existing resources." See
id.
In tum, the bill's supporters explained that:
SB 1292 would ensure that its provisions were not used only as an
unreasonable delaying tactic. As soon as practicable, courts would have to
order the defense and prosecution to meet to confer about what should. be
tested. If there was disagreement over what should be tested, either party
could request a hearing. The judge holding the hearing would act as a
gatekeeper to consider a defendant's request. The presumption that a
request for testing would be done would be rebuttable by the prosecution.
See id.
Ultimately, the legislative history of the recent amendments to article 38.43
reflects that while the Legislature imposed a mandatory requirement for DNA
!
testing of biological evidence in a death-penalty case " ... to help ensure that only
the guilty faced execution," other provisions designed to impose some limits on
that testing were added in order to "... balance and protect the needs and rights of
defendants and the state in death penalty cases." See id. The legislative history
supports the conclusion that while the Legislature intended to impose a mandatory
requirement that biological evidence in a death-penalty case be subject to DNA
testing, the trial court is vested with the authority and the discretion to act as the
29
• •
demonstrated to this Court his entitlement to mandamus relief for an alleged
violation of that article. The Legislature has expressly provided that a defendant's
exclusive remedy for testing that was not performed as required under-subsection
(i) or (j) is to seek a writ of mandamus from this Court. See art. 38.43(1).
The only remaining question, then, is whether So lis-Gonzalez has presented ·
this Court with a sufficient record demon_strating that the trial court violated a
ministerial duty when it refused to delay So lis-Gonzalez's trial for further DNA
testing.
(
As will be discussed below, the record reflects that the complained-of
incomplete DNA testing was in relation to testing initiated by the State on its own
motion and was not based on any determination by the trial court that that
evidence for which the State initially sought testing was biological evidence
required to be tested under subsection (i). Additionally, the record before this
. Court is devoid of a specific request by So lis-Gonzalez identifying as-of-yet
untested biological material, and the State sufficiently rebutted any presumption at
the pretrial hearing that there existed untested biological material that constituted
biological evidence required to be tested, such that the trial court did not abuse its
discretion in determining that there existed no untested biological evidence
· required to be tested. Consequently, Solis-Go.n,zalez has failed his burden of
31
)
• •
"gatekeeper" in determining what biological material sought to be tested by the
defendant actually constitutes biological evidence. In other words, contrary to
what So lis-Gonzalez suggested at the pretrial hearing and in his mandamus
petition, there is no automatic entitlement to DNA testing of all biological
materials or all evidence in the State's possession. Rather, a defendant's
entitlement to mandatory DNA testing under subsection (i) is based upon the
satisfaction of certain conditions, and the trial court is afforded the discretion to
determine whether those conditions have been met.
For the following reasons, the trial court did not abuse its discretion as the
gatekeeper in determining that So lis-Gonzalez failed to demonstrate the existence
of biological evidence required to be tested because he failed to make a specific
request for the testing of certain biological material, and because the State.
sufficiently rebutted any presumption that any biological material So lis-Gonzalez
sought to be tested constituted biological evidence, such that So lis-Gonzalez has
failed to demonstrate his entitlement to mandamus relief.
III. So lis-Gonzalez has failed his burden of demonstrating his entitlement to
i
mandamus relief for an alleged violation of article 38.43(i) and U).
I·
Mter determining which provisions of articleJ8.43 are mandatory and .
which are permissive, the issue then becomes whether Solis,.Gonzalez has
30
• •
proving that the trial court violated a ministerial duty when it determined that, in
the absence of untested biological evidence required to be tested under article
38.43(i), Solis-Gonzalez's case could proceed to trial as scheduled.
A. Wher~the trial court's initial order granting the State's request
for DNA testing did not constitute a determination that the
evidence the State sought to be tested was biological evidence
required to be tested under subsection (i), and where the record
before this Court is devoid of a specific request by So lis-Gonzalez
for DNA testing of certain untested identifmble biological
material, the trial court did not abuse its discretion, or violate a
ministerial duty, in refusing to delay his triaL
In his mandamus petition, So lis-Gonzalez alleged that the trial court
violated a ministerial duty when it refused to delay So lis-Gonzalez's trial until the
DPS lab completed its DNA analysis of biological evidence required to be tested
pursuant to article 38.43(i). Implicit in So lis-Gonzalez's complaint is the assertion
that the trial court's initial order granting the State's request for DNA testing
constituted a determination that the evidence the State submitted for testing was
biological evidence required to be tested under subsection (i). A careful review of
the r~cord, however, reflects that the trial court's initial order simply granted the
State's initial general and global request to have all of its evidence submitted for
DNA testing, but did not purport to determine that that evidence constituted
biological evidence required to be tested under article 38.43(i).
32
• •
At the pretrial article 38.43 hearing the trial court ultimately held in this
case, the prosecutor explained that, in an attempt to comply with the recent
amendments to article 38.43 mandating the DNA testing of biological evidence
collected in a death-penalty case;and because there had been no initial agreement
between the State and the defense as to what items to test, the prosecutor had
submitted for DNA testing every piece of evidence that could have possibly
contained biological material, which amounted to approximately 206 items of
evidence. (State's Appendix Bat 3-5, 23). While the State's motion had
requested DNA testing of''biological evidence," see (tab B of relator's petition),
and the prosecutor suggested at the hearing that all of the items she submitted to
the DPS lab contained biological material, the record, and in particular
Ronquillo's testimony, shows that the prosecutor also initially submitted for
testing items that did not contain readily apparent identifiable biological material ·
out of concern that the failure to do so would somehow violate article 38.43.
(State's Appendix Bat 27-28, 33).
When the trial court asked the prosecutor at this pretrial hearing how she
-
determined what items of evidence to submit for testing, she explained that, based
on a belief that article 38.43 required the testing of items that could possibly
contain biological material, she had initially submitted all the State's evidence that
33
• •
could conceivably contain biological material, even where the presence of any .
biological material was not readily apparent. (State's Appendix Bat 27-28).
Although the trial court had granted the State's initial request for this expansive
DNA testing, there is nothing in the record or the trial court's order to indicate that
it based its ruling on a determination that the evidence the State sought to be tested
actually constituted biological evidence that w·as required to be tested under
subsection (i). See (tab C of relator's petition).
Thus, the record reflects that the State, out of an abundance of caution and
on its own initiative, and not as the result of any agreement between the parties,
made its own general and global request for DNA testing. The record further
reflects that although the trial court, in granting the State's global request for
testing, made a reference to article 38.43 and ordered the DPS lab to "... test all
items submitted by the El Paso Police Department containing biological evidence
for DNA comparison," nothing in that order, or the State's motion, indicates that
the State and the defense came to an agreement as to what evidence was required
to be tested or that the trial court made an express determination that whatever
evidence the State submitted for testing at that time constituted biological
evidence that was required to be tested under subsection (i) of article 38.43. See
(tab C of relator's petition).
34
• •
Article 38.43U) expressly provides that subsection U) "... does not. in any
way prohibit the state from testing biol()gical evidence in the state's possession,"
and nothing in that provision suggests that such a request constitutes any kind of
fmding that whatever evidence the State, on its own initiative, seeks to test is
biological evidence required to be tested under subsection (i). See TEX. CRIM.
PROC. CODE art. 38.43U). The legislative history for this provision indicates that
the Legislature specifically intended that "[t]he state would retain the right to test
all evidence in its possession." See HOUSE RESEARCH ORGANIZATION, BILL
ANALYSIS, Tex. S.B. 1292, 83rct Leg., R.S. (May 20, 2013).
Inherent in the State's right to test evidence in its possession, on its own
initiative, is the right to later reassess whether DNA testing of certain evidence is
necessary and will yield anything of probative value or whether that testing would
simply serve to delay the prosecution or unduly burden the lab performing the
testing. In this case, that is what the _State did in reassessing its own request for
DNA testing, once it became apparent that its broad submission of 206 items of
evidence had unnecessarily burdened the DPS lab, that this request for testing had
unnecessarily delayed the trial, that all significant items of evidence had already .
been tested, and that the DNA results of that testing conclusively pointed to So lis-
Gonzalez as the sole perpetrator. (State's Appendix Bat 23-27, 40, 42-45).
35
• •
And the record reflects that it was in response to the trial court's initial
order granting the State's broad request for DNA testing, which included items
that did not contain readily apparent biological material, that the DPS lab
requested additional time. The DPS lab's request for additional time was not in
response to any order issued by the trial court whereby the trial court had
determined that the evidence the State initially sought to be tested constituted
biological evidence required to be tested under subsection (i) of article 38.43, such
that the trial court's decision to proceed with Solis-Gonzalez's ~ial bef9re the
DPS lab had fmished that particular testing based on the State's request did not
constitute a violation of the requirement in subsection (i) of article 38.43 that any
biological evidence be tested before a defendant is tried in a capital death-penalty
case.
It appears that given the delay of the trial and the issues encountered by the
DPS lab in completing the broad request for testing by the State, the trial court
decided to hold a hearing to litigate how article 38.43 would be applied in Solis-
Gonzalez's case and allowed the parties to litigate what biological material
constituted biological evidence required to be tested under subsection (i).
Although the letter the trial court sent to the parties indicated that the pretrial -
hearing would address whether the State was required to test every piece of
36
• •
''biological evidence," see (tab F of relator's petition), the record of the pretrial
article 38.43 hearing and the trial court's ultimate order on January 9, 2015, reflect
that the parties were litigating the issue of whether all of the evidence collected by
the State constituted biological evidence required to be tested under subsection (i)
of article 38.43. See (tab G of relator's petition- where the trial court ruled that
" ... Article 38.43 does not mandate that every single piece of evidence seized by
law enforcement in a [death-penalty case] must be forensically analyzed."): 6
At the pretrial hearing, the prosecutor argued, and the trial court correctly
ruled, that article 38.43(i) does not mandate the testing of every single piece of
evidence or even all biological material collected by the State during its
investigation. See art. 38.43(i). As previously discussed, article 38.43(i) only
requires DNA testing of biological evidence as defmed by subsection (a), that is,
evidence that goes to the issue of the identity of the perpetrator. See id. And the
defendant's entitlement to mandatory testing under article 38.43(i) is predicated on
6
The trial court's concerns, as expressed in its June 25, 20 14,letter and at the pretrial
hearing, regarding the possibility of unnecessary delays as a result of DNA testing without
reasonable limits, were legitimate and consistent with the concerns raiseq by the opponents of
S.B. 1292, in that the new amendments to art;icle.38.43 " ... could result in unnecessary DNA
testing being used as a delaying tactic in death penalty trials" and that DNA testing without
reasonable limitations would result in increased costs and trial delay for DNA testing that yielded
no relevant evidence regarding the identity ofthe perpetrator. See HOUSE RESEARCH
ORGANIZATION, BILL ANALYSIS, Tex. S.B. 1292, 83rd Leg., R.S. (May 20, 2013).
37
• •
the defendant first making a specific request that certain biological material be
tested.
The record currently before this Court, including the record of the pretrial
hearing, is devoid of any specific request by Solis-Gonzalez identifying as-of-yet
untested biological material sought to be tested. At the beginning of the pretrial
hearing, defense counsel agreed with the prosecutor's assertion that the defense
was "... asking that all evidence that contained biological material be tested or
screened for DNA" and that the parties could not agree on what was required to be
tested. (State's Appendix Bat 4-5). At some point during the hearing, So lis-
Gonzalez, before the State was required to put forth any evidence to rebut any
presumption, was required to lodge a specific enough request that, at the very
least, alleges, or in some manner identifies, the biological material sought to be
tested or otherwise articulates that any specific evidence he does identify
constitutes or contains biological material. See art. 38.43(j).
As will be further discussed below, the State presented substantial evidence
indicating that the DNA results revealed, and any further testing would likely
confirm, that So lis-Gonzalez was the perpetrator who murdered the three victims.
In his mandamus petition, So lis-Gonzalez claims, presumably with respe~t to any
as-of-yet untested evidence, that"[ d]uring the pretrial hearing, Relator produced
38
• •
photographs for Respondent to review in camera of 158 items collected by the El
Paso Police Department as biological material and requested all biological
evidence be tested pursuant to Respondent's April23rd order and Article 38.43(i)."
See (relator's petition at 5, 10). This claim is unsupported by the reporter's record
of the October 2, 2014, pretrial article 38.43 hearing, as there appears to be no
such proffer of photographs on the record by the defense. While the record of the
pretrial hearing indicates an understanding that So lis-Gonzalez would be tendering
some type of proffer to the trial court to reflect the.necessity of testing all of the
State's evidence, (State's Appendix Bat 51), and although the trial court's January
9, 2015, order seems to imply that some type of response or proffer was made to
the trial court, see (tab G of relator's petition), that proffer does not appear in the
mimdamus record before this Court, and So lis-Gonzalez has ~ot provided any such
proffer as part of his mandamus petition.
To the extent that So lis-Gonzalez made anything resembling a request for
testing at the pretrial hearing, he simply advised the trial court that he was entitled
to DNA testing of all the State's evidence. See (State's Appendix Bat 36-40, 51).
As previously discussed, global requests for all of the State's evidence to be tested
for DNA are generally insufficient to put the trial court or the State on notice of
the specific biologica,l material the defendant wants to test or to invoke the
39
• •
rebuttable presumption in subsection (j). But even assuming, arguendo, that
So lis-Gonzalez had tendered photographs of the State's evidence to the trial court
as some kind of proffer of what he wanted to be tested, photographs, in and of
themselves, do not necessarily reflect the existence of biological material and such
tender is not a clear articulation of what specific biological material Solis-
Gonzalez wanted to be tested for DNA.
The mandamus record before this Court is simply devoid of a specific
.
request by So lis-Gonzalez identifying as-of-yet untested biological material
sought to be tested. In the absence of such a request, the State was not required to
rebut any presumption that certain biological material constituted biological
evidence that is required to be tested because So lis-Gonzalez never actually made
such a request identifying any specific biological material, nor can the trial court
determine that there exists biological material that constitutes biological evidence
that is required to be tested under subsection (i).
Rather than simply articulate what specific untested biological material he
wanted to be tested, So lis-Gonzalez attempted to bootstrap his entitlement to DNA
testing of biological evidence off the State's own initial broad request for DNA
testing and now complains that the trial court violated a ministerial duty by
refusing to delay the trial until after the DPS lab had completed the testing based
40
• •
on the State's initial request. So lis-Gonzalez was afforded an opportunity dur~g
and after the pretrial hearing to make a specific request of what biological material
he wanted to be tested, but the record does not reflect what request, if any, was
made. Even now, Solis-Gonzalez has not identified in his mandamus petition
what specific biological material he wants tested.
In sum, the trial court's initial order granting the State's broad request for
DNA testing did not constitute a determination by the trial court that the evidence
the State, on its own initiative, sought to test was biological evidence required to
be tested under subsection (i). Nothing in article 38.43 then prevented the trial
court from later holding a hearing pursuant to subsection (j) to ensure that
biological evidence required to be tested under subsection (i) would in fact be
tested prior to trial, notwithstanding any ancillary DNA testing by the State on
other evidence in its possession.
And the mandamus record before this Court is devoid of a specific request
by So lis-Gonzalez for DNA testing of certain identifiable biological material that
has not yet been tested. Consequently, the trial court did not abuse its discretion
in ·determining that there existed no other biological evidence required to be tested
under subsection (i), and So lis-Gonzalez has thus failed his burden of proving that
41
• •
the trial court violated a ministerial duty by refusing to delay his trial. Solis-
Gonzalez's requested mandamus relief should be denied for this reason alone.
B. Where the State sufficiently rebutted any presumption that there
existed untested biological material that constituted biological
evidence required to be tested, the trial court did not abuse its
discretion, or violate a ministerial duty, in refusing to delay So lis-
Gonzalez's triaL
In, his mandamus petition, Solis-Gonzalez claims that at the pretrial hearing,
" ... no evidence was presented by the Real Parties in Interest/State to rebut the .
presumption that the biological material Relator/Defendant requested to be tested
constituted biological evidence that is required to be tested under subsection (i)."
See (relator's petition at 11); see also (relator's petition at 8- claiming that the
respondent trial court " ... reviewed no evidence to rebut the presumption that the
biological material that was requested to be tested constituted required testing
i
pursuant to Article 38.43(i) ... "). Solis-Gonzalez's claims are not supported by the
record; which reflects that the State presented sufficient evidence, in the forin of
'
DNA test results of all the significant items of evidence that had already been
tested, to rebut the presumption that there existed any other untested biological
material that goes to the issue of the identity of the perpetrator.
The plain language of article 38.43 indicates that biological evidence
required to be tested focuses only on that evidence that relates to the issue·of
42
• ••
identity. See art. 38.43(a); And, as previously mentioned, the legislative history
of the recent amendments to article 38.43 reflects that the Legislature imposed a
mandatory requirement of DNA testing of biological evidence in a death-penalty
case to ensure that the identity of the perpetrator would be unassailable and that
" ... only the guilty face[] execution." See HOUSE RESEARCH ORGANIZATION, BILL
ANALYSIS, Tex. S.B. 1292, 83rct Leg., R.S. (May 20, 2013).
Courts have generally held that the presence of a third-party's DNA on
evidence sought to be tested, without more, does not necessarily constitute
exculpatory evidence, particularly when it does not serve to explain away all of the
other evidence pointing to the defendant's guilt. See Prible v. State, 245 S.W.3d
466, 470 (Tex.Crim.App.) (holding that evidence of another person's DNA in
addition to the defendant's was not necessarily exculpatory evidence in light of the
additional evidence at trial that established the defendant's guilt), cert. denied, 555
U.S. 833, 129 S. Ct. 54, 172 L. Ed. 2d 55 (2008); Whitaker v. State, 160 S.W.3d 5, 9
(Tex.Crim.App.) (holding that testing of blood on the murder weapon would not
be exculpatory since the blood could have belonged to a co-conspirator or the
victim and because regardless of whose blood was on the rifle, other evidence at ·
trial established the defendant's guilt, including his statement to a co-conspirator
that he had "laid the hitch to rest."), cert. denied, 543 U.S. 864, 125 S. Ct. 194, 160
43
• ,
•
L.Ed.2d 106 (2004); Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim;App. 2002)
(holding that evidence of another person's DNA at the crime scene will not,
without 'more, constitute affirmative evidence of a defendant's innocence).
Likewise, reviewing courts have held that while the presence of a
defendant's DNA could indicate a defendant's guilt, the absence ofJ!NA would
not necessarily indicate innocence. See Rivera v. State, 89 S.W.3d 55, 60
(Tex.Crim.App. 2002) (holding that while the presence of the c?ild-victim'sDNA
under the defendant's fmgemails could indicate guilt, the absence of such DNA
would not indicate innocence).
