Solis-Gonzalez, Luis

Opinion

~ "-· 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.

• • 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

• •

CERTIFICATE OF SERVICE 51

APPENDICES A-L ATTACHED TO END OF RESPONSE

IV

• • INDEX OF AUTHORITIES ·

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

Bennett v. Paxson, 932 S.W.2d 81 (Tex.App.-E1 Paso 1996, or.ig. proceeding) .................................................. 16

Board ofPardons and Paroles ex rei. Keene v. Court ofAppeals for the Eighth District, 910 S.W.2d 481 (Tex.Crim.App. 1995, orig. proceeding) .................................................. 16

Chase v. State, 448 S.W.3d 6 (Tex.Crim.App. 2014).. . . . . . . . . . . . . . . . . . . 17-18 Getts v. State, 155 S.W.3d 153 (Tex.Crim.App. 2005) ................... 17-18 Pitts v. State, 916 S.W.2d 507 (Tex.Crim.App. 1996) ...................... 46

Prible v. State, 245 S.W.3d 466 (Tex.Crim.App.), cert. denied, 555 U.S. 833, 129 S.Ct. 54, 172 L.Ed.2d 55 (2008) ...................... 43, 47

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

State ex rei. Healy v. McMeans, 884 S.W.2d 772 (Tex.Crim.App. 1994, orig. proceeding) .................................................. 16

Texas Farmers Ins. Co. v. Cooper, 916 S.W.2d 698 (Tex.App.-El Paso 1996, orig. proceeding) ............................................. 16

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

Whitaker v. State, 160 S.W.3d 5 (Tex.Crim.App.), cert. denied, 543 U.S. 864, 125 S.Ct. 194, 160 L.Ed.2d 106 (2004) ............... : .... 43, 47

v

• • STATE STATUTES

TEX. CRIM. PROC. CODE art. 38.43(a) ................................ 19, 43 TEX. CRIM. PROC. CODE art. 38.43(i) ................................ 18, 37 TEX. CRIM. PROC. CODE art. 38.43(j). . . . . . . . . . . . . . . . . . . . . 20-22, 24-25, 35, 38 TEX. CRIM. PROC. CODE art. 38.43(1) ................................... 31 TEX. CRIM. PROC. CODE art. 38.43(m) ............................ 20, 25~26

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

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

HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. S.B. 1292, 83rd Leg., R.S. (May 20, 2013) ............................. 27-29, 35, 37, 43

SENATE COMMITTEE REPORT, Texas Senate Committee on . Criminal Justice, Tex. S.B. 1292, 83rd Leg., R.S. (April11, 2013) .......... 24-26

Tex. S.B. 1292 (introduced version) ...... ' ............................. 24 · Tex. S.B. 1292 (enrolled version). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26, 28

VI

• • STATEMENT OF THE CASE

Luis So lis-Gonzalez, relator, was charged by indictment with capital murder on August 28, 2012. See (tab A of relator's petition). On October 17, 2012, the State filed notice of its intent to seek the death penalty. See (State's Appendix A). The State subsequently filed, on or about April22, 2014, a ''Motion for DNA Testing by the Texas Department of Public Safety, Crime Laboratory pursuant to T.C.C.P., article 38.40," which the trial court granted. See (tabs B-C of relator's petition). On May 13, 2014, the trial court entered a written order setting September 1, 2014, as a deadline for the completion of that DNA testing. See (tab D of relator's petition). On June 5, 2014, the DPS lab advised the trial court by letter that it would be unable to complete the DNA testing by the court-ordered deadline and requested an extension of time until June 1, 2015, to complete the testing. See (tab E or relator's petition).

On June 25, 2014, the trial court advised the parties of its intent to have a pretrial hearing to determine the applicability of article 38.43, to address whether the Legislature considered the delays the recent amendments to article 38.43

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

" ... Speedy Trial rights of the accused and the State[.]" See (tab F of relator's petition). The trial court held this pretrial article 38.43 hearing on October 2, Vll • • 2014, during which it heard evidence and argument. See generally (State's

Appendix B- reporter's record of the October 2, 2014, hearing). In a letter to the defense on October 6, 2014, the trial court requested that the defense identify any necessary piece of evidence it believed the State failed to submit for testing and to provide the justification for such testing. See (State's Appendix C). The record is devoid of the defense's response to this request.

On January 9, 2015, the tria·l court entered a written order opining that article 38.43 "... did not mandate that every single piece of evidence seized by law

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

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

results of evidence that had already been tested, demonstrated " ... substantial compliance with the intent of the statute." See (tab G of relator's petition). Explaining that So lis-Gonzalez had been instructed to identify any necessary piece of evidence the State failed to submit for analysis and the justification for such testing and that So lis-Gonzalez's response did not warrant further delay of his trial, the trial court ordered that Solis-Gonzalez's.trial setting remain on the court's docket for May 8, 2015.

Vlll ·

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

his trial setting until after the DPS lab completed its DNA testing of all the evidence submitted by the State, So lis-Gonzalez now seeks mandamus relief from this Court.

IX

• • STATEMENT OF FACTS

The indictment in this case alleged that So lis-Gonzalez committed capital murder by intentionally and knowingly causing the deathsofMarysol Saldivar, Eric DeSantiago, and C.H during the same criminal transaction. See (tab A of

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

Saldivar's death by striking her about the head with an unknown object, that he caused DeSantiago's death by striking him about the head with an unknown object and by stabbing him about the body with a knife, and that he caused C.H 's death by strangling her with a ligature. See (tab A of relator's petition).

