                       GUSTAVO L. MIRELES
                        3001 S. EMILY DR.
                          McCONNELL UNIT
                      BEEVILLE, TEXAS 78102

March 14, 2015

Texas Court of Criminal Appeals
Attn: Hon. Abel Acosta (Clerk)
P.O. Box 12308
Capitol Station
Austin, Texas 78711

Dear Clerk:
     If you could would you please be so kind and file this
Application for Writ of Mandamus in the appropiate court.
     If this application is not properly addressed, can you
please be so kind and notify me and/or return the application
with instructions to correct the error.
     Thank you for your time and attention to this very important
and urgent matter. Please notify me when filed.
Sincerly,

/s~ra/xwa il- flll,Mkz
Gus~vo L. Mireles

ENCLOSURES:
CC: File, Leonor Matano 580 Irene Dr., canyon-Lake, Texas 78133;
    she has "power of attorney•.


                                              This document contains some
                                              pages ~hat are of poor quality
                                              at the t1me of imaging.




                                                                       i
                                                                       1
                                                                       \




                                                                               l
                          MOTION FOR LEAVE
             IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                          AT AUSTIN, TEXAS

GUSTAVO LOPEZ MIRELES               §

      APPLICANT
                                    §
Vs.                                 §   NO~----------------------

HIDALGO COUNTY DISTRICT ATTORNEY§                   This document contains some
OFFICE, RENE GUERRA, AND THE    §                   pages that are of pooli' qMaRn~
McALLEN TEXAS DEPARTMENT OF                         at the time of imagililQJ.   ··
PUBLIC SAFETY DNA CRIME FIELD
LABORATORY SEROLOGIST ORLANDO   §
OCHOA, 139TH DISTRICT COURT
JUDGE BOBBY FLORES
     RESPONDENTS                §
                  Motion for Leave to File J.tpplication
                          For WRIT OF MANDAMUS

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      NOW COMES, Gustavo Lopez Mireles, applicant, complaining of,

District Attorney Rene Guerra, and Serologist Orlando Ochoa,

respondents and pursuant to Rule 52.1 of the Texas Rules of

Appellate Procedure (former Rule 211)      in Cri~ inal Cas~s, moves

this court to grant leave to file this application for a writ of

mandamus tendered contenpuraneously with this motion.

      Applicant prays that the Motion be     gran~ed, the said
application for Mandamus be filed and set down for a hearing,

that the relief requested be granl:~d, general and special,

including a stay of proceedings below until the matters ,; .. t        ~l

complained of in said atppl ication are,\cured.

                                                   Res~ec::uly Submitted
                                             /s/_ gQ~          (11~
                                                                  J.
                                               Applicant Pro-se
                                               Gustavo L. Mireles
                                               TDCJ-ID #1128895
                                               3001 S. Emily Dr.
                                               McConnell unit
                                               Beeville, Texas 78102
                      CERTIFICATE OF SERVICE
I hearby certify that a copy of the above Motion for Leave
to file application for Wri t of Mandamus was d)=iliver~e,d pr mailed
to Respondent at Responden.t•'s adress, on this /Ji"':~-~-20<14.
                            1



                                                  /s/   ~-of~~~
                                               ··Apllicant Pro-se
                            IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                                         AT AUSTIN TEXAS

GUSTAVO LOPEZ MIRELES
                                                               §
       APPLICANT

Vs .
                                                               § NO--------------------------
 HIDALGO COUNTY DISTRICT ATTORNEY~
 OFFICE, RENE GUERRA, AND THE    §
 McALLEN, TEXAS DEPARTMENT OF
 PUBLIC SAFETY DNA CRIME FIELD                                          ':'

 LABORATORY SEROLOGIST, ORLANDO
 OCHOA, !39TH DISTRICT COURT      §
JUDGE BOBBY
       ~  ··.rr. . .
                     FLORES
            ~ r"\ " - .. ': ~-- ..

      ..,l~E·s J? b'NnE'N Ts     §   .   •




                                               APPLICATION FOR MANDAMUS

TO THE HONORABLE COURT OF CRIMNAL APPEALS OF TEXAS:

       NOW COMES, Gustavo                            Lope~   Mireles, applicant, and asks this

court to issue a Writ of Mandamus to Hidalgo County Texas

District Attorney.!.<:;:; .~OJ f't&:t?...                ··:, and McAllen, Texas Department of

Public Safety DNA                            Cri~e   Field Laboratory serologist, Orlando

Ochoa,     respondents,                        to require respondent describe relief

requested and in support of this application would show this

court the following; concerning Motion for Court of Inquiry and
motion for Diclosure.
                                                              I .
                                                     FACTUAL BACKGROUND

       Applicant filed a                         ~otion      to conduct a Court of Inquiry

on June 10, 2014. The motion was denied due to lack of substancial

facts to establish probable cause for conducting a ~ourt of

Inquiry on August 14, 2014.                              (See attach-ed Exhibit-A).A.ppl:Lca.nt's

motion consists of overwhelming substancial facts that in the

"Intrest of Justice" establish "'Probable Cause", to Conduct the

Court of Inquiry requested, .in Trial Cause No. CR-3196-01-F.

(a) The Legislature of Texas in April 1, 2001, enacted laws to
govern all Texas Department of Public Saf~lty DNA Crlime FieB'J
Laboratories  analytical standards for quality assurance and!
proficency testing for forensic DNA analysis on c~imlbal cas~s.


                                                                    l
(b) The Texas Department of Public Safety DNA database must and
had to be compatible with the national identification index
system (COOlS) used by the FBI to the extent required by the FBI
to permit the useful exchange and storage of DNA records or
information derived from those records.
(c) The Texas Department of Public·safety Crime Field Laborato-
ries were required by Texas Lagislative Law, to establish stand~
ards for DNA analysis by any of it's DNA laboratories that meet
or exceeded the quality assurance standards issued by the FBI.
(d) If this quality assurance standards were not met, the
director of the laboratory in violation of these standards as
established by Le~iiative Law, was obligated to prohibit the
laboratory from exchanging DNA records or analysis with another
DNA laboratory or criminal juestice or law enforcement agency.
(e) The record shows this honorable court, that the quality
assurance standards when testing DNA forensic analysis, issued
by the FBI were not met or exceeded, in this instant case. The
standards utilized by the McAllen Department~of Public Safety
DNA Crime Field laboratory and it's serologi~\Olando ochoa, did
not even come close to the standards issued by the FBI.
(f) The offnese charged to the Appellant of First Degree Murder,
had not even taken place yet. The appellant was charged with the
offense by indictment to have been commited on or about'"'- ··~:r::; ~~:   ·
June 23, 2001, 8 moths after the Texas Legislature enacted these
DNA analytical mthodology standards, and they're requirments.
(g) Appellant was entiltled by due process constitutional right
the right to have these Texas Laws applied to the DNA analysis
of this instant case. (Trial Cause No. CR-3196-01-F).
(h) Every agency that is established in the      State of Texas, must
abide by Texas Laws. If any agency violates      this Laws and causes
harm to another in the process, that agency      commits a crime
against the State of Texas; pursuant to the      Texas Penal code.
(2) Denial to conduct the Court of Inquiry was recived from the

!39th district court on August 22, 2014, through TDCJ McConnell

Unitm, 3001 s. Emily Dr., Beeville, Texas, Mail room service.

Appellant's motion to conduct the Court of Inquiry was not

addressed to be filed in the !39th district court, but instead

to the 206th district court, where judge Rose Guerra Reyna is

the presiding judge.    (see attached exhibit-A).    Appellate Clerk

Alexandra Gomes,   took it upon herself, in violation of the TCCP.

Art. 2.21, and filed the motion in the 332nd district court,

where accussed defendant Mario Ramirez Jr. presides. dfter the
                                                         I




App;ll''-'.::ant inquired of the motion's desposition, through the

ap~~Jiant's sister,    Leonor Matano, 580 Irene Dr. Canyon-Lake, Tx.
                                    2
                                        I I.
                            REQUEST FOR RELIEF

       Applicant asks this Honorable court to issue a Cdurt Order

pursuant to this PMinistrial Act", for the Court of Inquiry to

be   co~ducted.   Cr~es   have been committed against the State of

Texas and against the applicant, by the Responden:..tl 's failure

to uphold i:.he laws enacted by the States Legislature.

                                   I II.
                            J!JRI SPI CTION
       This court has jurisdiction to consider this application

pursuant to Art. 5,5 of the Texas Constitution and Art. 4.04 of

the Code of Criminal Procedure;          to include Art.      1~04,1.05.

                                     IV.
                          AUTHORITIES AND ARGUMENT

       On December 12, 2001 State's Forensic expert, serolog~st

Orlando Ochoa of the McAllen, Texas D.P.S. Crime Field Laboratory

conducted a DNA analysis concerning the Capitol Murder of victim

r1ary Jane Rebollar; and     COL\   paring the DNA left behind at the        . it

cx:lime scene to the Applicant's DNA sample. Analyst Orlando Ochoa

on August 6, 2001, testified at trial 332nd district court; that

for a basis for his DNA analysis of the case he had used the

Co~bined DNA Index System       (coors),       na~ional   DNA database computer

system.      (See attached exhibit-B1RR. Vol 9. pgs 20-21).

       The    DNA Database System       that state expert analyst Orlando

Ochoa was refering to was the DNA Database System in SUBCHAPTER

G. of the Executive Brabch DepartBent of Public Safety Title 4

Ch. 411. By analyst Orlando Ochoa, utilizing the               coors   DNA

Database System to conduct the DNA analysis of this case, he

was obligated and required pursuant to section § 411.142 (a)

through (h)     to conduct the DNA analysis to either meet or exceed

the current standards for quality assurance


                                         3
                                                  'I
 and proficiency testing for                 fore~sic         DNA analysis issued by the

 Federal Bureau of Investigation,                       (FBI), (See attached exhibit B-2)

         Orlando Ochoa, was further required to ensure that the DNA

 database was compatible with the national DNA iden.t)ification

 index system (CODIS) or Combined DNA Index System; used by the

 FBI to the extent required by the FBI to permit the useful

 exchange and storage of DNA records or information derived from

 those    re~ords,      concerning the investigation of a crime, regard·-

 1 e s s o f or g i n , ( See at t a c he d ex h i b i t   -B-l .a t.    (b ) ( f ) ( g ) (h ),

 This subchapter G. of the DNA Database system was Added by Acts

 of 1995, 74th Legislature Ch. 595, § 1. eff. Sept 1, 1995.

 Amended by Acts 2001, 77th Leg. Ch. 2,                          § 4, eff. April 5, 2001.