At the pretrial hearing in this case, the State presented DNA results of
evidence already tested that shows that the identity of the perpetrator is So lis-
Gonzalez and that he cannot be excluded from any group of individuals
responsible for the killings. Specifically, the State presented DNA test results that
established that a combination of So lis-Gonzalez's and DeSantiago's blood was
found on at least three knives, apparently used as the murder weapons, recovered
from the scene of the murders. So lis-Gonzalez's blood was also found on items in
the Bengal Street home that would demonstrate that he was the individual who
murdered the three victims. For example, Solis-Gonzalez's blood was found on a
pair of girl's blue jeans in C.H 's bedroom where C.H was strangled to death, and
44
• •
his DNA W187 S.W.3d 455, 457-58
(Tex.Crim.App. 2005) (holding that undisputed assertions by counsel may be held
to have been adoptively admitted by the opposing party if ''the event [that is the
subject of those assertions] could not have happened without being noticed" and
''the assertions [are] of the sort that would provoke a denial by opposing counsel if
it were not true"); Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App. I996)
(''This Court accepts as true factual assertions made by counsel which are not
disputed by opposing counsel."). 7
The DNA test results presented to the trial court by the State thus far have ·
so almost conclusively established Solis-Gonzalez's identity as the individual
who, at the very least, murdered DeSantiago and Saldivar that it is unlikely that
there exists any other biological material that would serve to negate that proof. If
there is any such evidence, the record is devoid of any request by So lis-Gonzalez
to test that biological material. ·
7
As previously mentioned, while Sobs-Gonzalez admitted to tying thirteen-year-old C.H.
up inL.S.'s bedroom, he denied killing her. (State's Appendix Bat 11).
46
• •
But even if So lis-Gonzalez had requested the testing of specific biological
material, he would have been hard-pressed to demonstrate how that evidence, in
light of the strength of the State's proffer, would have served to negate hisidentity
I
as the killeL, As previously discussed, the presence of third-party DNA on other
evidence would not serve to exculpate So lis-Gonzalez as the individual who
stabbed and beat DeSantiago and Saldivar to death, particularly where his own
blood was mixed with DeSantiago's blood on the knives found at the murder
scene of the murders, he had the victims' blood on his clothing and shoes, and he
confessed to murdering both DeSantiago and Saldivar and admitted tying up C.H
See, e.g., Prible, 245 S.W.3d at 470; Whitaker, 160 S.W.3d at 9; Bell, 90 S.W.3d
at 306. And if the evidence requested to be tested by a defendant does not serve to
exculpate him of the charged offense, his request for DNA testing of evidence that
will not prove to be fruitful can be nothing more than an attempt to unreasonably
delay his capital-murder prosecution.
For all the foregoing reasons, the State sufficiently rebutted any
presumption that there existed untested biological material that constituted
biological evidence required to be tested. Consequently, the trial court did not
abuse its discretion in determining that there existed no other biological evidence
required to be tested under subsection (i), and So lis-Gonzalez has thus failed his
47
• •
burden of proving that the trial court violated a ministerial duty by refusing to
delay his trial. So lis-Gonzalez's requested mandamus relief should be denied for
this reason as well.
IV. Conclusion
The record reflects that, out of an abundance of caution, the State initially
made a broad request for DNA testing, which the trial court granted without
making any determination that that evidence constituted biological evidence
required to be tested. The record reflects that it was in response to this request for
testing by the State that the DPS lab requested additional time for DNA testing.
That the State exercised its right to test evidence in its own possession did not
prohibit it from later reassessing the necessity of testing all of the items it
originally submitted. Because the State and the defense did not come to an
agreement as to what items of evidence containing biological material constituted
biological evidence required to be tested, the trial court held a hearing, during
which the parties were permitted to litigate what biological material constituted
biological evidence required to be tested under subsection (i) of article 38.43. The
mandamus record is devoid of any specific request by So lis-Gonzalez to test
certain untested biological material. And the State sufficiently rebutted any
presumption that there existed any as-yet untested biological material that
48
• •
constituted biological evidence required to be tested. The trial court properly
'
exercised its discretion as the gatekeeper in determining whether there existed
biological material that constituted biological evidence required to be tested under
subsection (i), and the trial court did riot abuse its discretion in determining that no
such evidence existed under the facts of this case. For all the foregoing reasons,
So lis-Gonzalez has failed his burden of demonstrating his entitlement to the
requested mandamus relief, and his petition for writ of mandamus should be
denied.
49
• •
PRAYER
WHEREFORE, the State prays that this Court deny relator's application for
writ of mandamus.
Respectfully submitted,
JAIME ESPARZA
DISTRICT ATTORNEY
341h JUDICIAL DISTRICT
/s/ Lily Stroud
LILY STROUD
ASST. DISTRICT ATTORNEY
DISTRICT ATTORNEY'S OFFICE
201 EL PASO COUNTY COURTHOUSE
500 E. SAN ANTONIO
EL PASO, TEXAS 79901
(915) 546-2059 ext. 3769
FAX (915) 533-5520
EMAIL lstroud@epcounty.com
SBN 24046929
ATTORNEYSFORTHESTATE
CERTIFICATE OF COMPLIANCE
The undersigned does hereby certify that the foregoing document contains
11,367 words.
/s/ Lily Stroud
LILY STROUD
50
• •
CERTIFICATE OF SERVICE
The undersigned does hereby certify that on March 11, 2015, a cop~ of the
foregoing response to relator's Emergency Petition for Writ of Mandamus was
emailed, through an electronic-filing service provider, to relator's attorneys: Joe
A. Spencer, Jr., joe@joespencerlaw.com; and Joshua C. Spencer,
joshua@joespencerlaw .com.
The undersigned also does hereby certify that on March 11, 2015, a copy of
the foregoing response to relator's Emergency Petition for Writ of Mandamus was
hand-delivered to Respondent, Honorable Luis Aguilar, Judge, 243rct .District
Court, 500 E. San Antonio Ave., 9th Floor, El Paso, Texas 79901.
Is/ Lily Stroud
LILY STROUD
51
• •
APPENDIX- TABLE OF CONTENTS
Appendix A......................... State's Notice to Seek the Death Penalty
Appendix B.............. Reporter's Record of October 2, 2014, pretrial hearing
Appendix C.. . . . . . . . . . . . . . . . . . . . . . . . . . . Trial court's October 6, 2014, letter
Appendix D ..... ·. . . Notice of Filing of Documents for Clarification of Record of
Article 38.43 Hearingon October 2, 2014
Appendix E............. State's chart of DNA results and hand-delivery receipts
Appendix F ............. May 9, 2013, DPS Forensic Biology ·Laboratory Report
Appendix G................... August 12, 2013, DPS DNA Laboratory Report
Appendix H ......... April29, 2014, DPS Supplemental DNA Laboratory Report
Appendix I. .............. June 13, 2014, DPS Supplemental Forensic Biology
Laboratory Report
Appendix J. .............. June 17, 2014, DPS Supplemental Forensic Biology
Laboratory Report
Appendix K................ ,July 17, 2014, DPS Supplemental Forensic Biology
Laboratory Report
Appendix L. .......... September 19, 2014, DPS Supplemental Forensic Biology
Laboratory Report
52
OF TEXAS
GONZALEZ
STATE'S NOTICE TO SEEK THE DEATHPENALTY
now the State of Texas, by and through the undersigned District Attorney, and
hereby gives notice to this Honorable Court, and to the Defendant and his counsel in the above-
ifconvicted of the offense of Capital Murder, the State of Texas will seek the
death penalty against the Defendant herein.
Respectfully submitted,
_ja..:.o<£.~
JAIME ESPARZA
Dis£rict Attorney
State Bar No. 06666450
500 E. San Antonio, Suite 201
El Paso, TX 79901
Ph. (915) 546-2059
Fax (915) 533-5520
CERTIFICATEOF SERVICE
certifY that a true and correct copy of the foregoing STATE'S NOTICE TO SEEK THE DEATH
above-styled callse was delivered to Mr. Joe Spencer, Attorney for the Defendant, on this the .Q_
12.
j````
JAIME .ESPARzA~ .. y
District Attorney
• • 1
1 REPORTER'S RECORD.
TRIAL COURT CAUSE NO. 20120D04103
2 VOLUME 1 OF 1 VOLUMES
3
4 THE STATE OF TEXAS ) IN THE DISTRICT COURT
)
5 vs )· EL PASO COUNTY, TEXAS
)
6 LUIS SOLIS GONZALEZ ) 243RD JUDICIAL DISTRICT
7
8
9
10 **************************
11 PRETRIAL HEARING
12 **************************
13
14
15 On the 2nd day of October 2014, the following
16 proceedings came on to be heard in the above-entitled and
17 numbered cause before the Honorable Luis Aguilar, Judge
18 Presiding, held in El Paso, El Paso County, Texas.
19 Proceedings reported by Machine Shorthand.
20
21
22
23
24
25
Andrea Quezada, CSR
243rd District Court
• • 2
1 APPEARANCES
2 DENISE BUTTERWORTH
Assistant District Attorney
3 SBOT No. 24012368
500 E. San Antonio, Room 201
4 El Paso, Texas 79901
(915) 546-2059
5
ATTORNEY· FOR THE tSTATE
6
JOE AURELIANO SPENCER
7 SBOT NO. 18921800
JOSHUA SPENCER
8 SBOT NO. 24067879
1009 Montana Ave.
9 El Paso, Texas 79902
(915) 532-5562
10
ATTORNEYS FOR DEFENSE
11
12 CHRONOLOGICAL INDEX
VOLUME 1
13
Thursday, October 2, 2014
14 Page Vol.
Case called/announcements of counsel 3 1
.15 Argument by Ms. Butterworth regarding 38.43 3 1
16 State's Witnesses Direct Cross Voir Dire Vol.
Nicholas Ronquillo 29 35 1
17
Response by Mr. Spencer 36 1
18 Response by Ms. Butterworth 40 1
Response by Mr. Spencer 45 1
19 Issue of Speedy Trial 46 1
Response by Mr. Spencer 47 1
20 Response by Ms. Butterworth 47 1
Court Reporter's Certificate 53 1
21
22
23
24
25
Andrea Quezada, CSR
243rd District Court
• ------~·~---------------
3
1 (Open court; Thursday, -October 2, 2014; defendant
2 present.)
3 THE COURT: The Court calls the lawsuit styled
4 'the State of Texas versus Luis Solis-Gonzalez, 20120004103.
5 Announcements of counsel.
6 MS. BUTTERWORTH: Denise Butterworth on behalf of
7 the State, Your Honor. The State is ready.
8 MR. SPENCER: Good morning, Your Honor. Joe
9 Spencer on behalf of Mr. Gonzalez, and we're ready.
10 THE COURT: Good morning, sir.
11 We're here on a pretrial hearing. I sent you-all
12 a letter. The issue that I'd like to address by both counsel
13 this morning is the applicability of 38.43, code of criminal
14 procedure.
15 Says the State of Texas?
16 MS. BUTTERWORTH: Your Honor, for purposes of the
17 hearing this morning, if I may on the record just very briefly
18 so that we are on the same page as to exactly what we're
19 attempting to do this morning. My understanding from the Court
20 is that we're going to have a discussion regarding 38.43, which
21 is the new law that the state legislation has passed that has
22 gone into effect on this particular death pen~lty case.
23 I believe -- and this is where Mr. Spencer can
24 correct me if I incorrectly summarize his position. But we are
25 here before you today because under 38.43, there are provisions
Andrea Quezada, CSR
243rd District Court
• • 4
1 that would allow the Stat~ and the defense.to come together to
2 have a discussion or to talk about whether there could be an
3 agreemerit on which ~terns ultimately to send to DPS for
4 testing -- for DNA testing in this particular case.
5 Mr. Spencer, on behalf of the defendant, is in
6 the position that he would like each and every piece of evidence
7 that was collected by law enforcement in this particular case to
8 be tested or possibly screened to see if it's possible to be
9 tested for DNA testing, that in this case, there is not an
10 agreement as to specific pieces of evidence to test, that the
11 defense is asking that all evidence that contained biological
12 material be tested or screened for DNA.
13 And let me just pause right there to get an
14 affirmation that I am· correctly summarizing the defendant's
15 position in this particular case right now for this hearing.
16 Is that correct, Mr. Spencer?
17 THE COURT: Ms. Butterworth, direct comments to
18 the bench, please.
19 MS. BUTTERWORTH: I'~ sorry. That•s·my
20 understanding of the defense and why we're here.
21 The State's position
22 THE COURT: Let me interrupt you if you don't
23 mind.
24 Mr. Spencer, before we progress here, is that an
25 accurate assessment of your position?
Andrea Quezada, CSR
243rd District Court
• • 5
1 MR. SPENCER: I thi'nk that's ·skeletally accurate.
2 It's accurate, Your Honor. It's hot completely all-encompassing
3 on my position. But so far, she has not articulated anything
4 that is not accurate.
5 THE COORT: Thank you.
6 You may proceed, ma'am.
7 MS. BUTTERWORTH: In· this particular case,
8 Your Honor, when the State reads the st~tute, I read it to say
9 that if we cannot come to an agreement -- and in this particular
10 case, we have submitted every single piece of evidence that
11 contains biological material. We have submitted that physical
12 eviden~e to DPS for testing. But it is our position that under
-
13 this statute, if the State and the defense cannot come to an
14 agreement, that the statute requires us to come before you for
15 the Court to determine which pieces of evidence should be tested
16 for DNA or should be submitted.
17 Currently, we have submitted everything. What I
18 would like to do this morning is, for the record, to make sure
19 the record is complete depending on where this goes, I would
20 like to submit to the Court the lab tests that have currently
21 been generated by DPS. And they have been turned over to the
22 defense. And we've got -- as of today's date, we have a lab
23 report from DPS from May 9th; 2013, August 12th of 2013, April
24 29th of 2014, June 13th of 2014, June 17th of 2014, and July
25 17th of 2014, and November 19th of 2014.
Andrea Quezada, CSR
243rd District Court
6
1 I'd like to submit to the Court these DPS
2 reports, the corresponding documentation that the defendant has
3 received copies of all of these lab reports. And then I have
4 also created a spreadsheet for the Court -- and I'll tender a
5 copy to the defense -- oi so far the DNA results that have been
6 yielded from the testing that's been done as of todayLs date ..
7 If I may approach?
8 THE COURT: Yes, ma'am.
9 Ma'am, did you say "November 19th of 2014"?
10 MR. SPENCER: That's what she said, Your Honor.
11 MS. BUTTERWORTH: I meant September. If I
12 meant September of 2014 for the last lab report.
13 THE COURT: All right. Okay.
14 Mr. Spencer, do you have a copy of these
15 exhibits?
16 MR. SPENCER: I have a copy of what she just now
17 handed me, Your Honor. I do have -- if I understand the Court's
18 question, I do have lab reports from June 13th of 2014, June
19 17th of 2013, July 7th of 2014, September 19th of 2014. I don't
20 believe I have an April 29th of 2014, an August 12th of 2013, or
21 May of 2013, at least that I am aware of. Those three~ I don't
22 believe I have.
23 MS. BUTTERWORTH: And to cover our bases, I have
24 hand delivery slips that have been signed by the defense for all
25' of these lab repbrts.
Andrea Quezada, CSR
243rd District Court
• • 7
1 THE COURT: Let me do this real quick.
2 Mr. Spencer, we're going to make a complete copy
3 of what's been tendered to the Court, and you can review it.
4 That will be your copy.
5 MR. SPENCER: Thank you, Your Honor.
6 THE COURT: All right.
7 MS. BUTTERWORTH: What I've also gorie through and
8 done for purposes of this hearing is, every single piece of
9 evidence that was collected due to the investigation of this
10 particular case that has been submitted to DPS was photographed.
11 And so for the Court's perusal, I'm assuming in the next coming
12 days when the Court is making the decision, I've got all of the
13 photographs of every sin~le piece of evidence that waa collected
14 and has· also been submitted to DPS for testing. So when we
15 statt referring to some of these pieces of evidence when we
16 start to get into a little bit of the facts of the case, all of
17 the photographs are here. There's a photograph of each piece of
18 evidence.
19 And for the record, for example, JE02 -- JE02,
20 when collected by law enforcement, it's marked and given that
21 identification number. JE02 is, in this particular case, a
22 kitchen knife that's found on the kitchen counter. So at any
23 given time when the Court's lobking at any of ihese lab reports
24 or looking at the results or the DNA results yielded, there is a
'·
25 photograph of JE02 of what that item is and where it'~ found in
Andrea Quezada, CSR
243rd District Court
8
1 the house. And I've got all the photographs of each piece of
2 evidence that was collected.
3 And for the Court to look at also, I've got the
4 crime scene video that law enforcement does at their crime
5 scenes where they basically take a camcorder or a video recorder
6 and they record an entire crime scene. In.this particular case,
7 .it's the house on Bengal Street. And so for the Court to
8 understand basically what the layout is of this particular case
9 of the crime scene as far as what this house looked like or what
10 was going on~ I've also got the videotape of that.
11 And so I've got all the photos and then a
12 complete copy of the videotape for the Court to look at the
13 house. And that's all available for the Court to look at when
14 determining if there is an argument as to items that are
15 absolutely crucial or that the def~nse is asking to be tested.
16 We-will have a photograph corresponding to what that item is,
17 where it's found within the house.
18 If I may briefly direct the Court to the
19 spreadsheet that I've tendered to the defense. Does the Court
20 have the spreadsheet?
21 THE COURT: No, I don't.
22 MS. BUTTERWORTH: I think we're making a copy of
23 it right now.
24 While we're waiting for the spreadsheet and for
25 purposes of the record, Judge, I'd like to give a brief summary
Andrea Quezada~ CSR
243rd District Court
• • 9
1 of what .is h~ppening at this particular house on Bengal Street,
2 the crime scene that law enforcement is investigating.
3 They are -- on May 31st of 2012, El Paso Police
4 Department is dispatched out to 1594 Bengal, number G [sic].
5 That's located in El Paso County in the State of Texas. When
6 officers arrive and ultimately when the scene is sealed and
7 en6losed, they find three victims inside of that house found
8 dead.
9 The first victim is Eric Santiago -- DeSantiago,
10 and he is found dead inside of the kitchen with his face wrapped
11 with duct tape. There are burns to his chest that are believed
12 to have been caused by, based just on the scene, oil that was
13 heated up in the kitchen. He's got those burns to his chest,
14 and he has numerous stab wounds and blunt force injuries to his
15 head.
16 The second victim is Marysol Saldivar. She is
17 found in the living room with blunt force trauma injuries to her
18 head. And the third victim is clllllllll Hill who is a
19 13-year-old little girl who is found in her upstairs bedroom --
20 it's a pink bedroom-- in her bed covered up, tucked into her
21 bed wearing only a T-shirt and underwear. And there is a slight
22 ligature mark to her neck upon closer examination.