In its initial motion for DNA testing, the State requested that the trial court order the DPS lab to " ... test all items of evidence submitted by the El Paso Police Department containing biological evidence for DNA comparison, pursuant to

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

motion, the trial court ordered the DPS lab to "... test all items submitted by the El Paso Police Department containing biological evidence for DNA comparison." See (tab C of relator's petition). The State's motion and the trial court's order do not indicate that the State and the defense conferred, and agreed, about what evidence contained biological material or that the trial court determined that any

.1

/

• • evidence the State submitted for testing constituted biological evidence required to

be tested under article 38.43.

In the trial court's May 13, 2014, order setting a deadline for the completion of ti?-at DNA testing, the trial court, first noting that it had previously granted the State's motion for DNA testing, further ordered that"... all DNA testing in reference to [this case] be completed by September 1, 2014." See (tab D of relator's petition).

On June 5, 2014, the DPS lab advised the trial court, by letter, that it would be unable to meet the September 1, 2014, deadline, explaining that it lacked the resources to process the ''high volume" of evidence it received from the State by the court-ordered deadline. See (tab E of relator's petition). The DPS lab requested an extension of time until June 1, 2015, to complete that DNA testing. See id.

On June 25, 2014, the trial court advised the parties of its intent to have a pretrial hearing to determine how article 38.43 would be applied in Solis~

Gonzalez's case, to address whether the Legislature took into consideration the delays the recent amendments to article 38.43 would cause the DPS lab, and to consider how those amendments would affect the " ... Speedy Trial rights of the accused and the State[.]" See (tab F of relator's petition). The trial court further

3

• • 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

4

• • 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

5

• • 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,

6

• • 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).

• • 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).

• • 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).

• • 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

10

• • 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,

•

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 • • 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.

13

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

any necessary piece of evidence it believed the State had failed to submit for DNA testing and to provide the justification for such testing. See (State's Appendix C).

On January 9, 2015, the trial court entered a written order opining that article 38.43 " ... did not mandate that every single piece of evidence seized by law enforcement in a [death-penalty case] must be forensically analyzed" and that the evidence presented by the State at the October 2, 2014, hearing, showing the DNA results of evidence that had already been analyzed, demonstrated " ... substantial compliance with the intent of the statute." See (tab G ofrelator's petition). · Explaining that So lis-Gonzalez had been instructed to identify any necessary piece of evidence the State failed to submit for DNA testing and the justification for that testing and that Solis-Gonzalez's response did not warrant further delay of his trial, the trial court ordered that So lis-Gonzalez's trial setting remain on the court's docket for May 8, 2015. See (tab Gofrelator's petition).

Although the record of the pretrial hearing indicates the understanding that So lis-Gonzalez would be making some type of proffer to the trial court, reflecting the necessity of testing all of the State's evidence, (State's Appendix Bat 51), and

pursuant to'Respondent' s April 23rct order and Article 38.43(i)." See (relator's petition at 5, 10). This claim is lll1Supported by the reporter's record of the October 2, 2014, pretrial article 38.43 hearing, as there appears to have been no such proffer made by the defense.

14

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

response or proffer was made to the trial court, see (tab G of relator's petition), that proffer does not appear in the record, and So lis-Gonzalez has not provided any such proffer as part of the record for his mandamus petition.

15

• -· STATE'S RESPONSE TO RELATOR'S PETITION

-Article 38.43 only mandates the testing of biological evidence as defmed by subsection (a), and the trial court is afforded discretion as the "gatekeeper" in determining whether the State has rebutted the presumption that any biological material the defendant requests to be tested constitutes biological evidence required to be_ tested. In this case, the trial court's initial order granting the State's request for DNA testing did not constitute a determination that the evidence the State sought, on its own initiative, to be tested was biological evidence required to be tested under subsection (i). Additionally, the record is devoid of any specific request by Solis-Gonzalez for DNA testing of certain untested biological materiaL But even assuming, arguendo, that So lis-Gonzalez made any such a request, the State sufficiently rebutted any presumption that there existed untested biological material that constituted biological evidence required to be tested. Consequently, the trial court did not abuse its discretion, or violate a ministerial duty, in determining that, in the absence of biological evidence required to be tested, it would not further delay Solis-Gonzalez's triaL

ARGUMENT AND AUTHORITIES

In his sole issue in his petition for writ of mandamus, So lis-Gonzalez asserts that the trial court "... abused his discretion by ordering the Defendant to proceed to trial for a capital offense before the Texas Department of Public Safety performs DNA testing of biological evidence collected as part of the investigation for the offense." See (relator's petition at ii). I. Mandamus standard in criminal cases Because a writ of mandamus is an extraordinary remedy, it is available only when the relator is able to make two showings: first, there must be no other

16

•,,...

•

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

seeks to 'compel must be ministerial, rather than discretionary, in nature. See, e.g., Board ofPardons and Paroles ex ref. Keene v. Court ofAppeals for the Eighth District, 910 S.W.2d 481, 483 (Tex.Crim.App. 1995, orig. proceeding); State ex ref. Healy V. McMeans, 884 S.W.2d 772, 774 crex.Crim.App. 1994, orig.

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

proceeding). In regard to the second element, an act is ministerial in nature if the law clearly spells out the duty to be performed with such certainty that nothing is left to the exercise of discretion or judgment, that is, the relator has a Clear right to the relief sought, and the facts and the law permit the trial court to make but one decision. See State ex ref. Healy v. McMeans, 884 S.W.2d at 774; Texas Farmers Ins. Co. v. Cooper, 916 S.W.2d 698, 700 (Tex.App.-El Paso 1996, orig.

proceeding).

II. Article 38.43 only mandates the testing of biological evidence as defmed by subsection (a), and the trial court is afforded discretion as the "gatekeeper" in determining whether the State has rebutted the presumption that any biological material the defendant requests to be tested constitutes biological evidence required to be tested.

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

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

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

17

• • 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-

18

• • 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).

19

• • 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:

20

• • 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).

21

• • 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

22

• • 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 ·

23

• • 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):

24

• • 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.

25

• • 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

26

• • 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 • • 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 '

28

• • 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.