 Orlando Ochoa conducted the DNA                       an~lysis         in this instant case in

 December 12, 2001, eight months after the Legislature enacted

 this laws. The DNA analysis in this instant case were subject

 to these requirments, set by the FBI CODIS,

         In order to meet or exceed the FBI's quality assurance and

 proficiency DNA testing for forensic DNA analysis, the DNA

 protocols and standard operating procedures require a finding and

 search at a minimum of 13 defrent loci, from the crime scene DNA

 samples to a suspect's DNA sample. This 13 Core                                 coors    loci search

 and match must be met,              in order for Orlando Ochoa to conclude and

 testify at trial that he had made a,                         ,. Consistant Match", a

 ''Source attribution Match", a Positive Match", a                                 "Randum Match

 Probability:          However, Orlando Ochoa testified under oath at

 trial that he only searched for 9 loci, and compared only 9 loci

 from the      c~ime    scene DNA to the appellant's DNA sample, Further,

 he testified that he had only been able to match 2 to 3 loci

 from both samples, when conducting the analysis.(See attached
exhibit-~~pgs 23-24)•
                                                   4
      .Orlando   Ocho~,    further testified that concerning skin

samples, blood, that had been embedded underneath the victim's

Mary Jane Rebollar 1 s fingernails,               that because he had managed to

match 2 loci,i he told the jury, that this DNA belonged to

~he   victim,    instead of some other person. (See attached exhibit-&f

pgs    25-26), The Appellant was excluded as being the contributor

to    that DNA, Orlando Ochoa knew about the 13 COOlS core loci

requirment, because he testified that it was not uncommon for

DNA analyst to look at the 13 regions to make it more specific

to an individual. (See attched exhibit-&1-at pg 32).                It didn't

matter to Orlando Ochoa,          if he was complying with the DNA data-

base requirments or not       1   if he matched only 2 loci, to him it

was a match, and that was that. (See attached exhibit-&1at pg

34~35).   It is clear and convincing that Orlando Ochoa knew

about the requirments set forth              qy    the FBI which require a match

of 13 diffrent loci from the crime scene DNA to the appellant's

DNA sample, in order to testify that he made a match.                 It is

clear and convincing that Ochoa, choose not to follow standard

operating procedures. He utilized the DNA Database System, but

instead of following protocol, set his own DNA analytical

guidelines       in violation of legislative laws.

(4) Due to the reasons stated above, the appellant further

contested in his motion that Orlando Ochoa had committed crimes

against the state of Texas.          (1) Aggravated Perjury Texas Penal
Code § 37.03,      (2)   False Report to a Peace Officer or Law Enforce-

ment agency, Texas Penal Code §37.08) (3) Tampering Wither

Fabricating Physical Evidence, Texas Penal Code§ 37.09. (a),

(1)   (2).



                                              5
                                       --.
(4) Tampering With a Goverment Record, Texas Penal code                                 §
37.10, (a)    (l)    (2)    (3)    (4)   (5)   (6),    Orlando Ochoa, committed

such crimes against the state of Texas when he .knowingly made the

false entry and alteration of a goverment record, when he

submitted as reliable evidence his DNA analysis of this instant

case, ~nowing that it was fruadulent, and misleading.                                 He further

knew that his DNA analysis did not meet or exceed the FBI's                                      coors
national     Inde~    system's quality assurance and proficiency DNA

testing forensic standards, but he still choose to testify at

trial that his analysis were true and correct.                         Ochoa's trial

testimo~y     and DNA test results are the only evidence that the

state relied upon to obtain this instant conviction.

The McAllen Texas DPS Crime Field Laboratory, and it's directors

Thomas A,    Davis jr., Frankie Waller, .and David Mceathron, · klnew or

should have known befor_kl authorizing .!.he ::Jkllease of this

fruadulant, incriminating, DNA test r~bults, conducted by Orlando

ochoa, were fruadulent,              misleading, and not in compliance with

CODIS FBI's standard Operating procedures. By allowing the

exchange of these records, they all became acomplices, of said

crimes against the state of Texas                     pu~suant   to Texas Penal Code

§ 43 .06.    (a)    (b)    (c)    (d).

      District Attorney Rene Guerra and trial Judge                          ~ario           Ramire~

Jr, committed the offense of Abuse of Official Capacity, pursuant

to the Texas P e n a l       code . § 3 9 . 0 2 . and § 3 9 , 0 3 , ( a ) ( l )   ·t 2 ) ,    Bo t: h

District Attorney Rene ijuerra and Mario Ramirez Jr,                              trial judg~

should have ~nown as a matter of la~ when hearing Orlando Ochoa's




                                                6
                                               .!
fruadulan~   and delibrate misleading DNA test result's           testimon~


that his DN~ test result's wer~l inadmissable pursuant to the

Texas Legislature's enactted laws. Both of them,            failed to act,

and instead allowed the appellant Gustavo L, Mireles to be

convicted soley on this DNA test results provided by Orlando

Ochoa, the State's "Hired      Gun'~   Appelant was convicted to Life

in prison, based on fruadulent,        faulty, unreliable, unacceptable

by the forensic science community then when the tests were

conducted in Dec 12, 2001 or now,        "Junk Science".      (See attached

exhibi t~:G,;.-~ Newly acquired evidence),.


(4) LACK OF JURISDICTION TO ENTER RULING;

       Judge Bobby    Flores of the 139th District court of Hidalgo

County, Texas     , when he first recived this motion,         through

"Tootsie", secretary of judge Mario Ramires          J~,   at the 332nd

criminal district court, on or about August 3,2014, review and

entertained said motion, and decided to submitt said motion Lo

administrative judicial district judge Rolando Olvera. Pursuant

to the Texas Code of Criminal Procedure Art           52.01 (a), judge

Flores in order to submitt the motion LO judge Olvera, had to

first belive that the motion consisted of "probabl.e= Cause" that

a crime against the state of Texas had been committed.

       The decision of judge Bobby Flores to request and submitt

the motion Lo Rolando Olvera,       implicate~   substancial facts had

been   establ~   hed for requesting judge Olvera to asign a judge to

commence the Court of Inquiry.         Administrative judicial judge

Rolando Olvera, returned the motion back to judge Bobby Flores,

on or about August 11,     2014~   Pursuani to the    TCC~     Art.   52.01.

the fact that this instant motion was entertained by the

administrative judicial district judg~ iMplicated that by him

                                        7
rec i vi ng the mot ion and submitting i.il back to judge           ''Bobby"

Flores, was for the judge Bobby Flores            ~o   comence the Court

of Inquiry, and not    ~o    order that the COurt of Inquiry not be

conducted; as he did in his court order ruling issued in Aqgust

14, 2014. Furthermore,       judge Flores lacked         jurisdiction to enter

a ruling pursuant to Texas Code         Cri~inal       procedure Article

52.01 (b)   (2), because he was the requesting             judge.

      It was District Attorney Rene Guerra himself that opened the

"Gateway" to this Court of Inquiry.            In March 15, 2004, Rene

Guerra   was notified that an audit conducted by the Department of

Public Safety     cited the McAllen, Texas Crim~kField Laboratory

with numerous DNA analytical policies and procedural problems.

The audit caused the Laboratory's closure. The laboratory had

been using outdated     Standard Operating Procedures,              then the

ones currently adopted by the Texas Legislature. The laboratory's

director c la icr,ed that they were given permission, because they·

were "Grand..fla. the red". ReneGuerra said that the De par tmen t         of   ·. ''·

Public Safety had to itemize the cases that had been effected

by the laboratory's closure.         Especially the cases where DNA had

playetl a .major role in the state obtaining a conviction. More

then 300 cases had to be re-evaluated.            (See attached exhibit

B-4). Because the DNA evidence was the only evidence that the

state had relied upon       lb   obtain l~e conviction in cause No.

CR-3196-01-F; Applicant had and has a constitutional right to

be notified if his case was within the 300 cases that were

re-evaluated. Furthermore, .what analytical DNA forensic analysis

procedures were utilized in ihe             re-evaluation process.      Applicanil

has motioned the district attorney's office for disclosure of

said issue and that motion has also been denied.               (See attached

exhibit A.-5) .


                                        8
     Bo·th motion to conduct a       "Court of Inquiry" and 'motion for

Disclosure", have been appealed to the 13TH court of Appeals.

(see attached exhibit B-5).        In the motion to aonduct a court of

Inquiry, the Court of Appeals has entered an Opinion and judge-

ment saying that,"AAparty may appeal only that which the Texas

Legislature has authorize~!". Further saying that,            "TCCP. Art.

Ch. 52 does not provide for an appeal to a district             judges

determination in a motion to conduct a Court of Inquiry. Both

deci~ions   from the Court of Appeals are erronious because:
A. the court has decided an important question of State and '
   federal law th~t has not been, but should be settled by the
    Court of Criminal Appeals.
B. The court has decide:rl 1 an important question of State and    i
    Federal Law in a way that conflicts with the applicable
  d.eqisi-'61)9 of the Texas Legislature's laws that govern the land.
C. the court has declared a statute, rule, and ordiance to in
   the "Intrest of Justice" revie.U, be unconstitutional, and
   appears to have overlooked the statutes under the "color of
   law".
D. The justices of the Court of .Appeals have disagreed in a
   material question of law necessary to the court's d~cision .
                            .:~U '
F. The court of appeals has ~part~    from the accepted and usual
   coarse of judic~~l proceedings and has sanctione~ such a
   departure by a lower.court, which calls an exert~se of the
   Court of Criminal Appeals' power of supervision.

     Applicant asserts that the Texas Leg isla ture,           (like argued )
                     ''
priorly, authorized in April 5,        2001,    that all Texas DPS Crime

Field laboratories utilize quality assurance DNA testing standard

that either ,,nneet or exceed the FBI's Combined DNA Index .Sjstem

issued by the FBI.        The court of Appeals has dismissed the motion

to conduct a Court· of Inquiry      sayi~   that the applicant could

only appeal   "that which Texas Legislature has authorized''. Well,

the motion,   contested that the state         di~   not apply to this

instant case, CR-3196-01-F State of Texas vs. Gustavo L .. Mireles

the DNA analitical standards authorized! by the Texas Legislatuie 1



                                        9
therefor, making tlhe issue appealable. Furthermore, nowhere in

the Texas code of Criminal Procedur~ Chapter 52, d6es it state

that a district judge's determination on a motion to conduct a

Court of Inquiry,       is not   appea!~/:j/i!!J-   (See TCCP. 2012 Ed.).

       ~he   Court of Appeals ruled that all other motions pending

were dismissed as moot. This without even looking at the motion

for Discloi~re, which consisted bf a diffrent issue which was

also of constitutional magnatude.

        Not only does the Court of Appeals decision viol a tes and ill

contridictor~ to the State of Texas en~cted legislative laws, but

it also violates the United States constitutional Amendments 5th 1 6th

and 14fh     due process clause. This violations rise to a               funda~


mental defect which inherently r~~ults in a complet~ miscarriage

of justice and is inconsistent             with the r6!dimentary illemands of

fair procedure.(See, Cockerham            v.   Cain,   283 F. 3d 657/663 (5th

Cir.    2002).