23 The cause of death in these particular cases,
24 after an autopsy was conducted, was that clllllllll H . , the
25 13-year-old little girl found in her bed, died from the ligature
Andrea Quezada, CSR
243rd District Court
• • 10
1 strangulation around her neck. And then Marysol Saldivar,
·.,
who
2 was found in the living room, her cause of death was both stab
3 wounds and blunt force trauma to the head, which is also the
4 same cause of death for the male, DeSantiago, found in the
5 kitchen.
6 And as a brief continuous summary, the defendant
7 did turn himself in to law enfdrcernent. He met them. He had
8 originally gone to Mexico where he took his four-year-old little
9 boy who was present for all of this. He was at the scene. He
10 had been with his mother, Marysol Saldivar, when she got horne.
11 The defendant had taken that little boy, his biological son,
12 with him after he left the Bengal ho0se, had gone to Mexico~
13 werit o~er to his parents' house, who live in Mexico, delivered
14 the four-year-old little boy, and then left. He ultimately told
15 his parents what he did.
16 The dad was cooperative with law enforcement and
17 met law enforcement here in El Paso, turned over the little boy,
18 explained to law enforcement that his son did tell him that he
19 had done this. And then the defendant met law enforcement at
20 the border and turned himself in.
21 Once h~ was in the United States, he was taken
22 and interviewed at the CAP offices on Raynor, where he gives a
23 statement where he admits that oh that day, he rode his bicycle
24 over to the victim's house, broke into the house at about ten in
25 the morning and waited for them to get horne later that day. I
Andrea Quezada, CSR
243rd District Court
·~------~·~-------
11
1 believe he said that the first person to g~t into the house was
2 Mr. DeSantiago, who arrived at ~bout 4:30. Then he says
3 clllllllll Htll arrived second, and Marysol Saldivar.arrived
4 third.
5 He in his statement, he admits to killing.
6 Mr. DeSantiago and Ms. Saldivar, but says he doesn't remember or
7 has memory issues regarding the incident and doesn't remember
8 anything regarding clllllllll H4lllc I think he ultimately
~ denies killing her, but he does confess to tying her up during
10 this process upstairs and having her be tied up in this little
11 boy Llll slllllllll 'room, the four-year-old.
12 Ultimately, as far as evidence is concerned in
13 this case, the house itself containing all of the evidence --
14 that's part of the evidence in this particular case. The four
15 year old, when he's turned over to the police by his
16. grandfather, his clothes are taken also because there appears to
17 be bloodstains on some of his clothes.
18 And then the defendant -- and I forgot to mention
19 this. When he left the house on Bengal Street, he took Marysol
20 Saldivar's truck. That's how he was able to go over into
21 Mexico. So that truck was recovered. And then so whatever
22 evidence that is contained or found in that truck is also pieces
23 of evidence that were collected from the El Pasd Police
24 Department. I believe there's some blobd swabs and pieces of
25 blood found in the truck as well. And then there was blood
Andiea Quezada, CSR
243rd District Court
• • 12
1 found on the child's clothing.
2 So that's a brief -- for purposes of this record,
3 those w6uld be the three areas that evidence is being taken from
4 regarding this investigation; the house on Bengal, the little
5 boy's clothes when he's turned over, the truck that's found in
6 Mexico and taken -- brought back to the United States; And then
7 also when the defendant turned himself in, the El Paso Police
8 Department collected his clothing, which he was wearing. And
9 .that -- so those are pieces of evidence as well. And then
10 anything evidentiary-wise that is collected from all three of
11 the victims during their autopsies, their clothes, fingernail
12 scrapings, those type of things that were collected during the
13 autopsy are also pieces of evidence that have all now, at this
14 point while we're looking at 38.43, have been turned over to DPS
15 for DNA testing.
16 With that summary, I'd like to go through so far
17 the DNA results that have been yielded from some of these items
18 that have been tested by DPS. And so these are the results that
19 we have as of today's date, which is October 2nd of 2014. I've
20 created this spreadsheet to give the Court some information so
2i that the Court can look through the lab results. But I've taken
22 what the DNA results are from the lab reports and I've put them
23 in the spreadsheet.
24 I can tell the Court that when we were looking
25 initially at looking at what to turn over to DPS for DNA
Andrea Quezada, CSR
243rd bistrict tourt
• ·~----
13
1 testing, the idea wa~ to make sure that any other pos~ible
2 defendant could be excluded; And that obviously -- the other
3 part of at least -- and that would be a very -- I would.say that
4 an important goal of the DPS testing was to eliminate any other
5 suspects or defendants in this particular case.
6 And then the other·reasons for the DNA testing
7 was to strengthen the State's case to make sure that we would
8 have, hopefully, ideally, the defendant's blood or DNA inside of
9 the Bengal house. And I forgot to mention that when the
10 defendant turned himself in and his clothes were collected by
11 CAP, there were also photographs, and I've got them included for
12 the Court to look at. There were photographs taken of his hands
13 where the defendant has a couple of, for lack of a better
14' medical term, cuts on some of his hands. And in his statement
15 to the police department, he explained that at some point during
16 all 6£ this, he h~d gotten cut by the knife that was -- that he
17 used or that was involved in at least the victim of DeSaritiago
18 and Ms. Saldivar. And so the photographs of when·he turned
19 himself in show that he's gbt some of these wo~nds or these cuts
20 on-his fingers.
21 One of the goals of the DNA testing, at least
22 from the State's position, was to try to put the DNA of the
23 defendant ihto this crime ~cene and then also have the victims'
24 DNA be found on the defendant himself, from the clothes -- and
25 when the Court looks at the photos, you can see that the jeans
Andrea Quezada, CSR
243rd District Court
• ----~-----------
14
1 he's wearing when he turned himself in are very visibly covered
2 in blood.
3 So I woulq like to go through what the DNA has
4 yielded so far -- the testing has yielded so far on some of
5 these various items that have been submitted. In my
6 spreadsheet, I have given the item number, which will have
7 photographs to correspond to, and then what the DNA results
8 yielded.
9 JE02, Your Honor, is a kitchen knife that was
10 found on the kitchen counter at the home on Bengal Street. And
11 there was a swab taken from both the handle and the blade that
12 come back positive for blood. And then when the DNA testing is
13 conducted, the DNA matches -- on JE02 from the handle, it's a
14 combination or a mixture of DeSantiago and the defendant. On
15 JE02, the blade, the DNA results yielded a match to DeSantiago.
16 And then it read that it was a combination. And that second
17 part of that mixtur~, the data was low level data, so no
18 comparison could be made.
19 JE69 is a knife that is found in the upstairs
20 restroom. You'll see a photograph of it that it's found in the
21 drawer in the upstairs restroom with visible blood on it. JE69,
22 when there was a swab taken f_rom the blade, the DNA test results
23 yielded that it belongs to DeSantiago and the defendant. A swab
24 from the handle of JE69, the same knife, yielded,DNA results
25 from DeSantiago and the defendant.
Andrea Quezada, CSR
243rd District Court
• • 15
1 JE04 is a third knife that's· found" in this crime
2 scene on Bengal Street. It is a broken knife. The handle of
3 the knife was found on the kitchen floor, and the blade of that
4 knife is found in the kitchen sink. So JE04 is the handle that
5 was found oti the kitchen floor that yielded a result of
6 DeSantiago and the defendant.
7 JE38, the blade of the knife found in the kitchen
8 sink, was DeSantiago and the defendant. .I
9 There were a pair of blue jeans, girl blue jeans
10 that were found in C _room, JE72, that had apparent
11 blood on them, and that blood comes back to the defendant.
12 JE68 is a shoelace that is found in the same
13 drawer that the bloody kitchen knife was found in in the
14
15
16
upstairs restroom. It's a pair of black shoelaces.
defendant, in his statement, says that he tied up
H.using these shoelaces.
c- The
When they are tested, there is a
17 DNA profile mixture positive for blood. But due to the
18 potential number of contributors, no interpretations were made.
19 Item number 5208670 -- and that's how it was
20 called. It wasn't given the initialling and a number. That's a
21 tennis shoe that is taken from the defendant when he turned
22 himself in and was at CAP. There was apparent blood on his
23 tennis shoe t~at he was wearing that they took from him frbm
24 CAP. And the DNA results on that yielded beSantiago and
25 Saldivar. So we have two of the three victims' blood coming
Andrea Quezada, CSR
243rd District Court
• • 16
1 back on the defendant's -shoe that he was wearing when he turned
2 himself in and was taken into custody.
3 BM03 is the black T-shirt from the defendant also
4 taken when he was in custody. That DNA comes back to the
5 defendant.
6 MM01 is a Mickey Mouse baseball cap that was
7 collected from the four-year-old little boy, LJII AJIII
8 slllllll, when his grandfather turned him over to police. There
9 was apparent blood on that Mickey Mouse baseball cap, and that
10 blood was tested, tested positive for blood. And that blood
11 matches his mother, Marysol Saldivar.
12 There was a bloody piece of tissue found inside
13 of the Nissan Titan, which is the truck that belonged to
14 Ms. Saldivar that the defendant drove away from Bengal Street to
15 go to Mexico. That's JE113. That was found inside of the
16 truck. And that blood comes back to -- or that DNA comes back
17 to DeSantiago.
18 There were again these blue jeans that I'm
19 referencing that the defendant had on him when he's interviewed
20 or taken into custody at CAP. 'It's item BM01. That comes
21 back -~ that blood from the defendant's jeans comes back to a
22 mixture of DeSantiago and Ms. Saldivar.
23 JE17 is a piece of toilet paper. And when the
24 Court looks at these photographs that I'm producing, there are
25 various pieces of tissue. Some of them are just tissue, and
Andrea Quezada, CSR
243rd District Court
• • 17
1 some of them are what law enforcement is describing as like a
2 makeshift finger cast from -- we are deducing that when the
3 defendant cut his finger -- and it's corresponding to tha cut on
4 his finger in this photograph when he is taken into custody.
5 And he said it's bleeding a lot. Around the house, there are
6 these makeshift finger casts that ke~p falling off. So I guess
7 he keeps putting new ones on. So some of those are tested. And
8 then others aren't so obviou~ as finger ~asts, but they're just
9 pieces of tissue with blood on them around the house at Bengal
10 Street.
11 JE17, if you'll look at the photograph, is a
12 piece of toilet paper with apparent blood on it that is found on
13 top of the victim as she is laying there on the living room
14 floor. And for .lack of a better word, it's being described
15 found on top of her crotch area. But if you look at the photos,
16 that is where the toilet paper is found. It's right on top of
17 her. And that DNA comes back to the defendant.
18 JE24 is a piece of duct tape that is found in the
19 upstairs bathtub in the restroom where the bloody knife was
20 found and -~ in the drawer along with the shoelaces. That piece
21 of duct tape was examined, and we know just from the scene
22
23
24
And upon closer examination of C - H-
itself that Mr. DeSantiago was found duct taped in the kitchen.
the 13 year old,
you can see remanence of duct tape on her face on her check if
25 you look at the photographs. And you can see due~ tape on
Andrea Quezada, CSR
243rd District Court
• 18
1 her -- I believe it's her ankles and her hands, a little bit of
2 remanence of how it w~s taken off, but it left that duct tape
3 glue.
4 JE24, there's a piece of duct tape that's found
5 in the upstairs bathtub that comes back to DeSantiago and
6 Ms. Saldivar.
7 JE20, there's another piece of duct tape with.
8 toilet paper found in a hamper. Stain 1 of that duct tape comes
9 back,to the defendant and Marysol Saldivar. Stain 2 of that
10 duct tape comes back to a mixture of clllllllll Hill,
-
11 Mr. DeSantiago, the defendant, and Ms. Saldivar. So all four of
12 them are on as a mixture on that stain 2 of that duct tape. And
13 then stain 3 of the duct tape of JE20, item JE20, there was no
14 DNA profiles obtained.
15 There was also some duct tape found, JE30. That
16 duct tape is found in the little boy LJII A~ room. The DNP).
17 results of that come back to DeSantiago and the defendant. JE28
18 is another piece of duct ~ape that's found in a child's bag, a
19 kid's bag, .also inside of LJII A~ room, the little boy.
20
21
22 girl, and the four-year-old little boy,
H-
And the DNA results on that one come back to the defendant,
Mr. DeSantiago, Ms. Saldivar, Ms. the 13-year...;.old little
LJII sllllllll So we
23 have five people in that mixture of that piece of duct tape
24 found in the little boy's,room.
25 JE24 is a makeshift finger cast that ~s found
Andrea Quezada, CSR
243rd District Court
• • 19
1 next to a vacuum outsi~e of the upstairs restroom. The DNA
\
2 results yielded on that come back to the defendant and
3 Mr. DeSantiago.
4 JE66 is a finger splint, another one of these
5 makeshift finger cast splints that is found next to the bed of
6 c room -- C - H~ bed in her room. And
7 that comes back to the defendant.
8 There is a tennis shoe that has no shoelaces in
9 it, a black Jordan tennis shoe, JE70, that is found in LJII
10 AJIII S - room, the little boy's room, with an apparent
11 bloodstain on the tennis shoe that's missing the shoelaces, and
12 that blood comes back to DeSantiago.
13 There is JE22. It's a ~hite T-shirt that is
14 found in the upstairs restroom. And the DNA results on that
15 come back to Mr. -- with apparent blood, and they come back to
16 blood matching Mr. DeSantiago. The collar of that same shirt
17 was tested, and that came back to -- hang on just a second on
18 this one because I think that came back to a mixture. Let me
19 look.
20 THE COURT: Ms. Butterwoith, is the DPS lab
21 representative here? i
22 MS. BUTTERWORTH: Yes, Your Honor.
23 THg COURT: If he would assist you, he can sit ~t
24 counsel table with you.
25 MS. BUTTERWORTH: Okay. I'm going to come back to
Andrea Quezada, CS~
243rd District Court
• ·~----
20
1 JE22 because I had my secretary type up from my notes for this
2 chart, and I think that the chart is let me just -- I can
·3 probably-- I'll come back to that one, Judge. So let me hold
4 off on the record.
5 THE COURT: Ms. Butterworth
6 MS. BUTTERWORTH: Okay. So on JE22, I'm going to
7 need to amend my chart. JE22 is the collar of the T-shirt of
8 that white shirt that's found on the restroom floor. And it
9 comes back as a mixture. My chart says "DeSantiago" but should
10 read "the defendant." If we can -- and I can submit a new
11 chart.
12 THE COURT: Let me make sure I'm with you. JE22?
13 MS. BUTTERWORTH: Correct. There were different
14 swabs taken from that piece of clothing. It's a white T-shirt.
15 One of the stains is tested, an apparent bloodstain, and it
16 comes back to DeSantiago.
17 THE COURT: Okay.
18 MS. BUTTERWORTH: The collar of that shirt is
19 tested, which is traditionally done to try to determine the
20 'wearer of the shirt. So on JE22, when the collar of that shirt
21 is tested, it comes back consistent to the defendant. It's a
22 mixture, and the defendant is identified as one of the
23 contributors.
24 THE COURT: "DeSantiago" is incorrect on the
25 collar of the T-shirt?
Andrea Quezada, CSR
243rd District Court
• • 21
1 MS. BUTTERWORTH: That is correct. It should
2 read "defendant."
3 MR. SPENCER: Your Honor, from which report? May
4 I inquire as to on which report --
5 THE COURT: That's the last item on the --
6 MR. SPENCER: I see that on this spreadsheet.
7 I'm just wondering-- she's referring to the DPS lab report.
8 I'm wondering what date.
9 MS. BUTTERWORTH: April 29th of 2014.
10 THE COURT: Thank you.
11 MS. BUTTERWORTH: There were also some white
12 socks that were inside or along with that T-shirt or shirt that
13 was collected under JE22. Those white socks are tested, and
14 they yield a DNA result coming back to Mr. DeSantiago.
15 JEA3 is a swab that was taken fiom a milk
16
17
18
room, L.
gallon-- a gallon of milk that was found in the little boy's
A~ room. If you look at the photographs, there
an apparent bloodstain on the gallon of milk. And that
19 yielded-- it says, "No DNA profiles obtained." It tested
20 positive for blood, but no DNA profiles obtained.
21 JE99 is the duct tape removed from
22 Mr. DeSantiago's head, and that's coming back belonging to
23 Mr. DeSantiago. JE99, there was also a rag that was in the duct
24 tape that was removed from his head. That is yielding a DNA
25 result matching Mr. DeSantiago.
Andrea Quezada, CSR
243rd District Court
--j·-·- • 22
1 The fingernail clippings from the autopsy were
2 taken, JE94 and JE95. The fingernail clippings from
3 Mr. DeSantiago during the autopsy, when they are examined, they
4 are both coming back matching Mr. DeSantiago.
5 JE78 is the right fingernail clippings of
6 clllllllll Htll that were taken during her autopsy. The DNA
7 yielded from her right fingernail clipping on JE78 is yielding a
8 mixture belonging to the defendant and Ms. H4lll_
9 The left shoe taken from the defendant from when
10 he was at CAP, item number 5208670, is yielding a result
11 belonging to Mr. DeSantiago.
12 BM03 is the black T-shirt from the defendant.
13 Also, there's a blood stain matching Ms. Saldivar. Fingernail
14 clippings were taken of Marysol Saldivar, JE57, right and left
15 fingernail clippings, and they are both matching Ms. Saldivar.
16 And then BM01, the stained jeans that were taken
17 from the defendant while he was at CAP, one of the stains is
18 matching coming back to Mr. DeSantiago.
19 Some of these items, there were multiple stains
20 and multiple swabs taken from these various pieces of evidence.
21 And so those are all individual swabs or stains that are in the
22 process of being tested, and we're waiting for DNA results.
23 At this point, Mr. Spencer and I have asked
24 Nicholas Ronquillo is here from DPS. And very briefly, I have-
25 inquired as to where they ar~ in the process of testing, and he
Andrea Quezada, CSR
243rd District Court
·-- ------------~.llr-----------------
23
1 has the number.
2 Do you know how many items were submitted to you
3 in the lab?
4 MR. RONQUILLO: So far --
5 THE COURT: Ms. Butterworth, do you want him from
6 the stand?
7 MS. BUTTERWORTH: No, I'll just proffer, if it's
8 okay.
9 THE COURT: That's fine.
10 MS. BUTTERWORTH: There were a total of 206 items
11 trying to comply with this new article, article 38.43, because
12 there was no initial agreement made by the State .and the
13 defense. 206 items have been submitted to DPS for this type of
14 testing. Mr. Ronquillo has represented to myself and
15 Mr; Spencer this morning that they are about halfway done at
16 this. point and that he believes th.at they would be able to be
17 finished with all of the DNA testing and have all of those
18 results by June of 2015.