29

• • 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 • • 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

)

30

• • "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

32

• • 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).

33

• • 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

34

• • 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).

35

• • 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).

36

• • 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

37

• • ''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).

38

• • 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

39

• • 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

40

• • 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

41

• • 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

42

• • 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

43

• •• 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

44

• ,

•

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

45

• • his DNA W<l:S also found on tissues or "makeshift fmger casts" recovered from the

crime scene, including one such ''fmger cast" that was located on Saldivar's crotch area. So lis-Gonzalez's blood was also found underneath C.H 's fmgernails.

Additionally, blood from the victims was found on Solis-Gonzalez's clothing and shoes when he turned himself in, and blood from Saldivar, four-year- old L.S. 'smother, was found on L.S. 's Micky Mouse baseball cap that was collected after Solis-Gonzalez dropped L.S. with his (Solis-Gonzalez's) parents. Moreover, a bloody tissue with DeSantiago's blood was found in Saldivar's truck, the vehicle in which So lis-Gonzalez made his getaway after the murders.

In addition to these DNA results, the State provided the trial court with additional lab reports listing items of evidence containing any untested biological material and items of evidence on which analysts were unable to detect the presence of biological material. See generally (State's Appendices E-L). The State also provided photographs and the crime-scene video for the trial court to review in making its determination as to whether there existed other untested biological material that constituted biological evidence required to be tested under subsection (i). (State's Appendix Bat 5-8, 12-14, 49-51); (States's Appendices D- L).

46

• • The prosecutor further advised the trial court, without objection, that Solis-

Gonzalez provided a statement to the police in which he admitted to breaking into the victims' house earlier in the day and later murdered DeSantiago and Saldivar. (State's Appendix Bat 11); see also Thieleman v. State, 187 S.W.3d 455, 457-58 (Tex.Crim.App. 2005) (holding that undisputed assertions by counsel may be held to have been adoptively admitted by the opposing party if ''the event [that is the subject of those assertions] could not have happened without being noticed" and ''the assertions [are] of the sort that would provoke a denial by opposing counsel if it were not true"); Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App. I996) (''This Court accepts as true factual assertions made by counsel which are not disputed by opposing counsel."). 7 The DNA test results presented to the trial court by the State thus far have · so almost conclusively established Solis-Gonzalez's identity as the individual who, at the very least, murdered DeSantiago and Saldivar that it is unlikely that there exists any other biological material that would serve to negate that proof. If there is any such evidence, the record is devoid of any request by So lis-Gonzalez to test that biological material. ·

7 As previously mentioned, while Sobs-Gonzalez admitted to tying thirteen-year-old C.H.

up inL.S.'s bedroom, he denied killing her. (State's Appendix Bat 11).

47

• • 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

48

• • 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

49

• • 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.

50

• • 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

51

• • 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

52

• • 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

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 aboveifconvicted 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

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

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

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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.

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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

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• • 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

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• • 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

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• 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

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• • 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

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• ·~----

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?

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• • 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.

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--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

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·-- ------------~.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

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• ·-- 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

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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

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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

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• • 27 1 results th~t have been yielded so far. We believe that we .have 2 sufficiently complied with 38.43, and we're asking for the Court 3 to make a ruling basically that not every single piece of 4 evidence be tested for DNA. 5 THE COURT: Ms. Butterworth, let me ask you, how 6 was it determined what to submit to the lab? I.guess what I'm 7 looking for is a -- all -- one from each room or a blood sample 8 from each room? A splattering? Any -- the logic behind that. 9 MS. BUTTERWORTH: The logic -- so far, everything 10 has been turned over to DPS. But the logic is, we're in a 11 position that we're looking at ·what was collected by law 12 enforcement. And I'm not sure if I'm answering the Court's 13 question correctly. But the law states that it's evidence 14 containing biological material. 15 The argument could be made -- and I think this is 16 also something very important for the legislation to keep in 17 mind. The law says it's any piece of evidence that could 18 possibly contain biological material. Well, in this particular 19 case, when the Court looks at the photos and whoever ends up 20 reviewing this decision if we get there, looks at the photos, 21 you can see that a lot of these ite~s have very obvious blood 22 stains. Obviously, we're not scientists. But using our reason 23 and common sense and understanding of what occurs in that house, 24 there's ~ lot of obvious visible blood stains. 25 But then you start looking at, for example, a

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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

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• • 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.

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• ·.....---------

30

1 Q. If you could briefly describe your position or your 2 title within the Texas Department of Public Safety. 3 A. I am the DNA section supervisor and technical leader 4 for the Texas Department of Public Safety crime lab here in El 5 Paso. 6 Q. If you could explain to us briefly your position with 7 DPS regarding this particular case, how it came to you, what 8 problems were presented. Specifically I'd like to talk to -- 9 maybe we could start with -- and for the record, how many pieces 10 of evidence were initially submitted on this particular case? 11 Do you remember? 12 A. There were just a little over 30 initial items for DNA 13 analysis. 14 Q. Okay. So before the new law went into effect, the 15 State of Texas submitted to the Texas Department of Public 16 Safety 30 items -- various items that -- in an attempt to yield 17 DNA relevant -- pertinent DNA to the prosecution or the defense 18 in this case, 30 items were sub~itted. The l~w changed, and 19 then we ended up submitting a total, including I guess the first 20 30, a total of 206 items in this particular case; is th~t 21 correct? 22 A. There were an additional 156 items initially listed on 23 the submission form. However, that has grown to 206 with the 24 initial submission simply because, for example, a backpack was 25 listed. However, there were items within that backpack, and

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• ·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

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• • 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

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• • 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?

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243rd District Court

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.

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• • 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.

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243rd District.Court

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·

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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

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II. PASO COIIDft'Y C:UW:J'IIOtJSE •&a.*±#'~ .