        The dismissal iQ both the district court and the court

of     appeals opinions and judgements, are actions done under

col or of law, which are done with the appa r~lnt authority of the

law,    but actually in contrevention of the law. A Federal Cause of

action may be maintaned against a state officer who under color

of law deprives a person of his civil rights. 42                u.s.c.   §1983.

       The matters and issues presented to both courts are so

"Plain" that the errors are "cl~lar" and "obvious" and a·ffect the

applicant's substantial rights; this errors seriously affect

fairness,     integrity and public reputation of the judicial

proceedings.     (See   u.s.   v.Kirk, 528 F. 3d 1102, 1110 (8th Cir.             0
                        '·
2008),    (See also,    FED. R. CRIM. P. 52 (b).)



                                        10
        In both cases Court of Inquiry motion, and motion for
Disclosure, the records clearly show that the Respondents/or

Defendants never filed any type of response or refuted the

assertions and alligations contained therein. Pro-se alligations

are accepted as true, unless they are clearly frivolous.(see,

United States v. Baynes, 622 F. 2d 66 (3rd Cir. 1980). Further-

more, when the State fails to despute the facts contained in a

Petitioner's pro-se alligations, it essentially admits those

alligations. tsee, Bland v. Dept. of Corrections, 20 F.3d 1469

(9th Cir. 1994), See also, In··re Sixto,48 Cal. 3d 1247, 259 Cal.

Rptr 491,492, 774 P. 2d 164, 165 (1989), See also, Earp v.

Stokes, 423 F. 3d 1024 (9th Cir. 2005). The Applicant/Petitioner

has shown to this Honorable Court a 'Colorable Claim• where he

has alleged specific facts that are true, which entitle him to

relief, unless the alligations are clearly frivolous. See,

Morre v. United states, 571      F~    2d 179, 184 (3d Cir. 1978).

        The Applicant/Petitioner has presented to this Honorable

Court compelling evidence that substanciates that Crimes against

the State of Texas have been clearly comitted. The Supreme

Court has held in ''Brady" that the supression by the prosecution

of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution". 373 U.S. at 87. there after the Court held that

such    disclosur~   is mandatory regardless of whether a defendant

requests it, United States v.         Ag~rs,   427   u.s.   97, 107 (1976),

and that impeachmnet     eviden~e     must also be disclosed, see Brady

473    u.s.   at 676; Giglio, 405     u.s.   at 154.

                                       ll
       Applicant has obtained "newly Discovered Evidence" in the

form of two highly qualified forensic analysts who are expert in

the forensic field,               Hary j. Bonell M.D. and John Plunkett M.D.

have both provided affidavit and a letter substanciating that the

DNA analysis conducted by state analyst Orlando Ochoa in December

12,   2001 were def~btive and misleadlbg and below the acceptable

forensic .community standards,                            then and now.             (See Exhibit-B-6).

                                                             v.
                                                    CONCLUSION

(l) Applicant has no legal remedy available to him other then
    this application f.l:lr writ of manda,mus.
(2) This action sought, under the facts of this case, in essence,
    a ministrial act which respondent had legal duty to preform.
(3) Appllkant has properly requested repondent to preform, which
    repondent has refused.
      WHEREFOR,         PREMISSIS CONSIDERED, Applicant prays that this

application be granted and that the reMponden~                                          be ordered   ib
continue      with the relief requested.
                                                                            Respectfuly Submitted,

                                                                  Is I      lJw/NIJ J_ &Rh
                                                                    Aplicant Pro-se
                                                                    Gustavo L. Mireles
                                                                    TDCJ-ID #1128895
                                                                    3001 s. Emily 1 IDr.
                                                                    McConnell Unlt
                                                                    Beeville, Texas 78102


                       INMATE DECLARATION
I, Gustavo L. Mireles, presently incarcerated at the Texas
Department of Cri,, inal Justice Division, McConnell Unit,                                       located
at 3001 S. Emily. Dr                , Beeville, Texas 78102, have carefuly read
the foregoing insturmelad'land :find- same to be tr.ule and correct,                                      in
all things therein,               to the best of ..myl ,knowledge.
S i g ned t his   .-l"f. ii a y   o f . ~-~   ;-c l;i; ':: ::- ., 2 0 l 4
                                                                        Respectfuly Submitted,

                                                                /s 1-    /atLJko? r/- Ltfvidt
                                                                    Applicant Pro-se
                                                                    Gustavo L. Mireles
                      EHIBIT A CONSISTS OF:


1. Motion to conduct a court of Inquiry fliled by the
   Hidalgo county Clerk's office; June 10, 2014

2. Court Order issued by 139th District court, presiding
   judge Bobby ~ores.
3. Amanda and M3cario Mireles's Texas General Affidavits,
   concerning the procedures taken in the instant motion as
   having personally been told to them by Alexandra Gomez,
   "Tootsie", and "Shila, secratary of the 139th district court
4  Leonor Matano's Texas General Affidavit, concerning the
   procedures taken in the instant motion, as told to her on
   and through telephone records, by Alexandra Gomez, 'Tootsie"
   and 'Shila, the secratary for the 139th district court.

5. Motion for Disclosure   filed May 30,   2014.
                        AFFIDAVIT OF AMANDA MIRELES

STATE OF TEXAS                            §
                                          §
COUNTY OF HIDALGO                         §


       Before me, the undersigned authority, on this day personally appeared affiant
Amanda Mireles, who proved to me to be the person whose name is subscribed to this
Affidavit and who acknowledged to me that she executed the same, and after she was
duly sworn, upon her oath, she deposed and said:

        My name is Amanda Mireles. I am 76 years of age, of sound mind and capable of
making this affidavit. The facts stated in this affidavit are within my personal knowledge
and are true and correct.

        On June 10, 2014, I went to the Hidalgo County District Clerk's office and I spoke
to Sandra Gomez. I took her some documents that were to be delivered to Judge Rose
Guerra Reyna. Sandra took those documents to her supervisor, Laura Hinojosa, and then
the documents were sent to Judge Mario Ramirez. I specifically told Sandra that the
papers were not for Judge Ramirez but rather for Judge Guerra Reyna because my son,
Gustavo Mireles wanted for me to deliver them to Judge Guerra Reyna. Sandra took the
papers to Judge Ramirez' office. A few days passed and they sent the papers to Judge
Bobby Flores. Judge Flores' secretary reviewed the papers and then were sent to
Cameron County and Judge Rolando Olvera. A few days later, the secretary told me that
Judge Olvera returned the papers to Judge Bobby Flores, who was to make a decision on
the documents.




      SWORN TO and SUBSCRIBED before me by Amanda Mireles on this 29th day
of August 2014.


               NOTARY PUBLIC              Notary Public in and for the State of Texas
                Rick Puente               My Commission Expires on
                 State of Texas
                                          November 12, 2014.



                                                   i
1
    Rick Puente-Notary Public: PO Box 1514, San Juan, TX 78589 (956) 782-8425
I




    August 13, 2014


    Innocence Project of Texas
    1511 Texas Avenue
    · Lubbock, Texas 79401


     RE: Gustavo L. Mireles Request for Criminal Inquiry filed Hidalgo CO. Courthouse on 7/10/14


     Dear Nick or Attorney Jeff Blackburn,


     Enclosed is a copy of the Inquiry filed by Gustavo. As you can see it was addressed to Judge Rosa Guerra-Reyna.
     When I called the courthouse for status, they informed they did not know what to do with it. The last inquiry they
     received was 30 years old.
     The Trial Judge Ramirez had it, and then transferred to Judge Guerra-Reyna. She did not know what to do so she
     forward it to her superior
     Judge Roberto "Bobby" Flores. Judge Flores sent it to District 5 Judge, Rolando Olvera whom sent it back to Judge
     Flores to process and address.


     The inquiry has several elements, one the elements (DNA report and results) submitted to Jury was a "material
     misrepresentation", and such representation would induce a Juror or a reasonable person to alter the outcome of
     the verdict.   Second this was "false representation" of the DNA. Third, misrepresentations were made knowing
     and recklessly with the intent. Fourth the trial Judge keeper of Justice and the DA knew the representation was
     false, made recklessly, as positive assertions, and without knowledge of the truth to Jury and were made with the
     intent to mislead the Jury and the outcome of the verdict, a criminal offence was committed. This is not common
     in this county.


     Keep in mind, 5 sheriffs from the Rio Grande Valley including the Hidalgo Co. sheriff were convicted of criminal
     charges and some are serving prison sentences. As recent as a few months ago the Hidalgo Sherriff, his son
     (Leader of the Panama unit) and several of his top officials were indicated and are serving prison terms including a
     DA whom was helping them and there were many more.


     We relied on the truth and they kept it from the Jury.


     If the Inquiry results in a hearing, will you help us by representing Gustavo?


     Please let mei)no
                     so we can prepare.
     Thank you,
     Leonor Mata


     Cc: Gustavo L. Mireles
     Enclosures
                    SYLVIA REYES
                      CouRT CooRDINATOR
              )39TH   JUDICIAL DISTRICT OF TEXAS

I 00 N. Closner, 2nd Floor                Tel: (956) 318-2260
Edinburg, TX 78539                       Fax: (956) 383-7608             .   ---- --- ... -   '   _____ __  ,..   ""'--~-    .. --   -- ------ . -
                    sylvia 139th@yahoo.com
                                                                . 3\
                                                                ...-~-···· ·- ...0.     - '")
                                                                                 U ... ··-·····~         2LD.
                                                                                                           - ·-Q .......... ..............
                                                                                                   ...   ------.--··--··· ___ ....,. _______ , .. ····•····   ..




                                                                ····----2~ . . . £_\Q.O( . . . . . . . . . .




            J.R. "Bobby" Flores
              Judge, I 39th State District Court

                                                                                     .~pmyDiStrje~.
                      Hidalgo County Courthouse
          I 00 North Closncr, Second Floor Edinburg, Texas
                         Tel: (956) 318-2260                         c. R- ;;: !;; () - {? I . ~  ~2.                                             hi·
                                                                      PO Box 87                                 Tel. (956) 3 1
                                                                      Edinburg, Texas 78540                     Fax (956) 3:
                                                                                  Email: districtclerk@co.hidalgo.tx.us
                                  Case No. CR-3196-0 1-F



STATE OF TEXAS                                §       IN THE 139TH DISTRICT COURT
                                              §
                                              §
                                              §
vs.                                           §       OF
                                              §
                                              §
                                              §
GUSTAVO LOPEZ MIRELES                         §       HIDALGO COUNTY, TEXAS




                                       ORDER.              ~   ..
                                                           • ,..



       On this the 14th day of August, 2014, the Court having examined the pleadings,

record, and the submitted transcripts, FINDS that there is lack of substantial facts to

establish probable cause for conducting a Court of Inquiry.