19 It is the State's contention, based on the
20 summaries of the lab reports given and the DNA results that have
21 been yielded so far -- and that is why I've got photographs of
22 every single piece of evidence that has been turned over from
23 the Vqrious sources that I've explained or outl~ned earlier in
24 the argument, plus a copy of the video crime scene of the entire
25 house. There has b~en nothing coming back that. has yielding
Andrea Quezada, CSR
243rd District Court
• ·-- 24
1 anything other than what we believe t6 -- that the evidenc~ is
2 showing so far, that the defendant was there in this house
3 acting alone and committing this particular capital murder.
4 We've got the victims' DNA coming back on him,.on
5 his clothes that he's wearing, his shirts that he's wearing. We
6 have his DNA inside of the house coming back on various items to
7 include some of the kniv~s and the tissue that's being found
8 with the apparent blood on them.
9 It's the State's position at this point that as
10 we stand here today that the DNA has flushed out what is going
11 on in this particular case and that the DNA results have
12 yielded -- that the people that we know are involved, thereLs
13 been nothing yet that has come back at any of the relevant biood
14 from the knives or from the crime scene coming back to an
15 unknown, that all of the DNA so far in what has come back is
16 yielding who we know is involved in this case, from 'the
Clllllllll
17
18
19
defendant to Ms. Saldivar to Mr. DeSantiago to
and to the four-year-old boy that was involved, L. A~.
It is the State's position that 38.43 does not
Htll
20 read unequivocally that mandatorily in a death penalty case
21 every single piece of evidence that·contains biological material
22 be tested. That is the State's position, and I believe that's
23 partially why we're at this hearing today. We do not contend or
24 feel that when we read the statute that that's what it's saying.
25 We believe the statute was designed -- and I will add my two
Andrea Quezada~ CSR
243rd District Court ·
• • 25
1 cents here -- that the part where the statute says for the state
2 and the·defense to come together to make an agreement as to what
j evidence ~hould be tested I believe was unrealistic on the part
4 of legislation because there is no doubt that Mr. Spencer is
5 going to fiercely defend a defendant in a death penalty case.
6 And he is not going to -- and I don't believe any criminal
7 defense attorney in the State of Texas is going. to come to an
8 agreement as to what.should be tested and that we just work
9 around this or work it out between the state and the defendant.
10 The defense -- the defendant is looking at the
11 death penalty in this case. And I don't believe that
12 Mr. Spencer would be alone. I think almost ~11 of the criminal
13 defense bar in the State of Texas who are looking at this
14 statute would never agree with the State of Texas as to what
15 pieces of evidence sh6uld be tes~ed~ And there was no doubt in
16 my mind th~t when we began this process, that Mr. Spencer's
17 answer would be, I want every single piece of evidence tested.
18 Because wh~t it in fact ends up doing is
19 partially, whether it's the motivation or not, the reality is
20 that this ends up significantly delaying the trial. We are in a
21 position now, since we had to turn over, based on this new
22 legislation, 206 pieces of evidence that were collected from the
23 various different sources of-this case to be tested by DPS.
24 When the statute was written, there was nothing -- there was
25 nothing dbne a~ far as the position of DPS. DPS now has 206
Andrea Quezada, CSR
243r~ District Court
26
1 pieces of evidence to test along with their other workload and
2 schedule.
3 There was nothirt~ taken -- there was no provision
4 that takes into account the personnel or the monetary expenses
5 or the overload that would occur to these various Texas DPS labs
6 that are also just attempting, along with the State, to comply
7 with this statute~
8 I believe that this statute was designed for the
9 Court to make a determination, based on the facts presented to
10 it, which items should be tested for DNA. And so I have
11 attempted to give the Court an idea of the DNA that has come
12 back so far. I've attempted to give the Court an idea of the
13 evidence that was collected in this particular case. I've done
14 so by providing all of the lab reports, my spreadsheet. And I
15 am tendering to the Court photogiaphs of every single piece of
16 evidence that was collected in this particular case and a
17 videotape of the house so the Court can look at the house in its
18 entirety.
19 We believe at this point that any significant
20 item that should be test~d for DNA has been tested so far. We
21 would argue against the position that 3B.43 requires a mandatory
22 no discussion, no-thought process look at what is relevant and
23 what is not relevant to be tested in a death penalty case. We
24 believe that the pieces of evidence in this particular case that
25 are relevant to be tested have been tested based on the DNA
Andrea Quezada, CSR
243rd District Court
• • 27
1 results th~t have been yielded so far. We believe that we .have
2 sufficiently complied with 38.43, and we're asking for the Court
3 to make a ruling basically that not every single piece of
4 evidence be tested for DNA.
5 THE COURT: Ms. Butterworth, let me ask you, how
6 was it determined what to submit to the lab? I.guess what I'm
7 looking for is a -- all -- one from each room or a blood sample
8 from each room? A splattering? Any -- the logic behind that.
9 MS. BUTTERWORTH: The logic -- so far, everything
10 has been turned over to DPS. But the logic is, we're in a
11 position that we're looking at ·what was collected by law
12 enforcement. And I'm not sure if I'm answering the Court's
13 question correctly. But the law states that it's evidence
14 containing biological material.
15 The argument could be made -- and I think this is
16 also something very important for the legislation to keep in
17 mind. The law says it's any piece of evidence that could
18 possibly contain biological material. Well, in this particular
19 case, when the Court looks at the photos and whoever ends up
20 reviewing this decision if we get there, looks at the photos,
21 you can see that a lot of these ite~s have very obvious blood
22 stains. Obviously, we're not scientists. But using our reason
23 and common sense and understanding of what occurs in that house,
24 there's ~ lot of obvious visible blood stains.
25 But then you start looking at, for example, a
Andrea Quezada, CSR
243rd District Court
• 28
1 cell phone that is found on top of the kitchen counter that has
2 no bloodstains. Well, there is an argument that could be made
3 that it could still contain biological evidence from epithelial
4 cells. We know enough to know that any time somebody touches a
5 piece of evidence or a piece of anything, the argument could be
6 made that they~ve left their DNA by means of leaving their
7 fingerprints or from the fingerprints, epithelial cells, like
8 something from their skin.
9 So when I sat there and looked at this in its
10 entirety trying to understand what we needed to do and knowing
11 that I would need to be prepared for an argument from the
12 defense, we submitted everything that could possibly be argued
13 that has biological evidence. So that cell phone is found on
14 the kitchen counter. It doesn't have obviou~ blood~tains; We
15 went ahead -``and I'm dealing with DPS, and they're asking for
16 guidance, but there's no blood on this. And I've told them,
17 "But it could theoretically contain biological evidence because
18 there could be epithelial cells left on it.''
19 THE COURT: Ms. Butterworth, is Mr. Ronquillo
20 here today?
21 MS. BUTTERWORTH: He is, Your Honor.
22 THE COURT: I would like for him to explain on
23 the record the July 5th, 2014 letter that he addressed. What
24 I'm looking for in particular is the time frames. In the
25 letter, he refers to projections as to. a completion date. I
Andrea Quezada, CSR
243rd District Court
• • 29
1 would like the record to reflect Mr .. Ronquillo's position.
2 MS. BUTTERWORTH: For clarification for the
3 record, it's a June 5th letter. I believe the·court said July,
4 but it's dated on my copy June 5th. And I would like to tender
5 a copy of that letter into this hearing so whoever reviews this
6 can understand where DPS falls in this particular issue, what
7 we're trying to deal withi 38.43.
8 THE COURT: I want a more thorough explanation of
9 constraints, issues, projections, etc.
10 MS. BUTTERWORTH: Would the Court prefer that he
11 take the witness stand?
12 THE COURT: Yes.
13 Sir, would you please raise your right hand?
14 (Witness sworn.)
15 THE COURT: Thank you.
16 Ms. Butterworth, and again, you understand what
17 I'm looking for.
18 MS. BUTTERWORTH: I know.
19 NICHOLAS RONQUILLO,
20 having been first duly sworn, testified as follows:
21 DIRECT EXAMINATION
22 BY MS. BUTTERWORTH:
23 Q. Mr. Ronquillo, at this point, if you could state your
24 full name ior the record.
25 A. My name is Nicholas Ronquillo.
Andrea Quezada, CSR
243rd District Court
• ·.....---------
30
1 Q. If you could briefly describe your position or your
2 title within the Texas Department of Public Safety.
3 A. I am the DNA section supervisor and technical leader
4 for the Texas Department of Public Safety crime lab here in El
5 Paso.
6 Q. If you could explain to us briefly your position with
7 DPS regarding this particular case, how it came to you, what
8 problems were presented. Specifically I'd like to talk to --
9 maybe we could start with -- and for the record, how many pieces
10 of evidence were initially submitted on this particular case?
11 Do you remember?
12 A. There were just a little over 30 initial items for DNA
13 analysis.
14 Q. Okay. So before the new law went into effect, the
15 State of Texas submitted to the Texas Department of Public
16 Safety 30 items -- various items that -- in an attempt to yield
17 DNA relevant -- pertinent DNA to the prosecution or the defense
18 in this case, 30 items were sub~itted. The l~w changed, and
19 then we ended up submitting a total, including I guess the first
20 30, a total of 206 items in this particular case; is th~t
21 correct?
22 A. There were an additional 156 items initially listed on
23 the submission form. However, that has grown to 206 with the
24 initial submission simply because, for example, a backpack was
25 listed. However, there were items within that backpack, and
Andrea Quezada, CSR
243rd District Court
• ·l-------
31
1 that's how that number has grown.
2 Q. Okay. And just for clarification for whoever reviews
3 this, is the backpack that you're referring ·to a little boy's
4 backpack that -was .found in the white Nissan truck?
5 A. No.
6 Q. A different backpack?
7 A. A different backpack that was found I believe in the
8 yard of the crime scene on Bengal Street.
9 Q. Okay. On the outside. And if we look at the
10 photographs, there's a backpack and a bicycle. The entire
11 bicycle -- if you look at the backyard, that's what's found in
12 the backyard of the Bengal Street residence. Is that what we're
13 referring to?
14 A. We are referring to the backyard of the Bengal Street
15 residence.
16 Q. So it's grown because an entire backpack was
17 submitted, and then you had to break down the components or the
18 different various things that were found inside?
19 A. That's correct.
20 Q. All right. Can you tell us the problems that DPS is
21 having in attempting to comply with 38.43 as it stands right
22 now, which is to test every sirigle piece of evidence that was
23 submitted to you from the El P~so Police Department?
24 A. So some of the challenges that the Texas Department of
25 Public Safety throughout the State as a whole, the challenge
Andrea Quezada, CSR
243rd District Court
• • 32
1 mainly is just the volume of eviden6e and to logistically
2 analyze that evidence within a reasonable amount of time.
3 Currently,. our policy for a homicide case that does not fall
4 under article 38.4~ is that we will only accept ten items of
5 evidence plus the known reference samples. So this is also a
6 policy in place just simply so we can limit the amount of items
7 that are being sub~itted and so we can reasonably get these
8 items analyzed in a reasonable amount of time.
9 So as you can imagine, 206 items are well above
10 those ten items that are currently in place in our policy. So
11 there's issues with personnel. We I have two individuals,
12 qualified analysts, working this case on a regular basis.
13 There's also a cost that is incurred with the Texas Department
14 of Public Safety because we are a non-charging agency, so
15 there's no fee for service. And the State of Texas takes oh
16 that cost, ~nd the DNA analysis is very expensive.
17 There's also the challenge in analyzing these
18 kinds of evidence because -- Ms. Butterworth did touch on this
19 before. There are some items that may have biological material.
20 But as per policy, the Texas Department of Public. Safety does
21 not do touch DNA simply because usually there's not enough DNA
22 there to analyze using our current processes. So these are
23 usually given to another lab to do, a fee-for-service lab. So
24 as a whole, it is a big challenge.
25 Q. Just for clarification, when you say that generally
Andrea Quezada, CSR
243rd District Court
• • 33
1 your policy is to not do any kind of DNA testing for touch DNA,
2 that would be DNA attempting to -- or testing that is attempting
3 to yield DNA from epithelial cells. Is that a gross way of
4 simplifying?
5 A. I think that's an oversimplification. Epithelial
6 cells can be taken, and we do do DNA analysis fro~ DNA that's
7 with epithelial cells. But for example, if I touch this desk,
8 we won't do that type of DNA analysis.
9 Q. Okay. But in this particular case, I've asked you to
10 do that. I've asked you to swipe or take a swab from almost
11 every piece of evidence in this case because I don't want to be
12 in the .position -- well, you won't know this, b`` I don't want
13 to be in the position that something wasn't tested or given to
14 DPS and somehow I'm in the middle of trial on a death penalty
15 case and I'm somehow not in compliance with the new statute. So
16 correct me if I'm wrong. I've given you everything because the
17 argument could be made that almost anything would yield
18 biological evidence. Correct?
19 A. Yes, that's correct. And we're doing our best to use
20 logic and ieasoning and our training and our skills to determine
21 if we need to collect certain swabs for touch DNA.
22 Q. Okay.
23 THE COURT: Mr. Ronquillo, realistically
24 speaking, how long would it take to analyze 206 pieces of
25 evidence in this case?
Andrea Quezada, CSR
243rd District Court
34
1 THE WITNESS: The way I came out with a
2 projection of June '15 is that each analyst will work 30 items
3 for DNA analysis in one month, and so that will take you a
4 little bit longer than 7 months.
5 THE COURT: Mr. Ronquillo?
6 THE WITNESS: Yes?
7 THE COURT: An independent lab, how long would
8 they take after you have completed your work? How long -- do
9 you have any way of knowing?
10 THE WITNESS: No, I don't have any way of knowing
11 that.
12 THE COURT: Generally, does a private lab go
13 quicker or slower than you?
14 THE WITNESS: They definitely go quicker just
15 simply because they are a fee-for-service lab. So the more
16 samples that they run, the more income that they make. So for
17 us~ in order for me to have personnel specifically dedicated to
18 this case like an independent lab will is just not feasible.
19 THE COURT: Would you be able to give me a rough
20 estimate of what a DNA analysis for submitted evidence would
21 cost generally?
22 THE WITNESS: Including their. salary and
23 everything to go on with that, I really can't comment on that.
24 I -- even as a supervisor, I do not establish salaries or do
25 cost analysis.
Andrea Quezada, CSR
243rd District Court
• • 35
1 THE COURT: Do you know what a pri~ate lab will
2 charge per submitted item?
3 THE WITNESS: I bel{eve it can range from three
4 to $6,000 per sample.
5 THE COURT: Oh .· All right. Thank you.
6 MS. BUTTERWORTH: I have no further questions of
7 Mr. ·Ronquillo.
8 THE COURT: Mr. Spencer?
9 MR. SPENCER: Just very briefly, Your Honor. If
10 I may cross-examine?
11 CROSS-EXAMINATION
12 BY MR. SPENCER:
13 Q. Good morning, Mr. Ronquillo. As you know, I'm Joe
14 Spencer. I represent Mr. Solis. I'm going to ask a couple of
15 questions. As I understand what you told this Honorable Court
16 is that 38.43 has imposed Ia huge challenge on all DPS labs
17 throughout the state; is that correct?
18 A. That is correct.
19 Q. And as I understand, your summary of it is it has to
20 do with the volume of evidence and the cost; is that correct?
21 A. Yes.
22 Q. And that's really the challenge that's been in place
23 that the legislature has burdened your· specific DPS lab or labs
24 like yours in the State of Texas. Correct?
25 A. That's correct.
Andrea Quezada, CSR
243rd District.Court
36
1 MR. SPENCER: I h``e no other questions,
2 Your Honor.
3 THE COURT: All right.
4 Mr. Ronquillo, you can take a seat at counsel
5 table.
6 You may proceed, ma'am.
7 MS. BUTTERWORTH: I'm finished as far as what I'm
8 presenting to the Court. I would like to just make I guess a
9 final argument for purposes of the record.
10 THE COURT: .Mr. Spencer?
11 MR. SPENCER: Yeah. Thank you, Your Honor.
/
12 There was a couple of things that Ms. Butterworth
13 said that I think is important, Your Honor. She said that the
14 evidence that they submitted to DPS, they looked at it to
15 strengthen the State's case, that they wanted to flush out what
16 was going on in this case from their perspective. It seems that
17 cost is a factor. You know, when the. State of Texas is seeking
18 the State's sanction, assassination of one of its citizens,
19 Your Honor, cost should not be a factor.· Justice should not be
20 for sale in this courthouse or any other courthouse in the State
21 of Texas.
22 Certainly members of the constabulary are the
23 ones that collected the evidence, and they work hand in hand
24 with the prosecutor's office. Ms. Butterworth, in her summary
25 on the second page of the spreadsheet, talked about the two
Andrea Quezada, CSR
243rd District Court
• • 37
1 items that she submitted, JE~4, JE95, the right fingernail
2 clippings of DeSantiago. It is obvious that that was done for
3 the purposes of looking for biological evidence that
4 incriminates the defendant. They're certainly not looking for
5 evidence that is ~xculpatory. They're certainly not looking for
6 any evidence that is mitigating.
7 In a death penalty case, as the Court knows,
8 mitigation is a special issue to this jury. We tried a death
9 penalty case this year in which the prosecutors directed --
10 based on the testimony that was presented at trial -- the crime
11 scene technicians on what evidence to collect and what evidence
12 not to collect. They dictated what evidence was going to be
13 submitted for analysis. As I understand, the initials "JE"
14 indicate the crime scene technician personnel, the person that
15 actually took -- based on prior testimony and prior evidence and
16 prior cases, that would identify the individual that collected·
17 it and the number that he assigned to it.
18 In a case that we tried earlier this year in a
19 death penalty case, we know, for example, that the prosecutors
20 went out to the crime scene. They directed -- based on the
21 crime scene technician's testimony -- what evidence to collect.
22 They later met with the distritt attorney. He then met with his
23 assistant DAs. They met with the crime scene technician, went
24 back but to the crime sc~n~, and instructed that crime scene
25 techniciari what other evidence to further collect.
Andrea Quezada, CSR
243rd District Cou~t
• • 38
1 None of that evidence wa~ done and then was
2 testified by Ms. Vandenbosch in that case. That was done to
3 strengthen the State's case. None of this evidence that has
4 been collected is, for the purposes of mitigation. They might
5 want to argue, Well, we have an obligation under the code to
6 look for exculpatory evidence . . But they have never looked for
7 mitigation evidence.
8 Now, I'm not going to recite Ms. Butterworth's
9 opening statement that tells the Court and lays out the scene
10 and says why all this is important. I'm not going to respond in
11 like fashion because I'm not obligated to give the State my
12 defensive theories.
13 Certainly, I think the wisdom of the· legislature,
14 when they passed 38.43, when the State of Texas is trying to
15 execute one of its citizens, has an absolute right to have all
16 the evidence tested. There is a reference for identification,
17 but it didn't limit it there, Your Honor. And we believe that
18 the legislature -- although Ms. Butterworth indicates
19 legislature was shortsighted in the type of cost analysis that
20 it was going to burden the DPS, that's no~ an issue for this
21 Court. That's not an issue where justice is sold at this
22 courthouse.