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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

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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.

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RECEIVED BY: \ Sb.e.\ \ N)QCX),X)= .. DATE: · 3'/ l::t I r~ TIME: \fl. : S \ .. '· ----------- • -· -

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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:

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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

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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)

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Vlctrm(s) SALDIVAR, Marysol (COB OSJOenB)

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DESANTIAGO, Eric (DOB 12129169)

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Ellmlnatfon(s) ~~LII~ooa-

Reauested Anatvsl!; Screen fof Biological Evidence.

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-~-,

~, 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.

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··.- .).~'

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.

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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

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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<lucted at this time.

01-13-AA: Jordan tennis shoes from ~- room (agency exhibit JE70)

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.

01·14-AA: Shoe faces from upstaii'S rvstroom (agency exhibit JE&a> _:.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)

....:. ..

.·,·

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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)

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. 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

.....

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'Issue Date: May 09,2013 ----------~·~--------~·~ ...

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TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME LABOI!:ATORY

.

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11GU !k:ot\ Simpson

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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

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• -

•

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. 1W<!R MANNY FI.ORI:S ROBERT J. I!OOISCH. sR. STe\IEN P. MACH C>ERVl -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

Tl<DI'SOUS.I4 Issue Date: Aprl129, 2014

·~---------~·--·

Laboratory Case Number Agency Case Number Offense Date ELP-1211-{)1637 12152050 05/31/2012

Blacks, and 1 In 60.57 trillion for Hispanics.

Mr. Desantiago cannot be excluded as a contributor to the profile at the STR loci D8S 1179, D21511, and TH01. 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 34 for Caucasians, 1 in 34 for Blacks, and 1 in 19 for Hispanics. The approximate world population Is 7.0 billion.

Ms. ~ Ms. Saldivar, • ~ are excluded as contributors to this profile.

01-11-AA..01-AA: DNA extract of swab from finger splint from H . room next to bed (Item JE66)

The DNA profile is consistent with the DNA profile of Mr. Soils-Gonzalez. Mr. Soils-Gonzalez 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 in 1.577 sextillion for Caucasians, 11n 2.15 sextillion for Blacks, and 1 in 296.4 quintillion for Hispanics. To a reasonable degree of scientific certainty, luis Solis·Gonzalez is the source of this proflle (excluding Identical twins).

01-13-AA-02-AA: DNA extract of swab from stain on left Jordan tennis shoe from . . . , .

Sll• • room (Item JE70)

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 In 2.574 quintillion fer Caucasians, 1 In 263.6 quintftllon for Blacks, and 1 In 2.729 quintillion for Hispanics. To a reasonable degree of scientific certainty, Eric Desantiago Is the source of this profile (excluding identical twins).

01-15-AA..02-AA : DNA extract of stain from white t-ahlrt from upstairs restroom floor Cltem JE22)

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 11n 2.574 quintillion for Caucasians, 1 in 263.6 quintillion for ~lacks, and 1 In 2.729 quintillion fer Hispanics. To a reasonable degree of scientific certainty, Eric Desantiago Is the source of this profile (excluding identical twins).

01-15-AA-0~-AA : DNA extract of s'wab from collar of shirt from upstairs restroom ftoor (Item JE22)

The partial DNA profile is consistent with a mixture. Mr. Solis-Gonzalez cannot be excluded as a contributor to the profile at the STR loci 0851179, D21511, 0351358, TH01, D135317, D16S539, 0195433, vWA, TPOX, D5S818, and FGA. At these 5TR loci, the probability of seleCting an unrelated person at random who could be a contributor to this profile is approximately 1 in 21.12 billion for Caucasians. 1 in 42.63 billion for Blacks, and 1 in 10.19 billion for Hispanics. The approximate world population is 7.0 biftlon.

Ms. • M&. Saldivar, • ~and Mr. Desantiago are excluded as contributors to this profile.

01-15-AB-02-AA: DNA extract of stain from pair of white socks from upatalra restroom floor (Item JE22) .

.I 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 coufd be the source of this DNA profile is approXimately 1 in 2.574 quintillion for Caucasians, 1 in 263.6 quintillion for Blacks, and 1 in 2.729 quintillion for Hispanics. To a reasonable degree of scientific certainty, Erlc Desantiago is the source of this profile (excluding Identical twins).

01-16-AA-01 : DNA extract of swabbing from milk gallon In • room (lw·"...~''"· No DNA profiles were obtained.

· 01-17-AA-01-AA-AA : DNA extract of stain from duct tape from Erie Desantiago's head (

Tllllf'8DU3.14 Issue Date: Apri129, 2014 . . ' ..

• ----------

Laboratory Case Number Agency Case Number Offense Date ELP-1211-01637 12152050 05/3112012

The DNA profile is consistent with the DNA profile of Mr. Desantiago. Mr. Desantiago cannot be excluded as the contributor of t'he profile. The probability of selecting an unrelated person ·at random who could be the source of this DNA profile is approximately 11n 2.574 quintillion for Caucasians, 1 in 263.6 quintillion for Blacks, and 1 in 2.729 quintillion for Hispanics. To a reasonable degree of scientific certainty, Ertc Desantiago Is the source of this profile (excluding identical tWins).

01-17 -AB-01-AB-AA : DNA extract of stain from rag removed from Eric Desantiago's head (Item JE99)

The partial DNA profile is consistent with the DNA profile of Mr. Desantiago. Mr. Desantiago cannot be excluded as the contributor of the profile at the STR loci oas 1179, 021511, 0351358, and TH01. At these loci, the probability of selecting an unrelated person at random who could be the source of this DNA profile Is approximately 1 In 3,737 for Caucasians, 1 in 49,410 for Blacks, and 1 in 2,603 fer Hispanics. The approximate wolf population Is 7.0 billion.