        IT IS THEREFORE ORDERED that a Court oflnquiry not be conducted

       SIGNED AND ENTERED on this the 14th day of August, 2014




                                              ~ruDGE
CHIEF JUSTICE                                                               NUECES COUNTY COURTHOUSE
  ROGELIO VALDEZ                                                            901 LEOPARD, 10TH FLOOR
                                                                            CORPUS CHRISTl, TEXAS 78401
JUSTICES                                                                    361-888-0416 (TEL)
  NELDA V. RODRIGUEZ                                                        361-888-0794 (FAX)
  DORI CONTRERAS GARZA
  GINA M. BENAVIDES                                                         HIDALGO COUNTY
                                                                            ADMINISTRATION BLDG.
                                    ~ourt      of ~peals
  GREGORY T. PERKES
  NORA L. LONGORIA                                                          100 E. CANO, 5TH FLOOR
                                                                            EDINBURG, TEXAS 78539
CLERK                                                                       956-318-2405 (TEL)
  DORIAN E. RAMIREZ              '(Ebfrttentb Jefstrftt of tn:exas          956-318-2403 (FAX)




                                          October 09, 2014

      Hon. Oscar Rene Flores                        Hon. Rene A. Guerra
      Attorney at Law                               Criminal District Attorney
      1308 South 1Oth Ave.                          Hidalgo County Courthouse
      Edinburg, TX 78539                            100 N. Closner, Room 303
      *DELIVERED VIA E-MAIL*                        Edinburg, TX 78539
                                                    *DELIVERED VIA E-MAIL*

      Re:       Cause No. 13-14-00497-CR
      Tr.Ct.No. CR-3196-01-F
      Style.:   Gustavo Lopez Mireles v. The State of Texas



              Encl_osed please find the opinion and judgment issued by the Court on this date.

                                                Very truly yours,
                                                ~C(,M- 5. ~~
                                                Dorian E. Ramirez, Clerk

      DER:dsr
      En c.
      cc:   139th District Court/Hidalgo County (DELIVERED VIA E-MAIL)
            Hon. Laura Hinojosa, District Clerk (DELIVERED VIA E-MAIL)
            Hon. J. Rolando Olvera Jr., Presiding Judge, 5th Administrative Judicial Region
            (DELIVERED VIA E-MAIL)
Case No. 13-14-00497-CR
Page 2



                                     Very truly yours,

                                      ?Su\~ 5. ~~
                                     Dorian E. Ramirez, Clerk

DER:sc
cc:  Hon. Rene A. Guerra (DELIVERED VIA E-MAIL)
     Hon. Laura Hinojosa, District Clerk (DELIVERED VIA E-MAIL)
     Mr. Jessie Salazar, Court Reporter
                            NUMBER 13-14-00497-CR

                            COURT OF APPEALS
                                        '               '

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTl • EDINBURG


GUSTAVO LOPEZ MIRELES,                                                    Appellant,

                                            v.
THE STATE OF TEXAS,                                                        Appellee.


                   On Appeal from the 139th District Court
                       · of Hidalgo County, Texas.


                          MEMORANDUM OPINION

     · Before Chief Justice Valdez and Justices Garza and Longoria
                    Memorandum Opinion Per Curiam

        Appellant, Gustavo Lopez Mireles, attempts to appeal an order issued on August

14, 2014, denying his request for a court of inquiry. We dismiss the appeal for lack of

jurisdiction.
.
-,
~
     ~   .
             -
             jo:




                         -A court of inquiry is a criminal proceeding authorized by and conducted according

                   to Chapter 52 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

                   arts. 52.01-.09. When a district judge, acting in his capacity as magistrate, has probable

                   cause to believe that an offense has b~en committed against the laws of this state, he or

                   she may request that the· presiding judge of the administrative judicial district appoint a

                   district judge to commence a court of inquiry.   TEX. CODE CRIM. PROC. art. 52.01 (a). The

                   appointed judge may summon and examine any witness in relation to the offense in

                   accordance with the procedural rules established in Chapter 52. /d. If it appears from a·

                   court of inquiry that an offense has been committed, the judge shall issue a warrant for

                   the arrest of the offender as if the complaint had been made and filed.   TEX. CODE CRIM.

                   PROC. art. 52.08.

                          A party may appeal only that which the Legislature has authorized. 0/owosuko v.

                   State, 826 S.W.2d 940, 941 (Tex. Crim. App. 199_2); McCarver v. State, 257 S.W.3d 512

                   (Tex. App._:_ Texarkana 2008, no pet.).   Chapter 52 does not provide for an appeal from

                   the judge's determination.    In re Court of Inquiry, 148 S.W.3d 554, 555 (Tex. App.-EI

                   Paso 2004, no pet.).   Accordingly, this appeal is DISMISSED for lack of jurisdiction. All

                   pending motions are DISMISSED as moot.



                                                                     PER CURIAM


                   Do not publish.
                   TEX. R. APP. P. 47.2(b).

                   Delivered and filed the
                   9th day of October, 2014.




                                                                2
.
                           GUSTAVO L. MIRELES
                            TDCJ-ID # 1128895
                           3001 S,. EMILY. DR.
                              McCONNELL UNIT
                          BEEVILLE, TEXAS 78102

    June 16, 2014                                       FILED
                                                  AT_ _ _O'CLOC~<_M
    Honorable District Clerk
    of Hidalgo county Texas                              JUN 1 0 2014
    Attn; Laura Hinojosa
    1ST FLOOR COURTHOUSE                                        S       ERK
    100 N. CLOSNER BLVD.                                            -go county
    P.O. DRAWER 87
    EDINBURG, TEXAS 78540-0087                    By--+-~-.,.'--t'-Depu~#44

    Dear Clerk:
          If you could would you please be so kind an ~le this
    'Motion To conduct A Court of Inquiry" at the 206TH Criminal
    District Court, judge Rose Guerra Reyna Presiding.
         This motion is sent to you for filing under the Texas
    Code of Criminal Procedure Article 2.21. (a) (1) (2) (3), please
    comply and if so kindly notify me when this legal documentation
    is filed. The Motion is filed pursuant to the Texas Code of
    Criminal Procedure Article 52.01-
         Thank you for your time and attention to this very important
    and urgent matter.
    Sincerly,

    /sL/4~n J.(/l~
    GUSTAVO L. MIRELES

    ENCLOSURES:
    CC: Amanda Mireles, 1231 S. 3rd. St. , Alamo, Texas 78516 (956)
        702-1044; Leonor Matano 580 Irene dr- canyon-lake, Texas
    78102 (512) 787-1180; Florestella Limon, 103 Cottonwood, Donna,
    Texas 78537.
                          COURT OF INQUIRY
                     Cause No=----------------~-
                                                         AT
                                                               FI£ED
                                                                 0
Pro-Se                             §     IN THE 206TH   CRIMINAL   -   'CLOCK__
COMPLAINT ANT                                                  JUN 10 2014
     GUSTAVO L. MIRELES                  DISTRICT COURT, JUDGE - - - - -
                                   §                          H/NQ
v                                        ROSE GUERRA
HIDALGO COUNTY DISTRICT
ATTORNEY"S OFFICE                  §      HIDALGO COU
RENE GUERRA AND
McALLEN, TEXAS DEPARTMENT OF       §
PUBLIC SAFETY DNA CRIME FIELD
LABORATORY AND SEROLOGIST
ORLANDO OCHO.~,                    §
P. 0. BOX 819
McAllen, Texas 78505-0819          §


        MOTION SEEKING JUDGE TO CONDUCT A COURT OF INQUIRY
 PURSUANT TO THE TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 52 01.

TO THE HONORABLE JUDGE OF SAID COURT:

     COMES NOW, Gustavo Mireles,       the Complaintant in the above

numbered and styled cause, and respectfully asks this Honorable

Court to Conduct this Court of Inquiry for the following reasons;

                          I   JURISDICTION

     This Honorable judge has jurisdiction to conduct such an

inquiry, pursuant to the Texas Code of Criminal Procedure

Article 52.01.   (a) because; when a judge of any district court

of this State acting in his capacity as a magistrate, has

probable cause to belive that an offense has been committed

against the laws of this stater he may request that the presiding

judge of the administrative judicial district appoint a district

judge to commence a Court of Inquiry;

        II. PROBABLE CAUSE TO INITIATE A COURT OF INQUIRY
WHEN AN OFFENSE HAS BEEN COMMITTED AGAINST THE LAWS OF THIS STATE,

                          Relevant Facts

     In December 12, 2001, Serologist Orlando ochoa who was a

forensic analyst for the Texas department of Public Safety DNA

Crime Field   laboratory conducted a DNA analysis concerning

                                   1
the Capitol Murder of victim Mary Jane Rebollar, He compared

ON~   biological matter that was alleged to be left behind at the

crime scene, to ComplaintantGustavo L       Mireles's DNA biological

matter genetic fingerprint. The DNA testing policies and proc-

edures utilized by analyst Orlando Ochoa were Short Tandem

Repeat (STR), and Polymearse Chain Reaction, (PCR) DNA loci

search and compare analyzation. When conducting the analysis,

analyst Ochoa searched and compared only 9 DNA loci, (locations).

He matched 2 to 3 loci to the Complaintant's DNA samplev He then

concluded that because of this 2 to 3 loci match, he had obtained

a positive consistant     match~   However, serologist Ochoa's protocol

and methodology that he used to conduct the DNA analysis and

comparission, was not an acceptable forensic science standarJ.

The required and acceptable forensic standard was to search Zor

13    loc~   (lbcations) of DNA from both the crime scene DNA and the

suspect's (Gustavo Mireles) Complaintant's DNA sample. This DNA

analytical methodology had been established by the Federal Buerua

of Investigations Department nation wide begining in October of

1998; 3 years prior to the bNA analysis being conducted in this

case by serologist Orlando Ochoa.       (See attached Exhibit -A).

Serologist Ochoa knew about the 13 loci match requirment, because

he testified at trial that some times during DNA testing analysts

searched for more then 9 loci, that they searched for 13 to make

it more specific to an individual. (See exhibit-S RR. Vol. 9. pg

32 lines 14 to 17). In ihe instant case .he only searched for 9

loci RR. Vol. 9 pg 24 lines 1 to 20, and was only able to match

2 to 3 loci .(see exhibit-B). This 13 loci match is thP protocol

that was established by the FBI for all accreditied DNA laborat-

ories to follow.      (See exhibit-A pg. 5 tiltled "Back to High
                                    2
School Biology" and pg. 98 titled "Other genetic locations'').

Therefor, since 1998 the FBI established that if the DNA analyst

did not manage to match all 13 loci, from the crime scene to the

suspect's DNA sample 13 loci, the analyst had to concluded that

the crime scene left behind DNA being compared came from some

other person instead of the suspect.     (Se~other   genetic locations

on pg.t~~J. Orlando Ochoa testified under oath to a jury and that

he had made a positive   ~atch   from 5 items of DNA biological

matter, that were alleged to be left behind at the crime scene.