23 Mr. Solis is entitled to have a complete defense.
24 There are many -- and I would be glad to articulate to the Court
25 on an ex parte fashion the defensive reasons of why we believe
Andrea Queza4a, CSR
243rd District Court
• • 39
1 all the evidence is important because the State of Texas is not
2 entitled to know that·. We are not obligated to tell them why.
3 But they have told you that they are looking for evidence to
4 ~trengthen their case. That's what she said. That's the
5 concern that I have. And unless all the evidence is tested,
6 will Mr. Solis have t~e opportunity to have not only exculpatory
7 evidence there but mitigating evidence, wh~ch is a special issue
8 for the fact finder in this type of death penalty case?
9 So for those reasons, Your Honor, we ask that --
10 we're on track. We've done -- as I understand by Mr. Ronquillo,
11 half of the evidence has been tested. We have another half to
12 go. We certainly don't feel that justice should be compromised
13 by the cost factor, especially if one of our citizen's life is
14 at stake, certainly a person in this country charged with the
15 death penalty. And we ask that they be allowed to complete the
16 analysis and turn it over in the manner in which the schedule
17 they anticipate they're going to do.
18 I appreciate that we are getting these
19 piecemealed as DPS is providing tbe lab report. You know, we're
20 looking at them now, so we don't have to wait until June of
21 2015, then we're going to start for the first time then. So if
22 the tourt would ask the DPS lab as those reports are submitted
23 that they turn them over to us ~t the same time; that would
24 expedite this process and we can eventually get this case tried,
25 which is something that Mr. Solis wants to do as soon as
Andrea Quezada, CSR
243rd District Court
• • 40
1 possible.
2 But he doesn't want to compromise his life much
3 less his freedom because of the cost factor or because DPS is
4 overwhelmed or because Ms. Butterworth thinks that the
5 legislature is shortsighted. I don't believe that is a factor.
6 Death is different. Death is different. When the State of
7 Texas is seeking the death penalty, then we're certainly
8 entitled to have -- all of his lawyers are entitled to have --
9 be properly prepared to have a fair trial, to have effective
10 representation, and so that justice can be served.
11 THE COURT: Anything else on the applicability of
12 38.43 from the State?
13 MS. BUTTERWORTH: No, Your Honor, other than -- I
14 don't believe that 38.43 is telling the State o£ Texas or these
15 courts or DAs offices or defense attorneys that every single
16 item must be tested. And we're looking for some clarification
17 here for cases down the road and this case as well. I don't
18 believe that this is at all, when it's read word for word, what
19 this statute is saying, that unless there is an agreement by the
20 state or the defense that every single item must be tested. I
21 believe th~t this staiute is intended for the Cburt to
22 determine.
23 And just to clarify Mr. Spencer's argument, I did
24 say that part of the testing that we do in any case, not just
25 this case but this case especially, is part of it is to
Andrea Quezada, CSR
243rd District Court
• --~·~-------
41
1 exculpate a defendant. The State of Texas, specifically myself,
2 I'm not in the business of trying to convict innocent people and
3 get them a death penalty. I believe that most prosecutors would
4 agree that we have every vested interest as well in making sure
5 that we have the right guy. And if evidence can be tested, it
6 should be tested to determine if we do. So it could either
7 strengthen our case or it could exculpate a defendant, and I did
8 say that.
9 I do believe that the intent behind this statute
10 is absolutely not designed that pieces of evidence containing
11 biological material be tested or sent to DPS to strengthen the
12 State's case. That, I don't think -- and I'm sure Mr. Spencer
13 would agree with me -- that that was not the intention of this
14 statute. It was intended, and there's no doubt based on all the
15 changes that were made, to make sure on death penalty cases that
16 if a person or a defendant receives the death penalty, that the
17 person was in fact guilty and not innocent. I
18 So in this particular case, I think the Court can
19 look at all of the pieces of evidence that were collected. I
20 know a lot of the new law that was passed, especially what's
21 being referred to as the Michael Morton act, all of it had that
22 case in the back of their mind where their -- years ago,
23 although I'm not even sure DNA testing existed back then. But
24 years ago, there was one piece of evidence that turned out to be
25 very dispositive and that allow~d him to be freed and released
Andrea Quezada, CSR
243rd District Court
• .``----
42
1 from prison.
2 In that particular case, though, I think
3 especially this Court -- this Court is a learned judge who used
4 to practice criminal law. This Court has watched criminal cases
5 go to trial. This Court understands the nature of DNA testing
6 and what can be yielded from it, the arguments that can be made
7 on both the state and the defense side. This particular judge,
8 Your Honor, you were a p~osecutor and you were a defense
9 attorney. So you will understand the logic on what pieces of
10 evidence should be tested and what shouldn't, not just for
11 strengthening the State's case, exculpating the defendant, or
12 any kind of mitigation.
13 That is why I beli~ve that statute was read that
14 it will be now in your Court to determine what should be tested
15 for DNA. And it ~houldn't just be what the State says should be·
16 tested, although that's honestly never the case. In any other
17 case, even before, if a defense or a defendant wants a piece of
(
18 item a piece of evidence tested for DNA, they have also been
19 able to request that. Ih any other case, besides 38.43 -- if it
20 had been any other murder or capital murder trial where there is
21 a piece of evidence the defense is asking to be tested for DNA,
22 that can be done. They either can ask the Court to have the
23 State turn over that piece of evidence so that theii i~dependent
24 lab can test it, or they can ask the Court to order the State to
25 ask DPS to test that piece of evidence. That's always been an
Andrea Quezada, CSR
243rd District Coutt
• • 43
1 option that has been in the law and has been part of trial
2 preparation on any case. That has also been something that the
3 defense can ask for always through the Court.
4 But in this particular case, I just don't think
5 that the intent of 38.43 is that the~e is a mandatory absolutely
6 every single piece of item be tested. I don't see very many
7 cases where the state and the defense agree on what. should be
8 tested. I also think the defense will take the stand that every
9 single item be tested, and so then it falls on the Court.
10 The way I read the statute, to determine what is
11 relevant for testing, if there is one piece of evidence out
12 there that would be very indicative or just for the multiple
13 reasons why we test for DNA-- and that's why I've given the
14 Court all of the photographs of every single piece of evidence
15 that was tested, a layout, a summary of what this is.
16 And I would just like to remind the Court and
17 whatever reviewing courts look at this if we get that far, our
18 job is to seek justice. And I underst~nd Mr. Spencei may not
19 represent to the Court that that's what our job is or may think
20 that that's not what we do, but that is what we do. Our job is
21 to seek justice. Or job is to lOok at the m0ltiple reasons for
22 DNA testing, especially in a death penaity case.
23 And in this case, I subm~t to the Court that we
24 have produced and have already tested a plethora of different
25 items from all sorts of different angles throughout the house or
Andrea Quezada, CSR
243rd District Court
• •. -----
44
1 any 6ther argument that could be made and that we are at the
2 point where we should be able.to move forward and go to trial on
3 this case based on what has already been produced.
4 And that is why we're arguing to the Court today.
5 I believe it's not only money, but I believe that there is a
6 delay. There has been a delay created in this particular case
7 based on the interpretation of 38.43. We are now delayed in
8 possibly going to Court. Because what's going to happen
9 possibly is, once we get all of the DNA results back from these
10 206 pieces of evidence, I suspect and anticipate -- and I think
11 this argument could be made for any capital case down the road
12 and any other court in the State of Texas that it will then
13 be the defense asking for the same amount of time to do their
14 DNA testing or to have the same amount of time to retest or
15 reanalyze or get their expert to look at the DNA results. And
16 so now we're talking about -- our DNA wili be finished by June
17 of 2015. Where is the .Court going to be when the defense turns
18 around at that point and says, Now I need a year, two years,
19 three years, however many years the State had. I now need that
20 time to conduct my DNA testing as well~
21 These are the issues and the problems that are
22 corning up if 38.43 is interpreted to mean that every single item
23 be tested. These are the delays that go hand in hand if that is
24 how this statute is interpreted. And I do not believe,
25 representing the State of Texas, that that is how the statute
Andrea Quezada, CSR.
243rd District Court
I
• 45
1 reads. I believe it reads that we each make our argument of
2 what should be tested, what shouldn't be, and that the Court
3 determines what should be tested or what should be sent.
4 And that is why, at least for my part of this
5 hearing, I have submitted to the Co~rt all of the items that
6 were coll~cted, photographs of the items collected, where they
7 were found in each representative place that they were
8 collected, and what we have been given so far as far as the DNA
9 that's been yielded on the amount of items that have been
10 already been analyzed thus far. We're asking the Court to
11 boldly make a ruling as to how this Court interprets 38.43 in
12 this particular case.
13 MR. SPENCER: May I respond to the delay issue,
14 Your Honor?
15 THE COURT: Yes, sir. Before you start, can we
16 continue to argue 38.43? And once we're done arguing the
17 applicability of 38.43, then we'll address the second issue of
18 the speedy trial.
19 MR. SPENCER: Okay. Thank you, Your Honor.
20 Ms. Butterworth talks about the delay tactic that might be their
21 tactic. The State of Texas knew six months before this statute
22 was enacted that the statute was coming before the legislature
23 and when it was passed. They knew that. And as Ms. Butterworth
24 has told you, e~ery defen~e lawyer in the State .of Texas is
25 going to ask for everything to be done. They knew it was going
Andrea Quezada, CSR
243rd District Court
• 46
1 to be done. So if it'~ any delay, it falls bn the shoulders of
2 the State of Texas with their lack of foresight. They knew the
3 statute was in the legislature. They knew it had been passed,
4 and they still delayed the p~ocess in getting it tested, and
5 they want to put it on the defense.
6 And it's a little disingenuous of the State of
7 Texas to say that the defense is going to ask, all right -- I
8 guess she's accepting that it might be fair-- that we have the
9 same amount of time that the State had to test it. That's not
10 what the defense would do. The defense would have the ability
11 that would have to be privy to the underlying data that the lab
12 has done, reviewing that data to make sure that the dat~ was
13 done properly, that there was no cross-contamination, without
14 question ~- having to retest everything. So it would take us
15 nowhere near but a fraction of the time that the State of Texas
16 had to respond to that, Your Honor.
17 With respect to the speedy trial issue,
18 Your Honor, do you want me to address that?
19 THE COURT: Yes, sir.
20 Anything else on that applicability of 38.43?
21 MS. BUTTERWORTH: No, Your Hbnor.
22 MR. SPENCER: No, Your Honor.
23 THE COURT: All right. Let's address the speedy
24 trial issues. My concern is that the defendant has been
25 incarcerated going on two and a half years. And that's one of
Andrea Quezada, CSR
243rd District Court
• • 47
1 the issues that I'm attempting to address. That's just an
2 exceptionally long amount of time period of time.
3 MR. SPENCER: It is, Your Honor, especially for a
( Court that is as expedient a~ this Court is, so I know it
5 bothers the Court. I'll represent to you on behalf of
6 Mr. Solis, Mr. Soli~ will waive any speedy trial issue on the
7 record, Yout Honor, not going to make an objection to a speedy
8 trial issue. Mr. Solis is more concerned about making sure that
9 he is properly defended and he is prepared because his life is
10 at stake. And that is upmost of what his concern is. So with
11 respect to the speedy trial issue, he will waive any concerns
12 having to do with speedy trial.
13 THE COURT: Ms. Butterworth?
14 MS. BUTTERWORTH: My only response to that would
15 be, Judge -- and I know it's not an argument from the defense --
16 is that in a sense, the State is entitled to a speedy trial as
17 well. We have multiple family-- victims' family that are part
18 of this case that have been part of this journey from the day
19 they get news of what occurred to their loved ones. And now we
20 are in a position where we -- they are delayed as well. The
21 State is delayed. The defendant is delayed. The family is
22 delayed. This Court is delayed waiting to see if we can get
23 some guidance or clarification of 38.43.
24 I understand that it's probably the upmost
25 importance to look at the defendant first, and he is entitled to
. Andrea Quezada, CSR
243rd District Court
·- 48
1 a speedy trial, But the State also has rights as well in the
2 sense that, you know, both sides should ideally be able to go to
3 trial as quickly as possible making sure that all rights are
4 protected in a case like this'because everybody is waiting.
5 I just -- I think that there are unnecessary
6 delays thai are created in the interpretation of 38.43 for both
7 sides, for.the defendant and the State, if it is.interpreted
8 that every single item must be tested for DNA that possibly
9 contains biological material.
10 THE COURT: In the event that the defendant was
11 to be found incompetent, your opinion as to the validity of his
12 waiver of the speedy trial?
13 MR. SPENCER~· I'm sorry, Your Honor? Would you
14 ask --
15 THE COURT: In the event that the defendant was
16 found incompetent, what would -- what if any impact would that
17 have on the validity of his waiver of speedy trial?
18 MR. SPENCER: I don't believe that competency has
19 been an issue with respect to Mr. Solis, Your Honor. In all
20 conversations that I've had with him, his current competency is
21 not an issue. So I believe that, in my opinion after numerous
22 discussions with him, I think he is currently competent. And I
23 thirik that h~ can make a valid waiver of a speedy trial based on
24 his competency.
25 THE COURT: Just a thought that crossed my mind.
Andrea Quezada, CSR
243rd District Court
··-·---·------j·~----
49
1 All right. Says the State? Anything further
2 from the State?
3 MS. BUTTERWORTH: No, Your Honor.
4 THE COURT: The def~nse?
5 MR. SPENCER: No, Your Honor.
6 THE COURT: I will have my decision Monday
7 morning, 0800.
8 Anything further?
9 MS. BUTTERWORTH: Nothing, Your Honor. I would
10 like to tender to the Court the photographs and the video.
11 MR. SPENCER: Your Honor, before she tenders it
12 to the Court, I would like to have an opportunity to examine
13 that, everything she's going to tender. I would like to have an
14 opportunity to cross reference it ~ith what I have. I'm not
15 sure that everything is here that -- what I have. So before
16 that gets turned over to the Court, I would like to make sure
17 that the Court has a complete picture.
18 THE COURT: All right. That's fine. Then I will
19 retract Monday morninq, 0800. I would like three days with that
20 file. I do not know what's in there.
21 Ms. Butterworth, i~ that somethinq I would be
22 able to review thoroughly in three days?
23 MS. BUTT~RWORTH: I think, so, Judge. So if ~-
24 I'll just break it down ior you. What I've done is basically in
25 a file folder, I've delineated the various pieces of evidence,
Andrea Quezada, CSR
· 243rd District Court
• • 50
1 and I've broken them down in different file folders. What I've
2 done is, in each file folder, I've labeled the piece of evidence
3 that should be represented by the photograph contained in the
4 file folder. And then I've also included a copy of the
5 defense -- excuse me of the officer's supplement that
6 colletied that piece of evid~nce.
7 We're not in front of a jury. I'm proffering
8 that t6 the Court so that the Court can have an understanding of
9 the description of -- for example, JE09. In the supplement,
10 there will be a description of what JE09 is and where it came
11 from. So obviously Mr. Spencer can look at those supplements.
12 I would also add on the record for the purposes
13 of this hearing, Mr. Spencer has received a copy of all these
14 supplements. They have been turned over and would have or could
15 have and maybe perhaps even down the road could have submitted
16 to the Court anything else that the defense wo~ld like for the
17 Court to review in making this ruling. This is what the State
18 is proffering to help the Court make a ruling, which are the
19 photographs and the explanations of what each particular piece
20 of evidence is that correspond to the supplement.
21 THE COURT: All right.
22 ~r. Spencer, review that file. How long do you
23 anticipate being in possession of that file? Is there any way
24 of knowing?
25 MR. SPENCER: Your Honor, I don't imagine it'~
Andrea Quezada, CSR
243rd Diitrict Court
• 51
1 going to take me long to review this file. What's going to take
2 long is to compare it with what I have. Ms. Butterworth is
3 correct. I believe I have a complete set of the file. I don't
4 believe that what Ms. Butterworth is going tender to the Court
5 is going to be what I believe should be all inclusive
6 encompassing of what we believe why we're asking all the DNA
7 evidence to be tested. And I don't know what other notes or
8 writings or what Ms. Butterworth intends to give to the Court.
9 I will examine that.
10 Once I've had an opportunity to examine that and
11 then compare it with what I have, then -- I don't want to be
12 duplicating anything for the Court. So I will then add a
13 ·supplement of what I believe is relevant and give
14 Ms. Butterworth an opportunity to what I'm giving the Court as
15 well.
16 THE COURT: Why don't we do this?
17 Mr. Spencer, review the file, supplement it with
18 your exhibits, return it to Ms, Butterworth.
19 Ms. Butterworth, review what's been handed to
20 you, and then just forward it to me. And then just give me some
21 time.
22 And dbn't hold me to those three days because,
23. Mr. Spencer, you're going to be adding documents. I'm going to
24 thoroughly review what's submitted to me. So once you submit it
25 to me, I will let you know how much time it will take to review
Andrea Quezada, CSR
243rd District Court
• .._ _ _ __
52
.1 it.
2 Anything further?
3 MR. SPENCER: Nothing further, Your Honor.
4 MS. BUTTERWORTH: No, Your Honor.
5 THE COURT: Thank you very much. You-all are
6 excused.
7 MR. SPENCER: Thank you.
8 (Wherein proceedings concluded.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Andrea Quezada, CSR
243rd District Court
• • 53
1 STATE OF"TEXAS
2 COUNTY OF EL PASO.
3
4 I I Andrea .Quezada, Official Court Reporter in and for the
5 243rd District Court of El Paso County, State of Texas, do
6 hereby certify that the above and foregoing contains a true and
7 correct transcription of all portions of evidence and other
8 proceedings requested in writing by counsel for the parties to
9 be included in this volume of the Reporter's Record, in th~
10 above-styled and numbered cause, all of which occurred in open
11 court or in chambers and were reported by me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits, if any,
14 offered by the respective parties.
15 I further certify that the total cost for the preparation
16 of this Reporter's Record is $212.00 and was paid/will be paid
17 by District Attorney's Office.
18 Witness my official hand, this the 20th day of February
19 2015.
20
21
22 Is/Andrea Quezada
Andrea Quezada, Texas CSR# 9126
23 243rd District Court
El Paso, TX 79901 (915) 546-2168
24 Expires: December 31, 2015
25
Andrea. Quezada, CSR
243rd Cistrict Court
.. ·
• • .___ _ _ __
.!