Ms. Holt, Ms. Saldivar, and Mr. Solis-Gonzalez are excluded as contributors to this profile.

01-18-AA-01-AA: DNA extract ofswab from right hand flngemall clippings from Eric Desantiago (Item JE94)

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 in 2.574 quintillion for Caucasians, 1 in 263.6 quintillion for Blacks, and 1 In 2.729 quintillion for Hispanics. To a reasonable degree of scientific certainty, Eric Desantiago is the source of this profile (excluding Identical twins).

01·19·AA-01·AA: DNA extract of swab from left hand flngemall clippings from Eric Desantiago {JtemJE95~

The DNA profile is consistent with the DNA profile of Mr. Desantiago. Mr. Desantiago cannot be excluded as the contributor of tt1e 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 for Caucasians, 1 in 263.6 quintillion for Blacks, and 1 in 2.729 quintillion for Hispanics. To a reasonable degree of scientific certainty, Eric Desantiago Is the source of this profile (excluding identical twins).

01-20.AA-01-AA : DNA extract of swab from right hand fingemall clippings from ~ H.

(Item JE78) ·

The DNA profile is consistent with a mixture. Mr. Soils-Gonzalez cannot be excluded as a contributor to the profile. The probabHity of selecting an unrelated person at random who could be a contributor to this profile is approximately 1 In 21.82 trtlllon for Caucasians, 1 in 38.34 trillion for Blacks, and 1 ln 3.932 trillion for Hispanics.

Ms. ~ cannot be excluded as a contributor to the profile at the 5TR loci DSS 1179, 0351358, i TH01, 0135317, D16S539, 0195433, 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 2.436 milnon for Caucasians, 1 in 2.641 miiUon for Blacks, and 1 in 668,000 for Hispanics. The approximate wor1d population Is 7.0 billion.

Ms. Saldivar, • ~nd Mr. Desantiago are excluded as contributors to this profile.

01·22·AB-01-AB-AA: DNA extract of stain from left Nlke shoe from Luis Soils-Gonzalez (Item 5208670)

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 in 2.574 quintillion for Cau~ians, 1 .•,...

in 263.6 quintJIIion for Blacks, and 1 In 2.729 quintillion for Hispanics. To a reasonable d~~Of' 1 ( t-'

1

.<\

sclenliftc ceo1alnty, Erie Desantiago Is lhe sou"'" of lhls profile (excluding ~entical twl:"):o~ +~~ I I

'l'liDPS~_a,,14 ~ ~ Issue Date: April29, 2014 .c ~ of 7 74'0 . ""

C'omrt'·

-----------.----- • Laboratory Case Number Agency Case Number Offense Date ELP-1211..01637 12152050 05/31/2012

01-23-AA-02-AA: DNA extract of stain from black t-shlrt from Luis Soils-Gonzalez (Item BM03)

I The DNA profile Is consistent with the DNA profile of Ms. Saldivar. Ms. Saldivar cannot be excluded as the contributor of the profile. The probability of selecting an unrelated person at random wt1o could be the source of this DNA profile Is approximately 1 in 17.77 sexttlllcn for Caucasians. 1 In 1. 324 septilion 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).

I 01-25-AA-01-AA-AA: DNA extract of swab from M.uysol Saldivar's right fingernail clippings (ltam JcS7)

The DNA profile is consistent with the DNA profile of Ms. Saldlvar. Ms. Saldivar 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 in 17.77 sextillion for Caucasians, 1 in 1.324 septilion 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).

01-25-AB-01-AA-AA : DNA extract swabor from left tlngeman clippings from Marysol Saldivar (Item JE57)

The DNA profile is consistent with the DNA profile of Ms. Saldivar. Ms. Saldivar 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 in 17.77 sextillion for Caucasians, 11n 1.324 septlllon for Blacks, and 1 in 3.394 sextillion for Hispanics. To a reasonable degree of scientific certainty, Marysot Saldivar Is the source of this profile (excluding Identical twins).

01-28~AA~3-AA: DNA extract of stain fro_m back of blue Jeans from Luis Soils-Gonzalez (Item BM01)

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 in 2.574 quintillion for Caucasians, 1 In 263.6 quintillion for Blacks, and 1 in 2.729 quintillion for Hispanics. To a reasonable degree of scientific certainty, Eric Desantiago Is the source of this profile (excluding identical twins).

01-29-AA-01 : DNA extract of known blood from • (agency exhibit JE82)

The DNA profile was used for comparison.

01-30-AA-01 :DNA extract of known blood card from Marysol Saldivar (agency exhibit JESS)

I The DNA profile was used for comparison.

01·31·AA-01 : DNA extract of known blood from Eric Desantiago (agency exhibit JE98)

I The DNA profile was used for comparison.

01-32-AA-01 : DNA extract of left buccal swab from . . . Sll.l(agency exhibit MM·A~ The DNA profile was used for comparison.· 01-34-AA-01 : DNA extract of buccal swab from Luis SoDs-Gonzalez (agency exhibit 5210932)

The DNA profile was used for comparison.

Disposition;

The swab from the duct tape for epithelial cells, the swab from the stain on the duct tape from kid's bag With toys. the stain from the makeshift finger cast. the swab from . . right fingernail clippings, and the stain from back of jeans were depleted during DNA analysis. The remaining stains and~~~~....._ resultlng DNA extracts will be stored to preserve the biological constituents. The bulk evlden retumed to Luis Sarmiento on 8122113.

T>OI'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 S'Tl!III!HC.- COiollllSIIICH Dt!Ol!cTOR ,._ CMH!A u;cN, CHAIIt O...VIO<I,IW<2R -I'LORa ROBIRT J. BOCISCH. 11R. P"'nt JOHN30tl CHI!RYI. -Ririe . fiTEIII!N p. loW:H DEPU'IY DIREGTCRI Laboratory Case Number: ELP-1211-01637 RANDYWII'T-

Supplemental Forensic Biology LabOratory Report Issue Date: June 13, 2014 Jorge Estrada

El Paso Pollee Department .