(See exhibit -B RR. Vol. 9 pg 19 lines 4 to 17 and pg. 23 iines

1 to 23). By testifing that Gustavo Mireles was      thePsource~of   the

crime scene DNA and that the DNA was"consistant" the analyst and

the DNA laboratory are stating that this DNA profiles originated

from this particular individual,(Gustavo Mireles). He testified

under oath to the jury saying that this facts were true and

corrct, even when he knew or should have known as an expert

wtiness,    that in order to concluded that he had made a positive

consistant, source atribution match, he had to search for and

match 13 loci instead of only searching for 9, and only matching

2 to 3 loci. Orlando Ochoa delibertly committed "Aggravated

Perjury" in doing so,    which is an offense against the state of

Texas~   pursuant to the Texas Penal Code § 37.03 which states

that:    (a) person commits an offense if he commits perjury as

defined in Section     37.02 , and the false statement is made:

(1) is made during or in connection with an official proceeding;

(2) is material.     Orlando Ocha, made a false statement under oath

and     sweared that it was the truth. It is reasonably convincing

that because Ochoa, -~~ew about the 13 loci search and match,

                                   3
prior to testifing as state expert witness, but decided to tell

the jury that even though he had matched only 2 to 3 loci he had

made a positive match, from the crime scene DNA to that of Gustavo

Mireles's DNA sample, he escalated the perjury offense to

aggravated perjury; because he knew that the false                DNA analysis

information contained 'in his expert testiminy was made during and

in connection to an official proceeding. Ochoa's DNA testimony

was the sole and primary evidence that linked that Complaintant

to the crime scene. It was also the only evidence utilized to

obtain this instant conviction. (See exhibit-C).

        Furthermore, Ochoa committed the offense "False Report to

Peace Office or Law Enforcement Enployee", pursuant to the

Texas Penal•,Code §37.08. when he submitted the DNA test r~sults

as trustworthy to Investigator Joel Castro, so that he could

then submitt them as evidence to the District Attorney Rene

Guerra, to use as addmisable evidence at trial.

        Orlando ochoa,further committed the offense of Tampering
                      .
With or Fabricatin9 Physical Evidence pursuant to the Texas

Penal Code § 37.09.       (a)   (1)   (2)
                                            1
                                                by altering his analysis

to read that he had made a conclusive matcht and presnting and

useing Lhe test results as true1 Mnowing of the DNA tests results

falsity and with the intent to affect the course and outcome of

the investigation and official proceedings, which resulted in a

conviction and sentencing of Gustavo MirEles to life in prison.

        Orlando Ochoa/ further commited the offense of Tampering.

With a Goverment Record pursuant to the Texas Penal code§ 37.10.
(a) (1) (2) (3) (4) (5) (6) 1 when he knowing made the false

entry     and alteration of a goverment record; he presented the

record State's #105 and #106 with knowledge of it's falsity

and with intent that it be taken as a genuine govermental record;

                                            4
impaired the verity of the goverment record; got paid by the

state       for the use of the record; presented the record with know-

ledge of it's falsity. The McAllen, Texas DPS Crime Field Lab, to

include it's director Thomas A. Davis Jr., Frankie Waller and

David MCeathron assistant Directors,            ~new   or should have known

before authorizing ±he           re~ease of this fraudulant test results;

that they were false and conducted under false pretense. By

allowing the test results to be released and submmitted as

evidence to the Hidalgo county prosecutor, Rene Guerra, the

McAllen Laboratory and it's dir~btors commited the ofense of

the Texas Penal code § 43.06. Acomplice Witness; Testimony and

Immunity       (a)   (b)   (c) (d)

        District Attorney Rene Guerra and the trial judge Mario

Ramirez Jr. of the 332ND criminal judicial court committed the

offense pursuant to the Texas Penal Code § 39.02. Abuse of

Official Capacity (a)          (1) (2)   and Texas Penal Code §39.03.

(a)   (1)    (2). Both Rene Guerra and Judge Mario Ramirez jr. should

know the laws of the state of Texas and the laws established by

the Federal Goverment. This is very important when both are

the "Gate Keepers' of the evidence being submitted to them as

being trustworthy, reliable, by the investigating peace officers.

Both should have known that the legislature had passed in Sept 1,

1995 1 the DNA Act, which included the Regulation of DNA Testing;

issued by the Executive Branch Department of Public Safety

Title Chapter 4 Section 411, and Sec. 411.0205, 411.0206, 411.144

and The Administrative Code Refrence DNA Database Testing See,

TAC § 28.1 et seq. which states that:
(b) A DNA Laboratory or criminal justice of law enforcement
                                11
agency shall follow the procedur~s:
(1) established under the director of this section;
(2) specified by the Federal Beurea of Investigations, to include
the use of compatable testing procedures, laboratory equipment,
supplies and comparable computer software.
                                            5
     Before allowing the DNA Test results to be admitted as

addmissable evidence under the Texas Rules of Evidence/ they're

ethical obligation was to ensure that the evidence; in this case

the DNA test results were not fraudulant1 and met the standard

opperating procedures, specified by the FBI, or comparable and

compatable to them. The DNA test results in this case are not
                                                         ,.
even close to a compatable or comparable status requirment; when

analyzing DNA test results.       Both Rene Guerra and Mario Ramirez

Jr. recomended to the Court of Criminal Appeals to deny a pri-

vious collateral attack on this same issue saying that the

FBI's standards and guidelines were meritless and not absolute.

The CCA    agr~ed.   All have abused they're discreation and official

capacity as administers of justice/ by allowing the Complaintant

Gustavo Mireles to remain incarcerate to life in prison, kbowing

that the DNA test results utilized to obtain this conviction are

unreliable/ fraudulant,      inaccurate/ misleading, and unacceptable

forensic science then when the results were conducted in 2001,

and now.    (See attached •xhibit- D)

                                  PRAYER

     Do to the reasons contained herein, the Complaintant prays

that this Honorable court enter a ruling granting this motion to

conduct a Court of Inquiry, in the "intrest of Justice".

Signed this 16th day of June 2014.

                                            Respectfully Submmitted,

                                           /sllJ. ,/!J@ll7 ..j ·   ;tf i   vi>
                                            Gustavo L. Mireles
                                            3001 S. Emily DR.
                                            McConnell unit
                                            Beeville, Texas 78102




                                  r
                                  '0
                       INMATES DECLARATION
I Gustavo Lopez Mireles, presently incarcerated at the Texas
Department of Criminal Justice Division located at 3001 S. Emily
Drive, McConnell unit, Beeville, Texas, due solemly swear under
penalty of purjury that the foregoing facts are true and correct
to the best of my knowledge.

Signed this   16   day of June 2014.


                                          INMATES SIGNATURE
                                 Case No. CR-3196-01-F



STATE OF TEXAS                                §       IN THE 139TH DISTRICT COURT
                                              §
                                              §
                                              §
vs.                                           §       OF
                                              §
                                              §
                                              §
GUSTAVO LOPEZ MIRELES                         §       HIDALGO COUNTY, TEXAS




                                       ORDER

       On this the 14th day of August, 2014, the Court having examined the pleadings,

record, and the submitted transcripts, FINDS that there is lack of substantial facts to

establish probable cause for conducting a Court of Inquiry.

        IT IS THEREFORE ORDERED that a Court oflnquiry not be conducted

       SIGNED AND ENTERED on this the 14th day of August, 2014




                                              ~ruDGE
                                                                                                                      I




      May 27, . 2014
      HIDALGO COUNTY DISTRICT
      CL~R~S OFFICE
      ATfN~ LAURA. HINOJOSA                                                                           .· .
 _·. ·-~-~~rrrF-~%9~:-:~~eQRTHousE·- ·-.                                                       -~   .· _....
                                                                                                        ~ -~··-----




                                                                                                                              By ..
                                                                                                                                   ...
 . ... ."1,0.0 ",N..,,,:,,CI:,.O,S,NE R, . BL V:,D••..•.. ,
··· · . ·rJ?!Io'~~'~shx"~oR'lfwE:~R: ;:-s-7' '}l)·'a.':.                                                                    .· . ·!
      EDJNBURG,                   TEXAS 78540-0087                                                                                ·f       .
                                                                                                                                  I    ,
                                                                                                                              /
       Dear Honorable Clerk:· .·                                                          . ·.··· .           .                                  .               .              ...:1  fJ.·· 1e. ·st:.,_·.
                                                                                                                                                                                                       .ri·ct
                     Please, if yo.u could, :would you be so kind an u                                                                                                                   te .01 ··
       t,h,,i~s foregoing motion for disclos.ure in the 206th st:eyi'l.a
       Cou1:-t,· 'Hidal,go. cqur1ty courthouse, judge Rose Guerra                                                                                                                                    0
       pr~si:d:ii19.                                     .                                                   .                   .                                                    civ.ed. an· ~as
          .       . Please, notify me when this ·motion. has. been re:                                                                                                                   root :Lon j.Cle
       f.l.led '· as_ I haye ,no qtl}~r me.ans, to ver1fy that th J.. ~ure ~rt.
       filed, pursuant' to. the 'Texas. Code of Criminal Proc e · ·                                                                                                                              ·    0 rtant
       2.21. [Duty of cle;rks] Sec.tion (a), (1) (2) (3) (6)·erY imP·
                     Thank you for your; t_ime and at tent ion to this ~ ·
    . --~R.~s'ii..;EJ;:,,g. ~:nt:.~:~<;.l!ts#J?·e.r...,~>-···"";,,;)<"'~"'',."",;.;;·""""~'·•·~"'-'"'...."';;•;..; ..~...·._•..........,,__~~'""''"·-····· -~·*·'· ·"' ...·. . -
      Sincerly,

      ~~~>B.~
           I..
      GUS'fAVO
               J. fl•.               MlREL.ES                 ...
                                                                       . ... - . ·.
                                                                           -~




                                                                                                                                                                                  ..      j)R•
      ENCLOSURES:                                                                                                                                                 I RS~E                  -:t:); •
      -CC: :INNOCENCE PROJECTS OF TEXAS, LEON OR MAT.~NO 1 58 9                                                                                               . (si           S    toe
           CAN'YON,-LAKE, TEXAS 78133, C~11: (5_12) 787-1180;




                                                                                /
                                        Cause N.o:

     Ex-parte
                                                     §       '
                                                          IN THE 206TH STATE                                                       I




                                                                                   ~1MfS.~][) 1
     Gustavo L-. :Mire1.es                            §
                                                     _§   DISTRICT COURT

                                                          HID!\:.G_O,.,P~'"P.,~-J~ -&'t'Ri~~~--M
     v.                                              §
     Rene Guerra                                     §.
     Hidalgo County, Texas                           §    E:PI-N:BURG; TEXAS              MAY 3.0
                                                                            .:'2 . ,:.·: :-.~~~ ..
     District At~orney                                                                               :.-t~-