LUIS AGUILAR
JUDGE'
'1A3"' DIS'I'IIICI' CODJlT 2Gi4 OCT -6 Mi 10: 00
EL PASO comnT COtlllT.ROUSE
!MILS..AIMiih..__l·
IIIWD,'f.-'MU-
(911) •• 2lfl
October 6, 2014
Yia Facsimile No. 9151532-7535_
· Mr. Joe A. Spencer
Attorney at Law
1009 Montana Avenue
El Paso, Texas 79901
Re: State o[Texas v. Luis So/is-Gonzalez, Cause No; 20120004103 in the 243rd
Judicial Distrtct Court, El Paso County, Texas
Dear Mr. Spencer:
At the October 2, 2014 pre-trial hearing on the above-styled and numbered lawsuit, the
State of Texas tendered to you on the record, their proffer of exhibits for the Court's
review. That proffer included a list of all exhibits that have been submitted to the
Department of Public Safety laboratory for analysis.
In the event you believe the State has failed to submit a necessary piece of evidence,
please identify that item and your justification for its analysis.
If you would. return their proffer, along with any additional exhibits you believe wo.uld
assist the Court by October 13,2014 at 10:00 a.m., I would appreciate it. :
If you have any questions, please contact me.
Respectfully submitted,
~gtril
Judge, 243rd Judi_c
cc: Ms. Denise Butterworth, via facsimile 915/533-5520
LA/1s
• --~·
. ...
Transmission Log
243 District Court Sunday, 2014-10-05 21:24 9155468107
Date Time Type Job # Length Speed Station Name/NUmber Pgs Status
---------- ------ --------------------
2014-10-05 .2.1: 23 SCAN 2'2134 0:07 31200 9155327535 l OK -- V.34 AM31
UJJS AGUILAR
JUDGE
~ DmlllC'l' OOIJRT
......._.,..
II. PASO COIIDft'Y C:UW:J'IIOtJSE
•&a.*±#'~ .
C,RS)f4f418
October 6, 2014
Ylo'pqqtmtldl9. 2l.SI$3Z-ZS.15
Mr. ]oe A. Spencer
Attorney at Law
1009 Montana A~nue
El Puo, Texas 79901
Re: St4te ofTuas v. Luu So/ls-GIJnmfft, Cause No. 20120004103 in the 243~
)udi~al 0\strlct Court. 'El Paso County, Texas ·,
Dear Mr. SpeDcer:
At tbe Oc:!ober 2, 2014 pre-trial hearing on the above-styled and numbered lawsuit, the
State of Texas tendered .to you on tho record, their proffer of exhibits for tho Court's
review, That proffer included a list of all exhibits that have been Sllbmitted to the
Dopllltmellt of Public Safety laboratory for analysis.
In the event you believe tile SWc haS failed to submit a necessary piece o( cvid=nee,
plea&~: idemlfy that itmn and your jusdftcatlou lor its analysis.
If you would retuni tbeiz pl'()trer, along with any additional exhibits you believe would
assist the Court by October 13, 2014 atlO:OO a.m.., I would appreciate 1t.
If you have any questions, ])lease comact me.
``
``
Jwge, Dlamct Court
c:c: Ma. Deuise Butterworth. lila &cslmile 9151533-5520
LAlla
• •
Transmission Log
243 District Court Sunday, 2014-10-05 21:25 9155468107
Date Time Type Job # Length Speed Station Name/Number Pgs Status
----------
2014-10-05 21:24 SCAN 22135 0:30 9600
-----·~--------~-----
95335520 1
----------------
OK -- V.29 AH30
UJJS AGlJILAR
ltlDGB
.........
-u:s- Diil'Jd(."t c::ouxr
......
.........,.,..
BL P.UIO comnT COU'I'IlOIISB
(NS)M41a
October6, 2014
Vlq f?qsrlmllc No. 215/$32.153§
Mr. Joe A. Spencer
Attomey at l..aw
1009 Montana Avenue
E1 Paso. Texas 79901
Re: St:tlN o{Twu v. Lulz Soils-Gonzalez, Cause No. 20120D04103 in the 243~'``
Judlctal Dlsb'lct Court, El Paso County, Tsxas
Dear Mr. Spcneer:
At the October 2, 2014 pre-trial heariq on the aboVMtyled and nwnbered lawsuit, the
Slate of Toxaa tendered to you on thci record. their p:offi:r of exhibits for the Court's
review. That proffer Included a lisl of all exhibits that have been submitted to the
Ocpanmem of' Public Safety laboratory for analysis.
1.11 tbc event you bclimve the State has fllilcd to submit a necessary piece of evid011te,
plcuc idemify that item and your j1llllificat!on for its IIIIAiy#ia.
rt you ViOuld return their protrer. along with Ill)' additioll41 exhibits you believe would
assist the ColD'l by October 13,2014 at 10:00 Lm., [would appree.iale it .
Ifyou have any questions, please CODtact me.
Respectfully submitted,
"'E?r'~.>
~
Jacige, 243rd Judi District Court
cc: Ms. Denise Butterworth. vla1ilcslmite 915/533·5520
LAIIs
• ----````---------------
IN THE 243rd DISTRICT COURT
OF EL PASO COUNTY, TEXAS
THE STATE OF TEXAS §
§
vs. §
§
LUIS SOLIS GONZALEZ §
Imina of Documents for Clarification of Record of Article 38.43
Hearing on Oct 2. 2014
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW THE STATE OF TEXAS, in the above-entitled and numbered
cause, and files the tonowing paperwork that was referred to by the State of Texas, and
relied upon by the trial court, in the hearing that took place on October 2, 2014
regarding Article 38.43: chart with DNA results for items tested, 4 hand delivery slips,
lab reports dated: 05-09-13, 08-12-13, 04-29-14, 06-13-14,06-17-14,07-17-14,0~19-14,
and crime scene video.
R~S~D,~
DENISE BUTTERWORTH
ASSISTANT DISTRICT ATTORNEY
STATE BAR NO. 24012368
500 E. SAN ANTONIO, SUITE .201
EL PASO, TEXAS 79901
(915) 546-2059
CERTIFICATE OF SERVICE
This is to certify thata true and correct copy of the foregoing motion was
delivered "to attorney for the Defendant, Mr. Joe , on 27th day of February,
2015.
DENISE BUTTERWORTH
ASSISTANT DISTRICT ATTORN
Oc{. 2.. 1 t, c.l'f
~J'O>._,~w
•
:,
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~ )Q)1 JE22 1 Collar ott-shirt- upstairs restroom floor 1·aesaRtiago- ~ 1 Jf-2. -t~tlf
,.·*
C?· 2 .•
• •
...
DATE: July 1, 2013
T.
I FROM:
500 E. San Antonio
Suite 201
EIPaso, Texas 79901
TO: Mr. Joe Spencer
SUBJECT: Luis Solis Gonzalez, 20120004103
ITEM: 1 disk containing voluntary statement of Defendant
DPS report dated 05..09-13
1.
t.
RECEIVED BY: \ Sb.e.\ \ N)QCX),X)=
.. DATE: · 3'/ l::t I r~ TIME: \fl. : S \ ..
'·
----------- • -· -
----
~l f:=f0\\frfJ@J
.... , .. .
•···
fP)~J~).l\``fP.~9
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..............
. . ....... ,. ·-· ~ . ~--··
DATE: March 7, 2014
FROM: P.~l.1t.!f~· etrt;t~/ii~!Q1!1I~t
Assistant District Attorney
DISTRICT ATTORNEY'S OFFICE
500 E. San Antonio
Suite 201
El Paso, Texas 79901
TO: Mr. Joe Spencer
SUBJECT: Luis Solis Gonzalez, 20120D04103
ITEM: Df>S report dated 08-12-13
....
RECEIVED BY``~
I>ATE: ZJ/to /d TIME: 1:oa PfY) .
• ----
DATE: July l!J, 2014
FROM:
Assistant District Attorney
DISTRICT ATTORNEY'S OFFICE
500 E. San Antonio
Suite 201
EIPaso, Texas 79901
TO: Mr. Joe Spencer
SUBJECT: Luis Solis Gonzalez, 20120D04103
ITEM: DPS lab report dated 04-29-14
DPS lab report dated 06-13-14
DPS lab report dated 06-17-14
RECEIVED BY:
DATE: TIME: --:4:..;...:l;..;;;;l)_·- - -
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·--------~·~----~··
-------------· _,
l I
DATE: September 26, 2014
FROM:
Assistant District Attorney
DISTRICT ATTORNEY'S OFFICE
500 E. San Antonio
Suite 201
EIPaso, Texas 79901
i
TO: Mr. Joe Spencer
SUBJEcr: Luis Solis Gonzalez, 20120D04103
ITEM: DPS lab repOrt dated 07-17-14
DPS lab report dated 09-19-14
·~------~·~-------
-----------------·--
. ~"t\\tt:-·
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. ,, TEXAS DEPARTMENT OF PUBLIC SAFETY
•• .
..- CRIJE LA80RA10RV
•
tft12 Sc:olr Slmplaa
......
).·~-~ II El Puo, TX 79931
-I
lrTI!\I&MC.IICQA\'11
Vlllct 911-841-4120 I'IX 915-848-4113
Ell'eloCrtl!lll..aiOipUeui.QOV
toiNSIIIOII
•\)~. tliR&CTOR A.eY-L!C»>.CI-WII
..•., ~YIDG.­
C>IIJitYI.ModiiiiOI!
CARIN 1!.\RCY 8ARTK
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llU\ItY CIIRIICTORII- ~ e. pOI.UHIIC't
Forensic Biology Laboratory Report AANDYW.TIION
:1``-!
·,,
Issue Oats: May 09, 2013
F.~t-.~
:``- Laboratory# ELP-1211-01637
:.:~"' ,,. Jorge Estrada
El Paso Police Department Agency 11 12152050
.. ;-::"'!..f:" County El Paso
.. 911 N Raynor
!~;_,;!_``· . El Paso, TX 79903 Offense Data 05131/2012
t~:--~
:~S:~:~ Suspect(e) SOLis-GONZAI.EZ, Luis (DOB 04118m)
\``if.:-
Vlctrm(s) SALDIVAR, Marysol (COB OSJOenB)
:~
. . . ~(DOS­
DESANTIAGO, Eric (DOB 12129169)
~:t~!
Ellmlnatfon(s) ``LII~ooa-
Reauested Anatvsl!; Screen fof Biological Evidence.
..
.. :•.
-~-,
~,
Submi§Sfon Information;
J 01 -Properly Sealed large Brown Box on November 12, 2012 by Estrada, Jorge VIA In Person
-; .....
Evidence cescrlpt!on. Results ofAoatvsla and lntemratatlon;
,:•.``~-
;_: ~
01 : Property Sealed Large Brown Box
. -``~--- 01-01-AA; Kitchen knife with black handle from kitchen counter (agency exhibit JE02)
····:'?" ,. Apparent blood was detected.
-~ill
··.- .).~'
01.02-AA: Small kitchen knife frOm upstairs restroom (ageney exhlbltJE69)
i {t}1;~ Apparent blood was detected.
I .;.J_
:.•
01..03-AA : Black knife handle from kitchen floor (agency eXhibit JE04)
I --``7>~:-,
:~;
.Apparent blood waa detected.
\~
01-o4-AA : KnJfe blade from kitchen sink (agency exhibit JE38}
Apparent blood was detected.
·~i 01·06-AA: Pleeea oftolfet paper from Marysol Saldivar's crotch area (agency exhibit JE17)
Apparent blood was detected.
01-oe.AA : Duct tape from upstairs bath tub (agency exhibit JE24)
Apparent blood was delected. Trace evidence was collected. The collected trace eVidence has been
packaged with the evidence. No further analysis was conducted at this time.
01-07-AA: Three pieces ofduc:t tapa from Inside and under hamper (agency exhibltJE20)
Apparent blood was detected. Trace evidence was collected. The collected trace evidence has been
packaged with the evidence. No further analysis was conducted at this time.
01.08-AA : Duct tape cardboard roll from . . .. . room (agency exhibit JE30)
Apparent blood was detected. Trace evidence was conected. The collected trace evidence has been
. packaged with the evidence. No further analysis was conducted at this time.
01-09-AA : Duct tape from kids bag With toys from . . . - S room (agency exhibit JE23)
ApParent blood was detected. Trace evidence was collected. The collected trace evidence has been
packaged with the evidence. No further analysis was eonducted at this time.
01-1 0-AA : Finger cast made of duct tape found next to vacuum outside of upstairs restroom
(agency exhibit JE34)
ACCREDITfD BY rtf£ AMERICAN soctl!TY OF CR/111! LABORATmlY DJR2CTORS • LAB ACCREDITATION BOARO
. >)ltllJ'ICM.GS.U
· · !IDillllllliiiUIIIBUa!RIIII couRrelY · ~VICE· PROTECTION
:. ;..,_:,
... "'~
.. t
• •
-.;.,.
i-~ ...
'
laboratory Case Number Agency Case Number ·. Offense Date
... ~. ELP-1211-01637 12152050 0513112012
'/.:·
... .;:, .. Apparent blood was detected. Trace evidence was collected. The collected trace evidence has been
. ``~til packaged with the evidence. No further a~alysl5 was conducted at this time.
01-11-AA : Finger splint from room next to bed (agency exhibit JE61)
Apparent blood was detected. Trace material was obSei'Ved on this item. To preserve the integrity of
the trace evidence, no further analysis· was conducted at this time.
01-12-AA : Blue jeans from room (agency exhibit JE72t
........Apparent blood was. detected..Trace evidence waa collected. The collected trace eviclenee has been
· .. :· - packaged with the evidence. No further analysis was con
_:.r
Apparant blood was detected. Trace evidence was collecled. The collected trace evidence has been
packaged with the evidence. No fUrther analysis was conducted at this time.
01·1 S·AA : White t-shlrt from upstairs restroom floor (agency exhibit JE22l
Apparent blood was detected. Swabs were taken from lhe collar area to possibly detennine wearer.
.:··....
: -~l . TI8Ce evidence was collected. The collected trace evidence has been packaged with the evidence. No
; .
further analysis was conducted at this time.
.·,.: 01·15-AB: Pair of whit& socks from upstairS restroom floor (ageney exhibit JE22)
. "•
Apparont blood was detected. Trace evidence was collected. The collected trace evidence has been
packaged wl1h the evidence. No further analysis was conducted at this tlme.
•o:.'·
01-18-AA: Swabbings from milk gallon In Lis- room (agency exhibit JEA3)
....:. ..
.·,·
.·
~:,·.··
Apparent blood was detected.
01·17-AA-o1 :Duct tape from Desantiago's head (agency exhibit JE99)
Apparent blood was detected. Trace material was observed on thl8 Item. To preserve the integrity of
1he trace evidence, no further analysis was conducted at this llme.
01·17-AB-01 : Rag removed from Desantiago's head (agency exhibit JE99}
Apparent blood was detected. Trace evidence was collected. The collected trace evidence has been
packaged with the evldence. No further analysis was conducted at this time.
01·18·AA: Right hand fingernail clippings from Desantiago (agency exhlbltJE94)
Apparent blood was detected.
01-19-AA: Left hand flngemall clippings from DeNntiago (agency exhibit JE9&)
Apparent blood was detected.
01·20-AA : Right hand fingernail clippings from tll. . . . . .(agency exhibit JE78)
Apparent blood was detected.
01·21-AA : Left hand fingernail clippings from . . (agency exhibit JE79)
Blood was not detect&cl.
.•.,.
01·22-AA.01 : Right Nlke shoe from Luis Soils-Gonzalez (agency exhibit 52C8870)
Apparent blood was detected. Trace evidence was collectecl. The collected trace evidence has been
packaged with the evidence. No further analysls was conducted at lhis time.
01·22-AB-01 : Left Nlke shoe from luis Soils-Gonzalez (agency exhibit 6208670)
Apparent blood was detected. Trace EWidence was collected. The collected trace evidence has been
packaged with the evidence. No further analysis was conducted. at this time.
01-23-AA : Stack t-ahlrt from luis Soils-Gonzalez {agency exhibit BM03)
Apparent blood was detected. Trace evidence was coHected. The collected trace evidence has been
packaged with the evldenee. No further analysis was conducted at thls time. '-``~....
01-24-AA : Mickey Mouse baseball cap from . . . - (agency exhlblt MM01)
Apparent blood was detected. Trace e11idence was collected. The collected trace evidence has.
packaged with the evidence. No further analysis was conducted at this tlme.
01·25-AA-01 : Right hand flngemalf clippings from Maryaol Saldivar (agency exhibit JE57)
. ··:
~......
1'141'81M OS."
. tssue Date: May as. 201a
--------------------------------- - - •
Laboratory Case Number Agency Case Number Offense Date
El.P-1211-01637 12152050 0513112012
Apparent blood was detected.
01-25-AS.01 : Left hand fingernail clippings from Marysol Saldivar (agency exhibit JE67}
Apparent blood was detec:ted.
., . 01-26-AA: Pair of car seat straps from Nlnan Titan truck (agency axhlbftJE108A)
. '.::
Blood was not aetected. Trace evidence was collected. The collected trace evidence has been
packaged with the 811ldence. No further analysis was conducted at this time.
' 01-27-AA : Tissue paper from Inside of Nissan Titan truck (agency exhibit JE113)
Apparent blood was detected.
01-28-AA: Blue Jeans from Luis Soils-Gonzalez (agency exhibit BM01)
: · Apparent blood was detected. Trace evidence was collected. The coUected trace evidence has been
packaged with the evidence. No further analysis was conducted at this time.
01-29-AA : Known blood card from . . (agency exhibit JE82)
I
Item was collected to be used as a reference.
I 01-30-AA : Known blood card from Marysol Saldivar (agency exhibit JE68)
Item was collected to be used as a reference.
01-31-AA : Known blood card from Erfc Desantiago (agency exhibit JE98)
Item was eonected to be used as a reference. ·
01-32-AA : Left buccal swabs from I • r I ~ (agency exhibit MM-A)
Item was collected to be used as a reference.
01-33 : Sealed envelope containing right buccalswebs Lis,. (agency exhibit MM-S)
No analysis was performed.
01-34-AA : Buccal swabs from Luis Solie-Gonzalez (agency exhibit 5210932)
Item was collected to be used as a reference.
'~ :.
i ..' ~ lnvestlgatNe Lyds:
This is a preliminary report. A separate report will be Issued upon completion of DNA analysis on selected
items.
Disposition;
I
Portions of items 01-01-M, 01..(]2-M; 01-03-AA, 01-04-AA, 01-05-AA, 01-CJ6-AA, 01-07-AA. 01.03-AA,
01-09-AA. 01-10.AA, 01-11~ 01-12-AA, 01-13--AA, 01-14·AA. 01·1~AA. 01-15..,A.B, 01-16-AA.
01-17-AA-01, 01-17-AB-01, 01·18-AA, 01-19-AA, 01·2Q-AA, 01-22-AA-01, 01-22-AB-01, 01-23-AA,
01-24-AA, 01-25-AA-()1, 01-25-AB-01, 01-27-AA, 01-28-M, 01-29-AA, 01-3Q-AA, 01-31-AA, 01-32-M,
and 01-34-AA were retained to preserve biological constituents. We are unable to retain the remainging
bulk Enlidence in cur vault. Please make arrangements to pick it up at your earlle&t convenience.