911 N Raynor

El Paso, TX 79903

Agency Case lnfonnatlon: 8 Paso Pollee Department -12152050 Offanselnfonnatlon: Homicide- 05/3112012 ~ El Paso County Suapect(s): SOLJ5-GONZALEZ, LUIS (DOB 04/18/1977)

Vlctlm(s): SALDIVAR, MARYSOL (008 0510611978)

-.~(008-­

DESANTIAGO, ERIC (008 12129/1969)

Ellmlnatlon(s): ~. -~(008··· ·Submission lnfonnauon:

22 ·Large Brown Box on April 01, 2014 by Estrada, Jorge VIA In Person

Reaunted Anamls: Screen for biological evidence.

This is a supplemental ForensJc Biology report. Please refer to the most recent previous report Issued on April29, 2014 by Christine Ceniceros. A reference to other reports Is also mentioned on that report.

Evidence Cefcdot!on. Result! of Anal'f!ls and lnt!mretat!on:

22 : Large Brown Box

22..01-AA: Polo shirt from autopsy of Eric Desantiago (Item JE85)

Apparent blood was detected. Trace evidence was collected. The collected trace evidence haS been.

packaged with the evidence. No further analy11s was conducted at this time. · 22..02-AA : Gray tank top from autopsy of Eric Desantiago (Item JE86)

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.

22..03-AA : Mens navY blue b~ from autopsy of Eric Desantiago (Item JE87)

Apparent blood was detected. Trace 'evidence was collected. The collected trace evidence has been packaged witt1 the evidence .. No further analysis was conducted at this time.

22..04-AA: Khaki pants With black belt from autopsy of Eric Desantiago (Item JE88)

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.

22..05-AA : Pair of brown socks from autopey ol Eric Deaantlago (Item JE89)

Apparent blood was detected. Trace evidence was collected. The collected trace evidence h [\CT C packaged with the evidence. No further analysis was conducted at this time. ~~'\\l. Ott• 22-06-AA : Pair of Brahma work boofs from autopsy of Eric Desantiago (Item JESOJ ~ ~ -.;.

•P

Apparent blood was detected. Trace evidence was collected. The collected trace evid . ha · packaged with the evidence. No further. analysis was conducted at this time. ~ · ~ ..0 .~ TliDPeae.m. ACCREDITED BYTHE'AAERICAH SOCfS!Y OF CRIMe l.ASORATORYDIRE'CTORS • LABACCiteDITA170N 8 ~ ~

14

IIB••niiiiiii•DIIIIIIMIIIII couRTESY· SERVICE· PROTEC110N °c-0 u . -

-------------------- -·

ELP-1211..01637 Supplemental Forensic Biology Laboratory Report June 13, 2014

22..07-AA: Black wallet from autopsy of Eric Desantiago (Item JE91)

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. · 22..08-AA : Blackberry cell phone with holster from autopsy of Ertc Deaantiago (Item JE92)

Apparent blood was detected on cell phone holster. No stains having the appearence of blood were observed on the cell phone. Trace evidence was collected from the· cell phone holster. The collected trace evidence has been packaged with the evidence. No further analysis was conducted at this time.

22.09 : Whits envelope from medical examiner's omce labeled pulled head hair from Eric:

Desantiago (Item JE93) · No analysis was performed.

22·10-AA! Brown paper bag removed flam Eric Desantiago's right hand at autopsy (Item JE98)

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.

22-11-AA : Brown paper bag removed from Eric Desantiago's left hand at autopsy (Item JE97)

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.

22~12-AA : White sheet removed from body bag at autopsy of Eric Desantiago (Item JE100)

Apparen~ 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.

22·13-AA: Lip balm (Soft Ups) tram autopsy of Ertc Desantiago (Item JE101)

Apparent blood was detected.

22·14-AA: Purple tank top from autopsy of . . (Item JE73)

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.

22·15-AA: Purple bra from autopsy of . . . (Item JE74)

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.

22·18-AA: Pink panties from autopsy of 111 . . (Item JE75)

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.

22·17-AA: Blue socks from autopsy of H.{ltem JE76)

Nc blocd was detected. Trace evidence was collected. The collected trace evidence has been packaged with the evidence. No further analysis was conducted at this time.

22-18 : White enVelope from medical examiner's office labeled pulled head hair from Cll• • • . . (Item JET7)

No analysis was performed.

22·19-AA: Brown paper bag removed from C -right hand at autopsy (Item JE80)

No stains having the appea!'iilnce of blood were observed.

22-20-AA: Brown paper bag removed from . . left hand at autopsy (Item JE81)

No blood was deteeted.

22-21-AA : Possible duct tape adhesive from autopsy ol ~··· . . (Item JE84)

Sample was collected for possible DNA analysis.

!nvesUgatlve Leads and Reaulrements for Further Analysis;

This is a preliminary report. A separate report will be issued upon completion of DNA analysis.

PI! Position;

Stains from items 22-()1-AA through 22..()8-AA, 22·1CI-AA through 22-16-AA and 22·21-AA :aM"""'I~ retained to preserve biological constituent$. The remaining evidence will be retained by thi ,. • j • • ~·

ELP-1211..01637 Supplemental Forensic Biology Laboratory Report June 13, 2014

pending completion of Forensic Biology analysis.

This report has been electronically prepared and approved by:

Cathey L. Serrano Forensic Scientist Ill Texas DPS El Paso Crime Laboratory

.•

• • TEXAS DEPARTMENT OF PUBLIC SAFETY CRIIII!i LABORATORY

1fl12 5caUiillmpiCII ~.