     Edinburg, Texas ·                               §
                                                     §

         :c{i ·:. MOT:j:ON FOR DISCLOSURE CONCERNING
 .. · ._·'PURSUANT TO THE DUE PROCESS CLAUSE OF


~~~f';~~~,~~~'"o~iti~*iWliG_:~:;::~;:,~,::,~~T,;·-·· ·
           COM_ES NO.W _Gustavo L ~ Mir~les, in the above mentioned and

     styled ca.use, and wi_ll respectfully sh9w this .Honorable Col}rt

     ~thei f~o~llowing:

                                         i.I:: ;:idRISDICTION
           Th-is ho.n 0 ~:able co.urt h_as the jurisqiction _to grCl.nt tnis

                                                                                                              •<'   -   -   ~-:.



                                                                                        Kyles v.

     Wh;i;tlyl_514U.       s.    419,433 (1995), United Sta1;.es V• Bagley~_ 473

     U.s:<;·-66~_;·~~::;.p81 0" .(1985.)!_United States y. Agurs, 427_, U.S. 97, 107

     (1976); Braqy v_., Mar_yland, 373           u.s.      83 (19'63) Ex part,e Mqw.bray,

     943 S. w.   2d 461,. 466 (tex .cr. App. 1996) the State has an

     "afirmati ve duty"·, ';:o disclose          favor~ble         evide·nc_e •.

           The State has a continuing duty to disclose favorable

     ev.idenc9. At tri:a1 this duty is enforced by the requirements of

     due process, but after a conviction the pros~cutor also ~$ bound

     by the ¢t_h {cs      ot    .hl.s office to info-r-m. the defendant or a_?pro-

     priate a.uthori ty of afte.r-acqub':ed or other information that

     casts doubt upon the corr~ctnes s of the convi.ction. (see' Imbler

     v •. Pacht_man, 424        u.s.   409, 427 (1976)           (FN25).



                                                     1




                                                            --------~• .__L__
                                  Cause No:•
                                               §
Ex-parte                                              IN THE   206T~    STATE
GustiVo L. Mireles                             §                                                  ' ..
                                                                                                  .~


                                               §     DISTRICT COURT IN THE
V•                                             §
                                                      HIDALGO COUNTY COURTHOUSE IN
Rene Guerra                                    §
Hidalgo County, ~exas                          § . EDINBURG, TEXAS
District .Attorney
Edinbur·g, Texas                               §
                                               .§

     MOTION FOR DISCLOSURE CONCER~ING EXCULPATORY MATERIAL
PURSUANT TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION.

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW _G..u~c~.5!Y,9.,.,L. Mire!~~!~. in _t_ll.e..__ ab~y._~-~~n-~~~o_l_led and
s:tyled cause, and will respectfully show this Honorable Court

the following:

                                      I. JURISDICTION
       This    honor~ble ~ourt         has the       jurisdi~tion      to grant. thiA

motion everi     ~ithoUt     a request for Brady eVidence, material

evidence which is faVorable to the accused.                      (See, Kyle·s v.

Whltly, 514 u. s. 419, 433 (1995), United States v. Bagley, 473

u.s.   667, 680 (1985); United states v~ AIIJurs, 427,                     u.s.    9Ti 167

(1976); Brady v. Maryland, .373               u.s.     83 (1963) Ex parte r<lowbralt•

943 s.w.      2d 461, 466 (.tex cr. App. 1996) the state has an

"afirmative duty", to disclose favorable eVidehte.


·~~id::·~~-~::t-:~!Jf''·~~rt~:::f~,~~~~~~j~~~~lJ~~f~f~is                                     of

due process, but after            a   convic~i-on      the prosecutor aLso is boodd

by the ethic& of his office to infor• the                      ~e6endant     or   a~pro­

priate authority of after-acquired or other information that

casts doubt upon the            to~rectness         of the conviction. (see, Imbler

v~   Pachtman, 424       u.s.    409, 427 tl976) (FN21).



                                               1
'·



                  I I.. DISCLOSURE EXCULPATOFU MATERIAL BEIN<;· SOUGHT
                                            RELEVANT F-ACTS

            On June 27, 2001; at 8:3.5 o'clock PM Magistrate judge

     Rose Guerra ieyna ; issued              a   search warrant in case #OL-13077,

      for the e~1straction of blood samples, saliva, body hair, and

     pubic hair, belonging to Gtistavo Mireles. Tt was the belief of th

      the   Affiant liidalgo County Sherriff's Department Investigatorr

     Noe Canales, that these DNA samples taken from                                    ~ustavo   Mireles
             ..               ·.   ·-
      and submitted to the Mcallen texas arSmeirime Field DNA laboratory

      for comparison, would show a match with the samples recovered

      from the victim. this would then constitute ev.idence tending to

     show that Gustavo Mireles had c:::ommitted the Capitol Murder of

     Victim mary .Jane Rebollar. {See attached exhibit A).

            The order was executed on June 28, 2001, wi th.out. the consent

     of Gustavo tdirele·s ., who was did not trust the Hidalgo county

      investigation department, due to curruptl.on atributes; which had

      beeti well established through out the histoty -of the                                 ~idalgo

     County, Sherriff's department.; as it continues to be establi.s.hed

      in regards to the Panama Unit, and former Sherr Lff Lupe 'I' rev ino 's

     ·plea of g.uil ty to currupti-2!1.-<,charges.
                                     ·.-·      ·.- ....            ,..   ·'
                                        -                 .· :":· (;·~ ~-;,> ..:-: .



            Defendant Gustavo mireles was tried -and convicted to life in

     prison, based soley and pr i mar·ily on the DNA evidence testimony

     and tes:t r.esults conducted by the McAllen . texas DNA Laboratory.

      However, just several months after GUstavo Mirles 's conviction,_

      the DNA laboratory of         McAll~n          texas was secretlt closed                    ~itnout

      notifying ~he- Hidalgo county District Attorney's office.
      (See attached exhibit B).

                                                 2
                          The seceet ciosure was first made public in'March                                 15, 2004.
        IJbetavo Mireles had already been convicted and 'sentenced: to life

        in prison, in A.ugust 8, '2002. the l.aboratory was secretly closed

        through June an·d septemberrof. 2003. District Attorney Rene Gueraa

        hirtrself told the News media that•If the DNA evidence piayed a
        major role in a                   ~e£endant~s         conviction on cases that had already

        been tried and aeijucated, that those cas_es had to be itemized and
        re...,evaluated. This was to make sure that all the DNA testing

        policies and procedi.ire:a~<had b_een properly- followed when con-

        ducting the DNA •nalysis on                           cases~

                           DPS spokeperson Tom           Yinger~          told the news media. that 40

        cases had already been reviewed that had shown no faulty testing.

        He further stated that the DPS·still had 187 more cases that

        needed to be scrutinized. (refit to attached exhibit BO.
        Spokewoman for the DPS, acknowledged to the news-, media that

        it was approximately 300 cases that needed to be scrutinized
        inste.ad of just 187.                  tr~le..   1"\(}.."'je.)'
                                                                                        '               '



                           Ale~      Madki9al the director of the McAllen, fexas DNA DPS

        crime field Laboaatory, told the media and confirmed that the

        laboratory had .been using outdated                                     blde~   DNA insttirments and
        pt.citoc~i~1-~ i -~sh i c h_ . were
·- •·•· -                                        out-     ~-;~·":~~~iJ.~~~~~~(~1:~~£~;;}~?;~'~£~oJ§~#~~~-fgg~~~~~;~¥~'~~~-' :~~:;/
        procedureE:J". Dlhe director • a excuse was that- the labo.ratory was

        give'n permission to- use these outdated old protocols and instur-

        ments, because the labor.atory was                                 11
                                                                                Gr.andfathe-red ;, . Analysts that

        were not involved in the .DPS audit, confirmed to the news media

      ·that the failure of. the Mcallen tx, DNA analyst to know the

        ·s~ns.itivity
           .. ... ·:·
            ·."'~·
                      of the insturment used to determine DNA profiies,
                     .-


        indj?da.ted that the·analysts were only guessing about the DNA
                          ·:·.; ..
        test r~'sul ts.
                                                                      3
                                                                  ARGUMENT

                   Gustavo Mirela, asks this Honorable coUrt to                                             ~ssue       en

          administrative order I                     to es'tabl ish if GUstavo Mireles DNA. case

          lgency _-#0113077, Laboratory Case #L3M-48628, offense Date 6j23/0l

          was re-evaluated. Also what were. the DNA testing policies and
          procedures and guidelines that were use·d in the evaluation

          process and the analytical methodology utilized therein• Did the

          McAllen,, eexas DNA Laboratory conduct the &Olfilalysis in _?om-

          IP1iance with and pursuant to the Executive Branch Dep-artment of

          Public Safety ti-tle 4. Chapter § 411, 411.144 Regulation of DNA

          Laboratories; Penalties added by the Acts of 1995 74th Legisla-

          ture 59.5, 1: effective September _1, 1995; the Crime !.aboratory

          Accreditation Proc·ess; See, V.T.C.A. Govt. code § 411.0205, a·nd

          Regulation of DNA Testing Govt Code § 411·0206 Administratvie. COc1
          Code refrence, DNA Database,                             See~      TlC     t   2&.1 et         seq~      whi2h

          .states that :               All     na~artment            of Public Safety DNA laboratories
          i:ri the United States. must and shall: ·
          (a) the director by rule shall establish procedures for i:>NA
               laboratory or cri.minal justice law enforcement agency in the
               collection, preservation, shipment~ analysis, and use of
               blood sample or ot!1er spicimen for forensic DNA analysis
             in ~a ma.nn~r that parmi ts~.:,tl::l.~"'"-~-~<;,h.~,P,9e _:.~~ ..!:h.~.:c)?J.~"'~~~2~!-J!:.!~~:!~9~);:,v.;;;;;t,,, :~:<·>; .. ·.
\~.·.,.
           . -.
            (~J~·~f~~~l:~.d:··~ ;-~~~rat or i e s an a: ,tJie(::u?S;~1:i~();f:~--~t'he"'~:~v.r~a)~'ff\~ ~);/:-i'l1';: a?- -· · - ·. '·' <: ·.. ·.· ··


          (b) A DNA laboratory :6r:/ci:1mina·l justice of law enforcement
          agency shall follow the ·ptocedures:
                  (1) established under the director of this section; and
                  {2) specified by the Feder.al 13ureau of Investigations,                                                   to·
                     include, the use of comparable testing procedures,
                     laboratory eq.uipmant, supplies and compatable
                     computer software.


                                                                         4
        Compatabl'e DNA testing procedu'res to those of the Federal
Bureau of Investigation
Bureau of, Investigationsspolicies and procedures would have
required the McAllen, texas laboratory to utilize the standards
used by the FBI to compare an·d match DNA samples from the crime
scene to 41asttauocll!lsec1t!ts•s        DNA sample and genetic profile.
This analytical. DNA Testing methodology was established nationwid
wide in 1998, which required identicle findings at a minimum of
13 alcbcfrent loci on the DNA from both the crime,scene and the
 suspect's DNA samples .. The 13 CODIS (Combined DNA Index System)
core loci were and are: CSFlPO, FGA, TH01, TI?OX, VWA, D3Sll58,
D5S818, 078820, D8Sll79, Dl3S3l7, D16S5·39, Dl8S5i, and D21Sll •.
This was to ensure that the analyst had conducted his analysis
.in compliance and had. searched for all 13 loci and matched them,·
in order for the tiNA test results to be considered a "match".
If the analyst was off' just 1 of these 13 loci, and even if he
or she managed to match 12 other loci, he would have to agree
that the source of the DNA sample belonged to some other indi-
viduaL and. not the suspect. (See. attached exhibit C).
        Honorable Judge presiding Rose              Gu~rra   teyna, has just
recently in. Febuary         J0020l.~'";.."'~entenced   .defendan"t Arturo Almaguer
·to   2 conse~utive .life· sentenc~:·~.:;~~;'"r~;~~'!:ilici'f~~,;·~oit'~~~:W\~,ha:.c,·~
W.ilda 8quires in 1988 ·"Cold Case''. It was this same FBI DNA
testing policies and procedures that Rene guerra and his
District Attorney's Office ut.ilized to link Almaguer to the
crime scene, and convict him of the murders .. This DNA testing
analytical methodology that was established by                     th~   FBI nationwide
back in       October 13, 1998. (See attached exhibitCC).


                                                        ''
                                              5
                                                                                  ·I•




              Hidalgo county District Attorney, or no one from his Office,

      has ever. notified §ust'avo Mireles concerning the re-evaluation of

      his DNA· case files.; co,ncerning the DNA re,..testing and the pp&ic:ie

       p~li~ie$       and    procedu~es        used in the re-evaluation procesa.

              Gustavo Mir.eies; has a Constitutional Right, ·to be ·notified

      about the issue of the re-evaluation of his DNA c·ase file, ~·tht

      was used to incriminate him. If this evidence is disclosed, there

      :is a reasonable probability that it may be fa_vorable in _fu_ture