This report has been electronically prepared and approved by:
Nicolas Ronquillo
Forensic Scientist Ill
Texas DPS El Paso Crime Laboratory
.....
._
i·.·
1
ii.oPsll4118.13
'Issue Date: May 09,2013
----------~·~--------~·~
...
'.
·,
TEXAS DEPARTMENT OF PUBLIC SAFETY
CRIME LABOI!:ATORY
.
•
11GU !k:ot\ Simpson
... .
El Paso, TX 199J8
Voice 915-a.CD-41ZO Pdx 1115·8-4$-411~
ElPasoCrtmet..ob@dpt.t••as.gov
srevv. c:. Me ellA"' COMMI$$10N
.DJ~ECTOR A. t.VHTHIA LEON, CH41R
ilAVl'>G.eA•E• CARIN M4RCY B.I'R'JH
Ct-ER~ t.IW:OR06. ~0-'BROWN
nePtlfY OIRfCTORA .4&.1Afol POLlJHSK'Y
DNA Laboratory Report AAHOVWAl'SOfol
Issue Date: August 12, 20?3
Jorge Estrada
Laboratory# ELP-1211.01637
El Paso Police Department
911 N Raynor Agency# 12152050
El Paso, TX 79903 County El Paso
Offense Date 05/3112012
Suspect(s): SOLIS-GONZALEZ, Luis (Do'B 04/18/77)
Vlctlm(s): SALDIVAR, Marysol (008 05/0617a)
W (DOBI l
DESANTIAGO. Eric (DOB 12129f69)
Elimlnatlon(s): • ~001~··
Submission Information:
01 ·Properly Sealed Lasye Brown Box on November 12. 2012 by Estrada, Jorge VIA In Person
Requested Anatvstg: Perform forensic DNA analysis.
Please refer to a previous Forensic Biology report Issued on May 9, 2013.
Evidence Deserlp\lon. Results of Analysis and Interpretation:
Portions of the items were extracted by a method which yields DNA.
The DNA isolated was analyzed using STR (Short Tandem Repeat) PCR (Polymerase Chain
Reaction) analysis. The following loci were examined: 0851179, D21S1 1, 075820, CSF1 PO.
0381358, TH01, 0135317, D16SS39, 0251338, 0195433. vWA, TPOX, 018551, Amelogenln,
DSS818, and FGA.
01-01·AA·D1·AA : DNA extract or swab from handle of kitchen knife on kitchen counter (agency
exhibit JE02)
The DNA profile Is consistent with a mixture. Mr. Desantiago and Mr. Solis-Gonzalel! cannot be
excluded as contributors to the profile. The probability of selecting an unrelated person at random
who could be a contributor to this profile is approximately 1 in 9.488 million for Caucasians, 1 in
28.79 million for Blacks, and 1 in 4.191 million for Hispanics. The approximate world population is
7.0 billion. Marysol Saldivar, • -~.and Ms. 4
are excluded as contributors to this
profile.
01..01-AA-02-AA : DNA extract ofswab from blade of kitchen knlfo from kitchen counter (agency
exhibit JE02)
The DNA profile is consistent with a mixture. Mr. Desantiago cannot be excluded as the contribut
of the major component in this profile. The probability of selecting an unrelated person at rando
who could be the source of the major eomponenl in this proflte is approximately 1 in 2.574 quint
for Caucasians, 1 in 263.6 quil\tilllon fur Blacks. and 1 In 2.729 quintillion for Hispanics. To a
reasonable degree of scienUfic cerlainty, Mr. Desantiago is the source of the m<:~jor component
TlOPaat ~:. 11 ACCREDI1IiD BY THE AMERICAN SOCIETY OF CRIMe I.ABORATORV I)IRfCTORS • U\8 ACCREOITA TION SOARD
lllmiDII Unlalll1111111i!lllllftil m1111111 Ill IIIII COUR'!ESY · S£RV1C'E • P!!OT!;CTION
-- --------- -. •
Laboratory Case Number Agency Case Number Offense Date
ELP-1211·01637 12152050 0513112012
this proflle {excluding Identical twins). Due to the low level of data, no DNA comparisons will be
made to the minor component Mary sol Sald'IVar. Luis Angel Saldivar, Mr. Solis-Gonzalez, and Ms.
~ are excluded as contributors to the major component of this profile.
01-02·AA·01·AA: DNA extract of swab of blade from smalfkltchen knife In upstairs restroom
(agency exhibit JE691
The DNA profile Is consistent with a mixture. Mr. Desantiago cannot be e.)(cJUded as a contributor to
the profile all the SIR loel. The probabifity of selecting an unrelated person at random who could be
a contributor to this profile is approximately 1 In 16.69 million for Caucasians, 1 In 40.49 million for
Blacks. _and 1 tn 6.369 m!Oion for Hispanics. Mr. Solis-Gonzalez cannot be excluded as a
contributor to the profile at the 5TR loci 0851179, 021511, 075820, CSF1PO, 0351358, TH01,
0135317, 0165539, 019$433, vWA, TPOX, 018551·, 055818, and FGA. At these loci, the
probability of selecting an unrelated person at random who could be a contributor to this profile is
for Hispanics. The approximate world population Is 7.0 billion. Marysol Saldivar. •
and Ms. ~are excluded as contributors to this proflte. ·
"'1•1:.1••
approximately 1 in 3.744 million for Caucasians, 1 in 4.634 million for Blacks, and 1 in 2.335 million
01..02-AA.02-AA : DNA extract of swab of hand!& from small kitchen knife in upstairs restroom
(agency exhibit JE69)
The partial DNA profile is consistent With a mixture. Mr. Desantiago cannot be excluded as a
contributor to the profile at the ST~ loci 0651179, 0351358, and 0195433. At these loci, the
probability of selecting an unrelated person at random who could be a contributor lo this profile is
approximately 1 In 21 for Caucasians. 1 in 26 for Blacks, and 1 in 12 for Hispanics. Mr.
Soils-Gonzalez cannot be excluded as a contributor to the profile at the STR loci 08$1179,
population is 7.0 b!llion. Maryse! Saldivar,
contributors to this profile.
1···
021511, 0351358, D195433, and 055818. At these loci, the probability ofsefecting an unrelated
person at random who could be a contribut01 to this profile Is approximately 1 ln 11,810 for
Caucasians. 1 in 13,090 for Blacks, and 1 In 11.960 for Hispanics. The approximate world
nd Ms. ~ are excluded Qs
01-03-AA-01-AA: DNA extact of swab of handle from black knife on kitchen floor {agency exhibit
.
JE04}
The DNA profile is consistent with a mixture. Mr. Desantiago cannot be excluded as a contributor to
the profile at all the STR loci. The probabiUty of selecting an unrelated person at random who could
be a contributor to this profile is approximately 1 in 208 million for Caucasians, 1 In 655.7 million for
Blacks, and 1 in 87.26 million for Hispanics. Mr. Solis·Gonzafez cannot be excluded as a
contributorto the profile atthe STR loci 0851179, 021511, 07S820, 0351358, TH01, 0135317,
0165539, D19S433, vWA, TPOX, D55818, and FGA. At these loci, the probability of selecting an
. unrelated person at random who could be a contributor to this profile is approximately 1 in 376,800
tor Caucasians, 1 in 311,200 for Slacks, and 1 in 175,300 for Hispanics. The approximate world
population is 7.0 billion. Marysol Saldivar,.-~ and Ms.,. are excluded as
contributors to this profile.
01-04·AA-01·AA: DNA extract of swab cf blade from knife In kitchen sink (ageney exhibit JE3B)
The DNA profile is consistent with the DNA profile of Mr. Desantiago. Mr. Desantiago cannot be
excluded as the contributor of the profile. The probability of selecting an unrelated person at
random who could be the source of this DNA profile is approximately 1 !n 2.574 quintillion for
Caucasians, 1 in 263.6 quintiiJion for Blacks, and 1 In 2. 729 quin!illlon for Hispanics. To a
reasonable degree of scientific certainty, Mr. Desantiago Is the source of this profile {excluding
identical twins).
01·12-M.IJ2·AA : DNA extract of staln from blue jeans in ell••••
JE72)
ToUPS 01.2:1.11
Issue Date: August 12,2013
--------------~·~--~-------
...
-·
..
laboratory Case Number · Agency Case Number Offense Date
ELP-121 1-01637 12152050 05/31/2012
Caucasians, 1 in 2.15 sextillion for Blacks, and 1 in 295.4 quintillion for Hfspanics. To a reasonable
degree of scientific certainty, Mr. Solis-Gonzalez Is the source of this profile (exduding identical
twins}.
01-14-AA-OZ·AA: DNA extract cfstaln from shoe lace from upstairs restroom (agency exhibit
JE68)
The DNA profile is consistent with a mixture. Due to the potential number of contributors. no
__ interpretations will be made for the DNA profile.
Of -22-AA-01-AB-AA : DNA extract of staln from rlgtJt Nike shoe from Luis Solis-Gonzalez (agency
exhibit 5208670)
The DNA profile is consistent with a mixture Mr. Desantiago and Maryse/ Saldivar cannot be
excluded as contributors to the profile. The probability of selecting an unrelated person at random
who C(lU/d be a contributor to this profile is approximately 1 in 523 million for Caucasians. 1 in 2.582
billion tor Slacks, and 1 in 91.58 million for Hispanics. The approximate wortd population is 7.0
billion. • - ~ Ms.~. and Mr. So/is-Gonzalez <1re excluded as contributors to this
profile.
01-23·AA.03·AA: DNA extract of stain from black t-shirt from Luis Soils-Gonzalez (agency exhibit
BM03} --.
The DNA profile is consistent with the DNA profile of Mr. Soils-Gonzalez. Mr. Solis·Gonzalez
cannot be excluded as the contributor of the profile. The probabill1y of selecting an unrelated person
at random who could be the source of this DNA profile is approximately 1 In 1.577 sextillion for
Caucasians, 1 in 2.15 sextillion for Blacks, and 1 in 296.4 quintillion for Hispanics. To a reasonable
degree of scientific certainly, Mr. Solis·Gonzalez is the source of this profile (excluding identical
!Wins). ·
01-24-AA-02-AA : DNA extract of stain from Mickey Mouse baseball cap (agency exhibit MMO 11
The DNA profile is consistent with the DNA profile of Mary sol Saldivar. Mary sol Saldivar cannot be
excluded as the contributor of the profile. The probabinty of selecting an unrelated person at
random who could be the source of this DNA profile Is approximalely 1 in 17.77 sextillion for
Caucasians, 1 in 1.324 septillion for Blacks, and 1 in 3.394 sextillion for Hispanics. To a reasonable
degree of scientific certainty, Marysol Saldivar is the source of this profile (excluding identical twins).
01-27-AA-01-AA: DNA extract of stain from tissue paper from Inside of Nlssan Titan (agency
exhibit JE113) .
The DNA profile is consistent with lhe DNA profile of Mr. Desantiago. Mr. Desantiago cannot be
e)(cluded as the contributor of the profile. The probability of selecting an unrelated person at
random who could be the source of this DNA profile Is approximately 1 in 2.574 quintillion lor
Caucasians, 1 in 263.6 quintillion for Blacks, and 1 in 2.729 quintillion far Hispanics. To a
reasonable degree of scientific certainty, Mr. Desantiago is the source of this pro tile (exdudlng
Identical twins).
01-26-AA-02-AA :DNA extract of stain from front of blue Jeans rrom Luis Solis-Gonzalez (agency
exhibit BM01)
The DNA profile is consistent with a mixture. Mr. Desantiago cannot be excluded as the contribulor
of the major component In this profile. The probability of selecting an unrelated person at random
who could be the source of the major component in this profile is approximately 1 in 2.574 quintillion
tor Caucasians. 1 in 263.6 quintillion for Slacks, and 1 in 2.729 quintillion for Hispanics. To a
reasonable degree of scientifiC certainty, Mr. Desantiago is the source of the major component of
this profile (excluding identical twins). Mr_ Soils-Gonzalez :::annot be excluded as a contributor to
the profile at the lod D8S1179, D21S11, D3S1358. TH01, 0135317, 0165539, D19S433, vWA, ````...._
and 055818. At these Jed, the probabilily of selecting an unrelated person at random who cou
a contributor to this profile is approximately 1 in 2,838 for Caucasians, 1 in 6,131 for Blacks,
in 2,865 for Hispanics. The approximate world population is 7.0 billion. Marysol Saldivar.
~. and Ms. t-a are eJ(duded as contributors to this profile_
ToOPS DT ZS 13
issue Date: August 12, 2013
--------1·~------.·-
...
·•
Laboratory Case Number Agency Case Number Offense Date
ELP-1211-01637 12152050 05/31/2012
01-29-AA-01 : DNA extract of known blood from Cll• • • ~(agency oxhibit JEB2)
The DNA profile was used for comparison.
01-30-AA-01 : DNA extract of known blood card from Marysol Saldivar (agency exhibit JESS)
The DNA profile was used for comparison.
01-31-AA-01 : DNA extract of known blood from Eric Desantiago (agency exhibit JE98)
The DNA profile was used for comparison.
01-32-AA-01 : ONA extract of left buccal swab from , . ``(agency exhibit MM·A)
Ttle DNA profile was used for comparison.
01-34-AA-01 : DNA extract of buccal swab from Luis Soils-Gonzalez (agency exhibit 5210932)
The DNA profile was used for comparison.
Investigative leads:
A DNA profile obtained from blue jeans in ~··· ~oom (01·12-AA) has been entered into
the COmbined DNA Index System (COOlS).
The presence of probative DNA evidence may not require that the previously submitted I preserved
trace evidence be examined. For more information abOut Trace evidence analysis and how il may aid
in the investigation, please contact the laboratory.
Disposition:
The swab from the knife blade (01-01-AA-02). the swab from the knife handle (01-01-AA-01). the swab
from the small knife blade (01-02-AA-01 }. the swab from the small knife handle (01-02-AA-02), the
swab from the black knife handle (01-03-AA-01 ). the swab from the knife blade in kitchen sink
{01-04-AA-01), the swab from the right Nike shoe from Luis Soils-Gonzalez (01-22-AA-01-AB), and
the stain from the front of Mr. Solis-Gonzalez's blue jeans (1-28-AA-02) were depleted during the DNA
analysis. The previously collected swabs and the resulting DNA extracts are being retained by this
laboratory. Ple_ase make arrangements to pick up the remaining bulk evidence at your earfiest
convenience.
This report has been electronically prepared and approved by:
Nicolas Ronquillo
DNA Technical Leader
Texas DPS EJ Paso Crime laboratory
T~St'J7.:Z51l
Issue Date: August 12,2013
----------~--------------------
'··
t ' ·,
• -
•
TEXAS DEPARTMENT OF PUBLIC SAFETY
CRJIIE LASORATORY
•
11812 Scott Slm!MIOII
EIPNo,TX7~
Vole a 918-848-4120 Fax 91 G-849~113 ~
,
EIPallOCrlnlti.ab@dpa.taxllll.gaw
CONMISSICIII
Sl'I!'£N CcloloCRAW A. CYJrotAU!OOl CIWII
DIRECTO!t CAI\IN MARCY IIAimi
DAVID G. 1WERVl -RIDE 1\ANI>V WI\TSON
DEf'VTV DIIU!CTORS Supplemental DNA Laboratory Report
Issue Date: Aprll29, 2014
Jorge Estrada Laboratory# ELP-1211.01637
El Paso Ponce Department Agency# 12152050
· 911 N Raynor County El Paso
El Paso. TX 79903 Offense Date 0513112012
Suapect(s): SOLis.GONZALEZ, LUIS (008 04/18/1977)
Vlctlm(s):
Ellmlnatfon(s):
Submission lnfonnatlon:
01 ·_Properly Sealed Large Brown Box on November 12, 2012 by Estrada, Jorge VIA In Person
Requested Anatnis; Perform forensic DNA analysis.
This Is a supplemental report Please refer to the previous reports Issued by Nicolas Ronquillo on May 9,
2013 and August 12,2013. Items 01-29-AA-Q1, 01-3()..AA-Q1, 01-31-AA-01, 01-32-AA-Q1, and
01-34-AA-01 were previously extracted by Nicolas Ronquillo.
Evldenc;e Dncr!Dt!on. Resul§ of Analysis and Interpretation;
Portions of the items were extracted by a'method wt1ich yields DNA.
The DNA isolated was analyzed using STR (Short Tandem Repeat) PCR (Polymerase Chain
Reaction) analysis. The foOowing loci were examined: DSS 1179, 021 S11, 075820, CSF1 PO,
0351358, TH01, 0135317, 0165539, 0281338, 019S433, vWA, TPOX, 018S51, Amelogenin,
D5S818, and FGA.
01-05-AA-01-AA: DNA extract of toilet paper from Marysol Saldivar's crotch area {Item JE17)
The partial DNA profile Is consistent with a mixture. Mr. Soils-Gonzalez cannot be excluded as a
contributor to the profile at the STR loci D8S1179, D21511, 0351358, 0165539, 0195433, vWA,
TPOX, and D5SS18. At these STR loci, the probability of selecting an unrelated person at random
who could be a contributor to this profile is approximately 1 in 30.29 miiUon for Caucasians, 1 in
304.5 million for Blacks, and 1 in 17.05 million for Hispanics. The approximate world population is
7.0 billion.
Ms. Holt, Mr. Desantiago, Ms. Saldivar, and Luis Saldivar are excluded as contributors to this profile.
bDPB 03.o3.14
llllimllliiDIIIIIIIIIm DIU m1111111111111 COURlUf · SERV\CI: • PROTECT10N
---------1· ---
Laboratory Case Number . Agency Case Number Offense Date
ELP-1211-01637 12152050 05131/2012
unrelated person at random who could be a contributor to this profile Is approlCimatety 1 in 930.2
million for Caucasians, 1 in 4.193 billion for Blacks, and 1 In 12.22 billion for Hispanics.
Mr. Solis-Gonzatez cannot be exclUded as a contributor to the profile at the STR loci 021 S 11,
0381358, 016$539, and 05S8, B. At these STR loci, the probability of selecting an unrelated
person at random who could be a contributor to this profile is approximately 1 In 33 for Caucasians,
1 in 64 for Blacks, and 11n 28 for Hispanics. The approXimate world population Is 7.0 billion.
Ms. ~ ~ ~ and Ms. Saldivar are excluded as contributors to this protlle.
01-G6·AA-G3-AA: DNA extract of swab fOr epithelial cella from duct tape from upstairs bath tub
(Item JE24)
No interpretable DNA profiles were obtained.