\WJ

El Palo, 'IX 79138

Volo811~12D Pu 116-848-4113

EIPaoCIIm~.~

m\181 e. MaCRAW COI.Ioll88Jellj DlRI!crnlll A CYNlttA U!ClN, Cl-IAIR c.t.WlG.IIAKI!I\ IWOIYI'\.OAQJ RC:SI!fi'T J. BODISOI, M. FA!n4 -IOHN80N CHERYLMII<IIRIOB BTE\IeH P. MACH DIII'IJTY 111/II!C T'CIIS laboratory Case Number: ELP-1211-01637 RANDY MT'8CIH

Supplemental Forensic Biology Laboratory Report Issue Date: June 17, 2014 Jorge Estrada El Paso Police Department 911 N Raynor El Paso, TX 79903 Agency Case lntonnation: El Paso Police Department -12152050 Offense lnfonnatton: Homicide- 05131/2012- EJ Paso County

suapect(a): SOLis-GONZALEZ, LUIS (008 04/1811977)

Vlctimfs): SALDIVAR, MAR':(SOL (DOB 05106/1978)

•• (008-)

DESANTIAGO, ERIC (DOB 12129/1969)

Elimination~ a): • • . • ,.,_(008 Submission lnfonnatlon:

25 ·Large Brown Paper 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

Reayested Analysts; Screen for biological evidence.

This is a supplemental Forensic Biology LaboratOty Report. Please refer to the most recent previous report issued on June 13, 2014 by Cathey L. Serrano. A reference to other reports is also mentiOT'led on that re~ '

Evldenct De!srlption. Retult! of Anatvsis and lntemretat!on;

25 : Large Brown Paper Bag 25-01 :Dust pan from residence (Item MCV-37)

No visible bloodstalns were observed. The Item was swabbed for potential DNA.

25-02·AA : Debris from dust pan from residence (Item MCV-37)

No blood was detected.

T1 : Large Brown Box 27..01-AA: Blue and gray tennis shoes from . . . -~(Item MM02)

No 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.

21-02-AA: Spldennan socks from . . . ~ (Item MM03)

No visible bloodstains were observed. Trace evidence was collected. The collected trace evidence has-been packaged with the evidence. No further analysis was conducted at this time.

27..03·AA: ·roy Stvryn themed boys underwear from I • " S Item MM04)

No visible bloodstains were observed. Trace evidence was collected. The collected t -~ ol./ has been packaged with the eviden.ce. No further analysis was conducted at this ti . ~..,.~~P 27 -04-AA ; Red pajama pant from ' • • S-(ttem MMOS) ~ .

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ELP-1211-01637 Supplemental Forensic Biology Laboratory Report June 17, 2014

No 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.

27..05-AA: Black "Angry Blrde"lheme t-ehlrt from • - Item MM06)

A presumptive t.ast Indicates the presence of blood. Trace evidence was collected. The collected trace evidence has been packaged with the evidence. No further analysis was conducted at this time.

27 .06-AA : Blue "Angry Blrda" theme t-shlrt from ~ - (Jtem MM07)

No 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.

27.07: Envelope containing swab from inside baseball cap MM01 (Item MM..C)

No analysis was performed beacause the item was previously analyzed.

27-08-AA : Blue with yellow stripes polo shirt from suspect Soils-GonzaleZ (Item BM02)

No visible bloodstains were observed. Trace evidence was collected. The collected trace evidence has been paCkaged with the evidence. No further analysis was conducted at this time.

27..09·: Envelope containing swabs from pants from Soils-Gonzalez BM01 (Item BMA)

No analysis was performed because the \tern was previously analyzed .

. 27·10: Envelope containing IW'Ibs from,pan1B from Soils-Gonzalez BM01 (Item BMB)

No analysis was performed because the Item was previously analyzed.

21·11 : Envelope containing swabs from panta from Soils-Gonzalez BM01 {Item BMC} No analysis was performed because the item was previously analyzed.

27·12 : Envelope containing swabs from pan1s from Salle-Gonzalez BM01 (Item BMD) · No analysis was performed because the item was previously analyzed.

27·13: Envelope containing swabs from pants from Soils-Gonzalez BM01 (ltam BME)

No analysis was performed because the item was previously analyzed.

27·14: Envelope containing swabs from pan1s from Soils-Gonzalez BM01 (ltam BMF} No analysis was performed because the Item was previously analyzed.

27·15: Envelope containing swabs from panta from Soils-Gonzalez BM01 (\t&m BMG)

No analysis was performed because the Item was previously analyzed.

'

27-16: Envelope containing swabs from left Nlke a hoe 5208670 from Sofia-Gonzalez (Item BMH)

No analysis was performed because the Item was previously analyzed, 27-17 :Envelope containing swabs from left Nlke shoe 6208670 from Soils-Gonzalez (Item BMI)

No analysis was perfcrmed because the item was previously analyzed.

27-18 : Envelope containing swabs from left Nlke shoe 6208670 from Soils-Gonzalez (Item BMJ)

No analysis was performed because the item was previously analyzed.

27-19 : Envelope containing swabs from left Nlke shoe 5208&70 from Soils-Gonzalez {Item BMK)

No analysis was performed because the rtem was previOusly analyzed.

27-20 : Envelope containing awabs from left Nlke shoe 5208670 from Soils-Gonzalez (Item BML)

No analysis was performed because the item was previously analyzed.

27·21 : Envelope containing swaba from left Nlka shoe 5208670 from Sella-Gonzalez (Item BMM)

No analysis was performed because the item was previously analyzed.

27-22: Envelope containing swabs from left Nlke shoe 6208670 from Soils-Gonzalez (Item BMN)

No analysis was performed because the item was previously analyzed.

27-23 : Envelope containing swabs from right Nlke shoe 5208670 from Soils-Gonzalez (Item BMO)

No analysis waa perfcrmed because the item was previously analyzed.