      appellate pro6eedingsi                it   and ~he~ the ~lip~essed evide~ce

      undermines the confidence in the out come of the trial• .It is

      and was Rene Guerra's duty to learn as an :individual prosecutor,

    ·of any favorable evidence known ·to others acti-ng on the goverment

      behalf in this case, including the police. (See, Kyles, 514
      u.s.    at 437-438, Ex-parte Adams, 768                      s.w.    2d at 291-92). If error

      results iri the eharecter of the evidenc$, it 1 s not Rene Cuerra

      tfie prosec~tor, that d~t~rmirtes whether the supression of the

      evidence results in .·constitutional error~ tsee, · Agurs, 427

      u.s.    at 110.}.

                                                   CONCLUSION .

              F~r.   the reasons stated .. .in.:_,this moti_on, ,it .. ie· .the et}).icalc... .. ,,
····---~- -d~~{~i~-~~'---t~~:~~-.pr-~si;,d,ing magist~a·f~~;-~~f(;~l~i~~f~~,hif{;~~~:&©f~u'a~~;~t€:~-tt;2U~·~{';~F' <-··· ·•.   ·f




      a "Mini~terial           Act ··,··~ltfi'ch requires a trial court to consi'der and

      rule on a motion within a reasonable time. (See, Barnes v. state,

      832 S. W. 2d 424, 42.6 · (Tex App. Houston [1st dist.] 1992 orig.

      proceeding). When            a   motion is properly filed and pending before

      a t-rial cour·t, considering and ruling on that motion is a ·
                                                                                            .           .   .


      ministerall act, and mandamus may· iss·ue to compel! the .. trial. ·                      .. ··


      court to act. (see, -Kissan v. Williams, .545'                          s.w.      2d 266-67,

      ( tex Ctv.Atp~. Tyle.r C?rig. proceeding 1976).

                                                       6
                             Mandamus is an appropiate proceeding in a criminal case if

                  the relator shows that the act sought to be compelled is pi.ir.e:ly

                 mirtistekial and relator has na other w•pedy at law~ (see, Simon

                 v. Levario, 306 S. w. 3d 318-2CD ( tex cr. App. 2009) •
                                                        PRAYER

                             Rela.to:t, Gustavo mireles, prays that this Honorable Court

                 ent·er a ruling concerning the issues presented in this motion,

                 and that the cour_t act in .it's ministerial duty, when .. doing so.
                  Furthermore, Relator asks this court to ·grant this motion,. :and

                 compel! Rene guerra or his district attorney's Office, to
                 properly inv-estigate in a timely manner, artd check and see Lf

                  Gus.tavo Mir.eles' s DNA case is. analysis, we.re re-evaluated; and

                 to provide Gustavo mirelea with such re-evaluation,                                        to      include

                  the analytical met hodoiogy utili zed in conducting the re-
                 evaluation 8K&lforensic analysis .•

                  Si~ned       on this   27 day of    May 2014.
                                                                             Respectfully                      Submitted~


                                                                        I sr
                                                                            ,    f1v-ka
                                                                                    -
                                                                                        rY. !l<iu/h- __
                                                                             Gustavo L. Mitl.es
                                                                             3001 s. 8mily .Dr.
                                                                             TDCJ-ID ill28895
~-
                                                               -· ··"",_;·-;:~--,..Mcconne-1 i~"'-u-ni t:':"'·,: .:·-,::.~:-~:-:;·:- ··=·t:·;-e;_<;;;,:C::}   ·-· -
     .· .. ;. ~-·... .   .
                                                                            -8~:~~,±-11~-;          · i'a;ta.i:·.-;ialoi ~-

                                               >i.N.MATE DECLARQATION
                 I Gustavo Mireles, bei."rig presently incarcerated at the 'Insti-
                 tutional llivision,of t_he Texas Dept. of correctional -Justice
                 Mcconrtell unit,        bee~ille,   te~as,   swear under penalty of purjury
                 that the foregoing facts ~nd documen~s are true and correct to
                 the best of my knowledge •.


                                                                               Signature<,.




                                                                 7                        \
                                                                                           i
                                                                                                    NUECES COUNTY COURTHOUSE
CHIEfP JUSTICE
                                                                                                    901 LEOPARD, 10TH FLOOR
   ROGELIO VALDEZ
                                                                                                    CORPUS CHRISTl, TEXAS 78401
                                                                                                    361-888-0416 (TEL)
JUSTICES
                                                                                                    361-888-0794 (FAX)
  NELDA V. RODRIGUEZ
  DORI CONTRERAS GARZA
                                                                                                    HIDALGO COUNTY
  GINA M. BENAVIDES
                                                                                                    ADMINISTRATION BLDG.
  GREGORY T. PERKES
  NORA L. LONGORIA                       QCourt of ~peal~                                           100 E. CANO, 5TH FLOOR
                                                                                                    EDINBURG, TEXAS 78539
                                                                                                    956-318-2405 (TEL)
CLERK
  DORIAN E. RAMIREZ                    tEbfrteentb mtstrftt of tEexas                               956-318-2403 (FAX)

                                                                                                     www. txcourts.govl13thcoa

                                             December 18, 2014

      Mr. Gustavo Lopez Mireles                                  Hon. Rene A. Guerra
      TDCJ #1128895                                              Criminal District Attorney
      3001 S. Emily Drive                                        Hidalgo County Courthouse
      McConnell Unit                                             100 N. Closner, Room 303
      Beeville, TX 78102                                         Edinburg, TX 78539
                                                                 *DELIVERED VIA E-MAIL*

      Re:         Cause No. 13-14-00600-CR
      Tr. Ct. No. CR-3196-0 1-F
      Style:      Gustavo Lopez Mireles v. The State of Texas



              Enclosed please find the opinion and judgment issued by the Court on this date.

                                                   Very truly yours,
                                                   ~~$. ~~
                                                   Dorian E. Ramirez, Clerk

      DER:jgp
      En c.
      cc:   Hon. Rose Guerra Reyna (DELIVERED VIA E-MAIL)
            Hon. Laura Hinojosa (DELIVERED VIA E-MAIL)
            State Prosecuting Attorney (DELIVERED VIA E-MAIL)
            Hon. J. Rolando Olvera Jr. (DELIVERED VIA E-MAIL)




                                                    ~. :(   :-   .'   .
                                                                          ..
                                                                          ·
                                                                               ._,   ·",.. .~   .   ~ ·.\.   . .. ' .

                                                       ··-

               'l'   '\   ''   ··~-"
                     '·"·:'
                  THE THIRTEENTH COURT OF APPEALS

                                   13-14-00600-CR


                                Gustavo Lopez Mireles
                                            v.
                                  The State. of Texas


                                 On Appeal from the
                    206th DistrictCourt of Hidalgo County, Texas
                           Trial Cause No. CR-3196-01-F


                                     JUDGMENT

      THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes the appeal should be dismissed.        The Court orders the appeal

DISMISSED in accordance with its opinion.

      We further order this decision certified below for observance.



December 18, 2014
                           NUMBER 13-14-00600-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTl - EDINBURG

GUSTAVO LOPEZ MIRELES,                                                   Appellant,

                                         v.
THE STATE OF TEXAS,                                                       Appellee.


                  On appeal from the 206th District Court
                        of Hidalgo County, Texas.


                       MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Garza and Longoria
                  Memorandum Opinion Per Curiam

      Appellant, Gustavo Lopez Mireles, prose, filed a notice of appeal on October 14,

2014, from the trial court's September 29, 2014 denial of appellant's "Motion for

Disclosure Concerning Exculpatory Material Pursuant to the Due Process Clause of the

Fourteenth Amendment of the United States Constitution."       This Court previously
j

             The Court, having examined and fully considered the notice of appeal and the

    documents on file, is of the opinion that there is not an appealable order and this Court

    lacks jurisdiction over the matters herein. Accordingly, this appeal is DISMISSED for
         I


    lack of jurisdiction. All pending motions are likewise DISMISSED.

                                                                 PER CURIAM

    Do not publish.
    See TEX. R. APP. P. 47.2(b).

    Delivered and filed the
    18th day of December, 2014.




                                                3
                                                       (




                             ATTACHED

                              EXHIBIT

                                 B




Consist of:

   (1 )   Cause NO:   CR-3196-01-F State of Texas v. Gustavo L.
           Mireles  Reporter's Records   Volume 9.    Trial on the
           merits,  on the 6th day of August 2002.  State Forensic
           analysis Orlando's Ochoa's. trial testimony.

    (2)   EXECUTIVE BRANCH DEPARTMENT OF PUBLIC SAFETY TITLE
          4 Ch. 411 SUBCHAPTER G. DNA DATABASE SYSTEM, refrence
          to § 411.142. DNA Database (b) (f) (g) (h).

    (3) State's Exhibit #105 Texas Department of Public
        Safety Physical Evidence Submission Form and State's
        Exhibit #106 Serologist Orlando Ochoa's DNA Test
        Results conducted December 12, 2001.

  (4) McAllen Texas DPS. Crime Field Laboratory Shut-Down.
      News Paper articles of audit conducted.
                   for                       allen Texas
              DN  me  1e                            Motion
      ·-=-on uct a "court of Inquiry'.
  (6) Newly Discovered·~~orensic affidavit evidence from
      forensic analyst Harry J. Bonnell and Jonh Plunkett.
  (7) United States Department of Justice , Office of
      Justice Programs, National Institute of Justice
      letter and publication of "DNA For the Defense Bar"
      substantiating 13 loci search and match.
                                                              IN THE 13TH COURT OF APPEA !
                                                                     CORPUS CHRISTl

                             REPORTER •c;: RECORD            JUN- 5 2003
                              VOLUME        i-
                                            OF     TI
                      TRIAL COURT CAUSE NO. CR-3196-0¢.AJIHY WI
                                                        BY ---?JU----;

       THE STATE OF TEXAS               §        IN THE DISTRICT
                                        §
       vs.                              §        HIDALGO COUNTY, TEXAS
                                        §
       GUSTAVO MIRELES                  §        332N° JUDICIAL DISTRICT




                              REPORTER'S RECORD

                                Trial on the Merits



             On the   6tb   day of August,   2002 the following ·

       proceedings came on to be heard in the above-entitled
       and numbered cause before the Honorable MARIO RAMIREZ,

       Judge presiding, held in Edinburg,             Hidalgo County,

       Texas:

             Proceedings reported by oral stenography.



                                 RACHEL M. KRAM, CSR
                              OFFICIAL COURT REPORTER
                            92N° JUDICIAL DISTRICT COURT
                                    100 N. CLOSNER
                                  EDINBURG, TX 78539                    13-1-
                                      (956) 318-2250


  '·
                                                            ORIGINAL
",.

                                                        : C~ Ll': 2BEn JUii -
                                                    (E)                                              ..
              1                 A.    Those are used as a             reference or known

              2            standards that·we use to compare to unknowh evidente
                                                                                           '•.


               3           t ha,t
                              ..r
                                  we receive.
                           /'
               4       /        Q.    Concerning the two blood lifts                  from the
                   /