01-o7-AA..01-AA: DNA extract of stain 1 from piece of duct tape with toilet paper Inside and
under hamper (Item JE20J
The DNA profile Is consistent with a mixture. Mr. Solis-Gonzalez cannot be excluded as a
contributor to the profile at the 8TR loci 0881179, 021811, 07$820, CSF1PO, 0381358, TH01,
0135317,0168539,0198433, vWA, TPOX, 018851,058818, and FGA. At these STR loci, the
probability of selecting an unrelated person at random who could be a contributor to this profile is
approximately 1 in 46.45 billion for Caucasians, , in 38.73 billion for Blacks, and 1·in 27.93 billion for
Hispanics.
Mr. Desantiago cannot be excluded as a contribUtor to the profile at the 8TR loci D8S 1179, 021 S11,
0351358, TH01, 0168539, and vWA. At these STR loci, the probability of selecting an unrelated
person at random who could be a contributor to this profile Is approximately 1 In 593 for
. Caucasians, 1 in 1,210 for Blacks, and 1 ln 298 for Hispanics. The apj,roximate wor1d population is
7.0 billion.
Ms. ~ Ms. Saldivar and • : are excluded as contributors to this profile.
01.07·AA.02·AA : DNA extract of stain 2 from piece of duct tape Inside and under hamper (Item
JE20)
The partial DNA profile Is consistent with a mixture. Ms. ~cannot be excluded as a contributor to
the profile at the 8TR.Iocl 0851179, TH01, 0168539, vWA, TPOX, and 058818. Atthese STR loci,
the probability of selecting an unrelated person at random who could be a contributor to this profile
is approximately 11n 446 for Caucasians, 1 in 428 for Blacks, and 1 in 204 for Hispanics. ·
Mr. Desant1a9o cannot be excluded as a contributor to the profile at the STR loci oas 1179, D21S11,
075&20, 0351358, TH01, 0138317, 0168539, 0281338, 0198433, vWA, TPOX, and 055818. At
these STR loci, the probability of selecting an unrelated person at random who could be a
contributor to this profile is approximately 1 in 13.67 million for Caucasians, 1 in 20.39 million for
Blacks, and 1 In 4.805 million for Hispanics.
Mr. Solis-Gonzalez cannot be excluded as a contributor to the profile at the STR lOCI 0851179,
021811, 03S1358, 0168539, vWA, TPOX, and 058818. At these STR loci, the probability of
selecting an unrelated person at random wt1o could be a contributor to this proflle is approximately 1
in 700 for Caucasians, 1 in 1,351 for Blacks, and 1 in 445 for Hispanics.
1'>DI'B03.0S.14
Issue Date: April 29, 2014 7
• •
Laboratory Case Number Agency Case Number Offense Date
ELP-1211·01637 121~2050 05/3112012
• ~cannot be exCluded as a contributor to the proflle at the 5TR loci 0851179,021511,
0168539, vWA, TPOX, and 055818. At these 8TR loci, the probability of selecting an unrelated
person at random who could be a contributor to this profile is approXimately 1 in 337 for
Caucasians, 11n 916 for Blacks, and 1 in 293 for Hispanics. The approximate world population is
7.0 billion.
01-n7-AA..fj3-AA : DNA extract of stain 3 from piece of duct tape Inside and under hamper (Item
JE20)
No DNA profiles were obtained.
01-n&-AA-02-AA: DNA extract of swab of stain on Inside of duct tape core from ~ . .
``- room (Item JE30)
The DNA profile is consistent witn a mixture. Both Mr. Desantiago and Mr. Solis-Gonzalez cannot be
e:xcluded as a contributor to the profile. The probability of selecting an unrelated person at random
Who could be a contributor to this profile is approXimately 1 in 9.488 million for Caucasians, 1 in
28.79 million tor Blacks, and 11n 4.191 million for Hispanics. The approximate world population Is
7.0 billion.
Ms. ~ Ms. Saldivar, and • ~are .eXCluded as contributors to this profile.
01·09-AA-02-AA : DNA extract of SWllb from stain on duct tape from kids bag with toya from •
- room (Item JE28)
The DNA profile is consistent with a mixture, Mr. Solls-<3onzalez cannot be excluded as a
contributor to t11e profile. The probability of selecting an unrelated person at random who could ba a
contributor to .this profile Is approximately 1 In 676,600 for Caucasians, 1 In 3.309 million for Blacks,
, and 1 In 230,500 for Hispanics.
Mr. Desantiago cannot be excluded as a contributor to the profile at the STR lqci DSS 1179, 021811,
D7S820, CSF1PO, 0351358, TH01, 0135317,0168539, 0251338, 0195433, vWA, TPOX,
D55818, and FGA. At these STR loci, the· probability of selecting an unrelated person at random
who <;:Ould be a contributor to this profile is approXimately 1 In 73,310 for Caucasians, 1 in 305,500
for Blacks, and 11n 17,280 for Hispanics.
Ms. Saldivar caMot be excluded as a contributor to the profile at the STR loci 0881179, 021811,
075820, C8F1PO, TH01, 0135317, 0165539, 019$433, vWA, and 058818. At these 5TR loci,
the probability of selecting an unrelated person at random who could be a contributor to this proflle
is approximately 1 in 898 for Caucasians, 1 in 2,715 for Blacks, and 1 in 451 for Hispanics.
_Ms.~ cannot be excluded as a contributor to the profile at the 5TR loci D85 1179, 075820,
C8F1PO, 0381358, TH01, 0138317, D168539, 0281338, 019$433, vWA, TPOX, and 058818. At
these STR loci, the probability of selecting an unrelated person at random who could be a
contributor to this profile Is approximately 1 in 4,819 for Caucasians, 1 in 16,540 for Blacks, and 1 in
1,748 for Hispanics.
``cannot be exCluded as a contributor to the profile at the STR feel 0851179, 021511,
D7S820, C8F1PO, TH01, 0135317, D16S539, 019$433, vWA, TPOX, and 055818. At ttlese STR
loci, the probability of selecting an unrelated person at random who could be a contributor to this
profile is approximately 1 In 4,892 for Caucasians, 11n 10,170 for Blacks, and 1 In 2,667 for
Hispanics. The approximate world population is 7.0 billion.
01~1 O-AA.02-AA : DNA e.xtract of stain from makeshift finger cast next to vacuum outside of``=~......_
upstairs restroom (Item JE34) ·\'-\CT c0
The DNA profile Is consistent with a mixture. Mt. Soils-Gonzalez cannot be excluded as ~'-J'\ (/``
contributor to the profile. The probability of selecting an unrelated person at random Wh a •P
contributor to this profile Is approximately 11n 85.84 trillion for Caucasians, 1 in 310.3 t
TlOI'S D3.01. 14
Issue Date: April 29, 2014
" .... .
• •
LabOratory Case Number Offense Date
Agency Case Number
ELP-1211-01637 12152050 05/3112012
This report_ has been eleetronicaUy prepared and approved by:
Christine Ceniceros
Forensic Scientist IV
Texas CPS B Paso Crime Laboratory
T>OP!I 01.~.14
Issue Date: April 29, 2014
- ·~------------------------------- --- -------· -------~------------------------------------- ----~-
!' f
• •
TEXAS DEPARTMENT OF PUBLIC SAFETY
CRIME lABORATORY
11112 Scali SJntp.on
El Puo, TX 7U38
Voice 818-149-41211 Ful1~13
EJPiaoCitm.ubGdPI.tuu.aow
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• •
ELP-1211.01637 ·Supplemental Forensic Biology Laboratory Report , July 17,2014
23-08-AA: "Disney" bath towel from crime aeene {ttem JE14)
Apparent blood was detected. Trace evidence was collected. The collected trace evidence has b~
packaged with the evidence. No.Jurtl'ler analysis was conducted at this time.
23-07-AA: Left navy blue kidS sanda1 from crime scene (Item JE16t
Apparent blood was detected. Trace evidence was collected. The collected trace evidence has been
packaged with the evidence. No further analysis was conducted at this time.
23-o8-AA : Two "Lowes" plaatlc bags stuck together from crime scene (JE18)
Apparent blood was detected. Trace evidence was collected. The. collected trace widence naabeen
packaged With the eviden(:e. No further analysis was conducted at this time.
23-oi-AA : "WWlde" pUers from crime scene (Item JE21)
No blood was detected. Trace evidence was coUected. The collected trace evidence has been
padcaged with the evidence. No further analysis was conducted at this time.
23-1Q.AA : "WWnnie the Pooh" bath towel from crime scene (Item JE23)
Apparent blood was detected. Trace evidence was collectecl. The collected trace evidence has been
packaged with the evidence. No further analysis was conducted at this time.
23-11-AA : Black "TN'r' t-ehlrt from crime scene (JE23A)
Apparent blood was detected. Trace evidence was collected. The collected trace evidence has been
packaged with the evidence. No fUrther analysis was conducted at this time. The Item was swabbed
for potential wearer's DNA. ·
23-12-AA : White hand towel from closet under stairs (Item JE26)
Ap!)arent blood was detected. Trace ev\dence was collected. The collected trace evidence has been
packaged with the evidence. No further analysis was conducted at this time.
U-13-AA : Right "Predletlone" high heel ahoe from crime scene (JE4&)
Apparent blood was detected. Trace evidence waa eoDected. The collected trace evidence has been
packaged with the evidence; No further analysis was conducted at this time.
lnveatlQatlye LaadJ and 89qulrtmenta for funtter Analy!\8;
A separate report will be issued upon completion of DNA analysis.
Disposition;
Stains from items 23-01-AA to 2~08-AA, 23-06-AB and 23.1 o-AA to 2~ 13-M were retained to preserve
biological constituents. The remalnlng evidence submitted on April 1, 2014 and the dust pan (Item MCV
37) submitted on Aprll2, 2014 was returned to Officer Ruben Villareal on July 1, 2014.
This report has been electronically prepared and approved by:
Csthey l. Serrano
Forensic Scientist
Texas CPS El Paso Crime Laboratory _
.;;.... . ' J
....
TEXAS DEPARTMENT OF PUBLIC SAFETY
~ LABClRATORY
t1812 Scatt 8llllplon
e Puo, TX 791!!11
L\\
VOice 91 ......120 Fax t1a..a41-4113
I!IP.oCitmeLIIOfps.tuu.p ~ CCiiDII8BICN
A. CYNTHIA U!ON, tiiAIII
-l'lmU!S
p~ .ICtiN80N
IIT'IMiNP. W.CH
Laboratory case Number: ELP,;,1211.01837 RANDYW'TBOII
Supplemental Forensic Biology Laboratory Report
Issue Date: September 19, 2014
Jorge Estrada
B Paso POllee Department
911 N Raynor
El Paso, TX 79903
Agency Case Information: El Paso Pollee Department -12152050
Offensalnfonnatlon: Homicide (S81292}- 0513112012- El Paso County
Suspect(s): SOLIS-GONZALEZ, LUIS (008 04/1811977)
Vlctlm(s): SALDIVAR, MARYSOL (008 05106/1978)
..... ~(008-
DESANTIAGO, ERIC (COB 1212911969}
Ellmlnatlon(t): , -~(COB-) .
Submission Information:
24 • l.arge Square Brown Box. on Aprll 02, 2014 by Estrada, Jorge VIA In Person
28 - large Brown Bag on April 02, 2014 by Estrada, Jorge VIA In Person
27 • Large Brown Box on April 02, 2014 by Estrada, Jorge VIA In Person
Requesf8d Anafvsl!; Screen for biological evidence.
This Is a supplemental Forensic Biology Report. Please refer to the most recent previous report Issued on
July 17, 2014 by Cathey L serrano. A reference to other reports Is alao mentioned on that report.
Eytd!nca Pascrldon. Bnult& of Analysia and lnterpntatlon:
24 : Large Square Brown Box
24-01 : Safety 1st car seat from Nlesan Titan {TX:21 FVB4) (Item JE106)
No visible bloodstains were observed. Trace evidence was collected. The collected trace evidence
has been packaged with the evidence. No further anafytis was conducted at this time.
\
24-02: Car Hat base from Nlaen Titan (TX:21FVB4) (Item JE108)
No visible bloodstains were observed. Trace evidence waa collected. The collected trace evidence
has been packaged wilh the evidence. No further analysis was conducted at this time.
26 : Large Brown Bag
28.01 : Blue "Disney" comforter from residence (Item JE102)
Apparent blood was detected. Trace evidence was collected. The collected trace evidence has. been
pack~ed with the evidence. No further analysis was conducted at this time.
27 ; large Brow~:~ Box
27-4Q.AA: Green stone and dlainond bracelet from residence (Item JE10)
Apparent blood was detected.
ACCIU!DITS) SY THE AMERICAII SOCIETY OF CRill! I.ABORATORY l»RECTTR1f ·LAB Al~-l!iriJ:W..cwJIJ'...J~
.llliilillll.lllll•l•l•ll cwrrsv · SSMCE • PROlECTION 1 of4
_______ __ __
..,.: . ·.
..... ... •I
•
... ELP-1211..01637 forensic Biology Laboratory Report September 19, 2014
27-41-AA: Motorola ''Verizon" cell phone from residence (Item JE12)
No visible bloodstains were obselved. Samples were collected for possible DNA analysis.
2742-AA: Glan shards from residence (Item JE19)
No visible bloodstains were observed. Samples were collected for possible DNA analysis.
27-43-AA: "Piantronlcs" bluetooth ear piece from residence (Item JE27)
No visible bloodstains were observed. Samples were collected tor possible DNA analysis. Trace
evidence was coDected. ·The collected trace evidence has been packaged with the evidence. No
further analysis was conducted at this time.
27-44-AA: Two ptecee of white plutlc f1'om raldence (Item JE29)
No visible bloodstains were observed. Samples were collected for possible QNA analysis.
27-46-AA: Samsung ''Verlzon" cell phone from realdence (Item JE31)
No visible bloodstains were observed. Samples were collected for possible DNA analysis.
27-46-AA : Red blanket from residence (Item JE33)
No blood waa detected. Samples were collected for possible DNA analysis. There were no Indications
of semen. Trace evidence was collected. The collected trace evidence has been packaged with the
evidence. No further analysis was conducted at this time.
27-47 -AA : "Track" back pack with mfscollaneous Items behind rock wall of residence (Item JE3S)
No visible bloodstains weN observed. Samples were collected fer possible DNA analysis. Traee
evidence was collected. The collected trace evidence has been packaged with the evidence. No
further analysis was conducted at· this time.
27-47-AA-01 :Yellow safety vest from baCk pack behind rock wall of residence (Item JE35)
No visible bloodstains were observed. Samples were collected for possible DNA analysis. Trace
evidence was collected. The collected trace evklence has been packaged with the evidence. No
further analysis was conducted at this time.
27-47-AA.02: Right leather glove from back pack behind rock wall of residence (Item JE36)
No visible bloOdstalns were observed. Samples were collected for possible DNA analysis. Trace
evidence was cotleeted. The collected trace evidence ~ been packaged with the evidence. No
further analysis was conducted at this time.
27-47-AA-43 : Sunglasaes from back pack behind rock wall of rasldence (Item JE36)
No visible bloodstains were observed. Samples were collected for possible DNA analysis.
27-47-AA.Q4: Flashlight rrOm back pack behind rock wall of residence (Item JE36)
No visible bloodstains were observed. Samples were collected for possible DNA analysis.
'/:1-47-AA.OS : Hand brace from back pack behind rock wall of reeldence (Item JE36)
No visible b~talns were observed. Samples were collec:led for possible DNA analysis. Trace
evidence was coltected. The collected trace evidence has been packaged with the evidence. No
further analysis was conducted at tills tli'ne.
27-47-AA.OI :Two Husky brand screwdrivers from back pack behind rock wall of resl
..,. '
.
• •
' ,. ELP·1211-G1137 Forensic Biology Laboratory Report September 19, 2014
JE36)
No visible btoodstains wtn observed. Samples were collected for possible DNA analysis.
27-41-AA : Silver-tone cross pendant from residence (Item JE40)
Apparent blood was detected.
27-49-AA: Sliver necklace from reeldence (Item JE41)
Apparent blood was detected.
27-60-AA : Sltver ear ring from residence (Item JE43)
No visible bloodstains were observed. Samples were collected for possible DNA analysis. Trace
evidence was colleded. The collectsd trace evidence has been packaged with the evidence. No
.further analysfs was conducted at this time.
27-61-AA: Glass shards from residence fltem JE37)
No visible bloodslalns were obSerVed. samples were collected for possible DNA anaiY9ls.
27 -62-AA : "Piston Cup" back pack with ctotttlng and toy from Nlasan lltan (TX:21FVB4) (Item
JEt03)
No visible bloodatalna were observed. Samples were collected for possible DNA analysis. Trace
evidence was collected. The collected trace evidence has been packaged with the evtdence. No
further analysis was conducted at this time.
27-62-AA-01: Black "Cars" t-ehlrt from back pack from Nlsaan Titan (TX:21FVB4) (Item JE103)
No visible bloodstains were observed. Samples were collected fot possible ONA analysis. Trace
evidence wa cdlected. The collected trace evidence has been packaged with the evidence. No
further analysis was conducted at this time.
27-62-AA.02 :Gray ehort8 from back pack from NilAn Titan (TX:21FVB4) (Item JE1031
No visible bloodstains were observed. Samples were c:ollec:led for possible DNA analysis. Trace
·evidence waa colleeted. The collected trace evldem:e haa been packaged with the evidence. No
further analysis was conducted at this lime.
2.7-62·AA.03: "Toy Storyn underwear from back pack from Nlsaan Titan tTX:21fVB4) (Item JE~03)
No visible bloodstains were cbservec:1. Samples were c::olleded for possible DNA analysis.· Trace
evidence was collected. The collected trace evidence has been packaged with the evidellCe. No
further analysis was conducted at this time;
27-62-AA-04 : Pair of black social from back pack from Nlaaan lltan (TX:21 FVB4) (Item JE103)
No visible blOOdStains were observed. Samples were eallected for possible DNA analysis. Trace
evidence was coftected. The coUected trace evidence has been packaged with the evidence. No
further analysis was conducted at this time.
27-12-AA-06: Toy figurine from back paek from Nlnan Titan (TX:21FVB4) (Item JE103)
No visible bloodstains were ob5erved. Sample& w«e QOIIected for.posslble DNA analysis.
lnye!tlaatlve Leads lad Reaulrements for FyrtherAnalq!J;
A separate report will be Issued upon completion of DNA analysis.
QJepceltlon;
A portion of Item 26-01 along with swabblngs flom items 27-40.AAto 27-47-AA, 27-47-
27-47-M-08, 27-47-AA-08, 27-48-M to 27·52-AA. and 27·52·AA-Q1 to 27·52-AA-06 wil
,;~ ... , ·.
•
'"' ELP-1211-01837. Fort~nelc Biology Laboratory Report September 19,2014
preserve the biological constituents. We are unable to retain the remaining evidence In our vault. Please
make arrangements to pick up this evidence as soon ae possible.
This report has been electronically prepared and approved by:
Christine Ceniceros
Forensic Scientist IV
Texas DPS El Paso Crime Laboratory