27-24 : Envelope containing swabs from right Nlke shoe 5208670 from Solis-Gon..... L~~....""· No analysis was performed because the item was previously analyzed.

27-25: Envelope containing swabs from right Mike shoe 5208870 from Soils-Go

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! ELP-1211-01637 Supplemental Forensic Biology Laboratory Report June 17, 2014

No analysis was perfOrmed beCause the item was previously analyzed.

27-28: Envelope containing swabs from right Nlka.ahoe 5208670 from Soils-Gonzalez (Item BMR} No analysis was perfonned because the item was previously analyzed.

27-27 : Envelope containing swaba from right Nlke shoe 5208670 from Soils-Gonzalez (ham SMS)

No analysis was performed because the item was previously analyzed.

27-28 : Envelope containing swabs from right Nlke shoe 5208670 from Sotls-Gonzalez (Item BMT)

No analysis was performed beCause the Item was previously analyzed.

27 ·29 : Envelope containing swabs from right Nlke shoe 5208870 from Soils-Gonzalez (Item BMU)

No analysis was perfonned because the item was previously analyzed.

27-30-AA: Ankle bracelet from Holfs autopsy (Item JE83)

No visible bloodstains were observed.

27-31-AA : Black cloth belt from Soils-Gonzalez (Item 5208673)

No visible bloodstains. were observed. Trace evidence was colleded. The collected trace evidence has been packaged with the evidence. No further analysis was conducted at this time.

27-32-AA: Pantech cell phone from Soils-Gonzalez (Item ML-G2)

No visible bloodstains were observed.

27·33-AA: Btue Un cup from residence (Item JE62)

Samples were collected for possible DNA analysis. No visible bloodstains were observed.

27-34-AA: Mazola oil bottle from residence (Item JE63)

Samples were collected for possible DNA analysis. No visible bloodstains were observed.

27-35-AA: 3L Diet Coke plastic bOttle from residence (Item JE71)

Samples were collected for possible DNA analysis. No visible bloodstains were observed.

27-36-AA: Necklace with heart pendant from M. Saldivar's autopsy (Item JE52)

A presumptive test indicates the presence of blood. Trace evidence was collected. The collected trace evidence has been packaged with the evidence. No further analysis was conducted at this time.

27-37 -AA : Bracelet from M. Saldivar's autopsy (Item JE53) · A presumptive test indicates the presence of blood. Trace evidence was collected. The collected trace evidence has been packaged with the evidence. No further analysis was conducted at this time.

27-38-AA: Ear rtng from M. Saldivar'& autopsy (Hem JEM)

A presumptive test indicates the presence of blood.

27-39 : Envelope containing swabs of black t-ehlrt BM03 from Soils-Gonzalez (Item BMV)

No analysis was performed beCause the item was previously analyzed.

lnvutJgatiye Lead! and Reautmments for Further Analysis;

A separate report will be issued upon completion of DNA at~alysis.

Disposition:

Swabs from ltems 25-01 handle, 27-33-AA, 27-34-AA, 27-35-AA; 27·36-AA, 27-37-AA, 27·38-AAand a stain from item 27·05-AA will be stored to preserve the biological constituents. The remaining evidence will be retained by this laboratory pending completiOn of Forensic Biology analysis.

This report has been electronically prepared and approved by:

Christine Ceniceros

Forensic Scientist IV

Texas DPS El Paso Crime Laboratory

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TEXAS DEPARTMENT OF PUBLIC SAFETY CRIIE LABORATORY

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El.._, TX 71931

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Supplemental Forensic Slofogy Laboratory Report Issue Date: July 17, 2014 Jorge Estrada

El Paso Pollee Department 911 N Raynor ·

8 Paso, TX 79903

Agency Cue Information: 8 Paso Pollee Department- 12152050 Offensalnfonnatlon: Homicide (SB 1292)- 0513112012- 8 Paso County Suspect(a): SOUS-GONZALEZ. LUIS (008 0411811977)

Vlctim(s): SALDIVAR, MARYSOL (OOB 0510811978)

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DESANTIAGO, ERIC (COB 1212911969)

E11mlnat1on(a): ~.-~(COB-

Submission lnfonnatlon:

23- Large Brown Box on April 01, 2014 by Estrada, Jorge VlAin Person

Regy!lted Analysis; Screen for biological evidence.

This is a supplemental Forensic Biology Report. Please refer to the most recent previous report Issued on June 17, 2014 by Christine Ceniceros: A reference to other reports Ia also mentioned on that report.

· E!Jdeoct pucrlptlon. Results o(Analu!a and Interpretation;

23 : Large Brcwn Box

23-01-AA : "Goodness" oven mitten from kitchen elnk at crime acene (Item JE08)

Apparent blood was.detected. Trace evidence was collected. The coDected trace evidence has been packaged with the evidence. No fUrther analysis was conduclea at this time.

23..02.AA : Table runner frOm crtme scene (Item JED&)

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.

23-43-AA : Red and black checkered blanket from crime scene (Item JE091 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 lime.

23-04-AA : Left "Predlctlone" high heel shoe from crime scene (Hem JE11AJ Apparent blood was detected. Trace evidence was collected. The collected trace evidence has been packaged with the evidence. No further analysis wae conducted at this time.

23-05-AA : White bath towel With pink trim from crime scene (Item JE13)

Apparent blood was detected. Trace evidence was collected. The collected trace evidiii!!Smll!lwm packaged with the evidence. No further analysis was conducted at this time. · ."\\l-\CT Colr 23-06-AB :White hand towel from crfme scene (Item JE13) ~.., ~,.

Apparent blood was detected. Trace evidence was collected. The collected ~ *en. '

packaged with the evidence. No further analysis was conducted at this time. r~~ r~> t'" ."'!!::

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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

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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.

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... 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

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• • ' ,. 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

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'"' 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