               5           outside of the Chevy pickup truck,                    the bldod ~tain

               6           from the victim's              jeans,   and the black hair that you

               7           recovered in the purse,                 could you determine who was

    .."        8           the most likely contributor of that DNA?
                                                                                                     /
                                                                                                         I
                                                                                                             I

               9                A.    Yes.
    I         10                Q.    Who is that?

              11                A.    It is consistent with the suspect.

              12                      And when you say consistent,                how do you

              13           determine if i t ' s consistent?
I         .
          I

              14                A.    Again,       we'.r.e· looking at the different regions

I    •
              15           o·f the DNA and comparing them to the differen-t --'-'>to

              16           the regions of the DNA to the known standard from the

              17           suspect.

              18                Q.    And the hair that you tested there was the

              19           pubic hair?

              20                A.    That is correct.

              21                Q.    What is the chance that the contributor of the

              22           DNA is    the defendant?

              23                             MR.    VILLARREAL:         Objection,     Your Honor,

              24           asking the witness to speculate.
                                                                         ~




              25                             THE STATE:            Your Honor,    he provides the




                                                         Rachel M. Kram, CSR
                                                    92ad Judicial District of Texas
                                                                                               ?.()
                                     (E)                                               .
                                                                                       Q
                                                                                           ~




    1   same information in his report and it's part of the

    2   same scientific testing he conducted.

    3                       MR. VILLARREAL:            Your Honor,       the

    4   specificity of his report is based on six million
                                                                     .     ~·,
    5   people -- I'm sorry,             I believe six billion people

    6   worldwide.          We're talking about 147 billion people,

    7   which exceeds the six billion that are in the world

    8   alone,     so where is the basis there?                 And more

    9   importantly,          Your Honor,     that did not allow for             th~

10      specific races,          Caucasian,     Negroid, Afro-American,                ~nd

11      Mexican-American or Hispanics.

12                          THE COURT:       The objection is overruled.

13           Q.     (By Mr.      Schammel)      When you make your

14      comparison,         do you factor -- do you base the

15      ·comparison based upon different races and the

16      probability that that DNA will appear in different

17      races?

18           A.    Well,·we do.            Once we get a DNA profile --

19                          MR. VILLARREAL:        Objection,        Your Honor,

20      becoming nonresponsive;              calls for a yes or no answer.

21                          THE COURT:       Sustained.

                    (By Mr.      Scttammerr--·wha t
22

23
            Q.
                       . -·
        the res u 1 t s ?
                              -------·                   a~·-yo-n




2           A ..   We provide a probability of a match.
                                                   ,.
                                                   '
                   And what is the -- what do you use as




                                     Rachel M. Kram, CSR
                                 92ad Judicial District of Texas
,..    \
._.;.---


                          ;.'
                      o-
                    c.,
                ~

            )y                  1    for the probability of the match?

           ~~                   2       A.     It's a data base,. it's a computer system that

                                 3   we use where we     ~nter      the DNA profile that we obtained

                                 4   from the evidence and it provides us with a
                                                                                              .·::-,
                                 5   statistical value.

                                 6      Q.     Does that statistical value -- is it

                                 7   correlated for different races or is it for the world

                                 8   in general'?

                                 9      A.     It -- i t ' s divided into different -- three

                                10   different races.

                                11      Q.     Which races is it divided into'?

                                12      A.     Caucasian,        Blacks, and Hispanics.

                                13      Q.     What is the chance of seeing the DNA

                                14   profile        what is the probability of a person be~ng

                                15   the source of the DNA profile that you                obtain~'?


                                16      A.     The -- for which items'?.

                                17       Q,    For the blood stains from the Chevy pickup,

                                18   the blood stain on the victim's jeans,                and the pubic

                                19   hair found in the purse.

                                20      A.                                               '
                                               For -- the DNA profile that was ~btained from

                                21   the blood stain of the Chevy pickup,             the blood stain

                                22   from the victim's jean, and one of the pubic hairs

                                23   from the black purse,         the probability of selecting an

                                24   unrelated. person at random who could be the source of
                                                                         ~
                                25   this DNA profile is approximately one in




                                                              Rachel M. Kram, CSR
                                                         92 d Judicial District of Texas
                                                            11
                                       (A)-(a,)




       1                          THE COURT:          That's sustained.

       2           A.     Carr ---let· me --

        3                         THE COURT:          Wait a minute.        Go ahead,

        4   Mr .   S c h a mm e 1 •                                              ~-



        5          Q.     (By Mr.        Schammel)       Given the population of the

        6   world,      how likely is it that this is the -- that the

        7   defendant is the person?

        8          A.     Again,        one in 1 trillion-168 billion for

        9   Caucasians, one in 301 trillion-700 billion for

       10   Blacks,       and one in 147 billion-300 million for

       11   Hispanics.

       12          Q.     Now,        was there any other DNA that was obtained

       13   from any other items?

       14          A.     Yes,        there was.

I- .   15          Q.     Was there any other DNA obtained from items

       16   that matched the defendant?

       17          A.     Yes.

       18          Q.

       19          A.     A se            hair from the

       20

            being the person who contributed that DNA sample?

       22          A.     One in 34,230 for Caucasians,                  one in 181,900

       23   for Blacks,          and one in 24,180 for Hispanics.

       24          Q.     Now,        why is there a      var~ance       from that

       25   particular hair,              the DNA you obtained there,            compared




                                                Rachel M. Kram, CSR
                                         92Dd   Judicial Distri  f Tex
                                                                                                     0
                                                                                                     •   J




 1    to the DNA you obtained on the other hair?

 2         A.      Yes,     because we're looking for,                   as I mentioned

 3    earlier,       we're looking for various reqions of the DNA.
                                                                      ' ....   ,
 4    Wfl'~e testing various regions,                   nine regions of the DNA

      plus the sex chromosome that allows us to Heterrnine if

      the -- the body fluid comes from a male or a female.

 7    Depending on how many of those regions we're                                               able~
  8   recover doing our DNA analysis and do a comparison,

  9   the numbers may vary.                    In other words,        if we get a

10    full profile,           if we're able to get all nine regions to

11    come up and give us a profile for the                          spec~men                      or for

12    the body fluid,             then we're able to compare those nine

13    regions and get a better number whereas if we were to

:14   compare -- because we only got two -- two or three of

      the regions,           we're not able to compare as.mani regions

      of the DNA so we're not able to get the more

17    specific -- or the more specifiG statistical

18          Q.      What are some of the reasons that you would

19    obtain less than all nine of these points that you're

20    lookiQ.g. for?-···-····-···-··-··-·---··-··

            A.      Again,      the conditions of the body fluid,                                   of
                                                                                                             •
      the evidence itself.                   Well,   was there degradation of

      the DNA,        were there dyes or chemical that might have

      interfered with the technology,                    the DNA processing.

            Q.      Was there any other DNA obtained in this case?


                                                                                   ..... -·""'
                                                                                                 _____/
                                        Rachel M. Kram, CSR
                                   92ad Judicial District of Texas
                                                                                                                                     ~~
(                                            (c)                0.
                                                                     q                                               -------....;.;:::..-_
                                                                                                                                        -/




    1          A.           Yes,              there was.
                                                                         • . •   •   ~   a,   ••   ..........




    2          Q.           And was there any of.that DNA~t matched the
                                                                                                                '·
    3    victim in this case?

     4         A.            Yes,             there was.

     5         Q.            What specifically did you find that matched).
     6   the victim?                                                                                                                     \

     7         A.            A hair obtained from the victim's socks and
                                                                                                                                I
     8   blood from the victim's fingernail scrapings.

     9         Q.            And these were consistent with Mary Jane?

    10         A.            Correct.

    11         Q.            And what is the likelihood
                                                 ....   that she was the

    12   person that                         l~ft   that DNA there?

    13         A.            One in 28 for Caucasians, one in nine for

    14
               Q.            Now,             this is extremely low.
                          that?

               A.            The blood itself that was recovered from the

         victim was not letting itself to DNA analysis,                                                               so I          ;

    19   wasn't able to get a complete profile from the known

    20   blood.                  It appeared to be diluted.                                            It could have been

    21   caused by -- during the autopsy or something that it                                                                           . I



         might have been diluted out to where I wasn't able to

         get    g.~d               DNA.
                   ,..::......   .. ... ..                                                    ---·· -··------··
    24         Q.            As to the blooo· under the                                  V~ctim' s fingernails
                                                                         ~


    25   and on the hair from the sock,                                  you can say that the



                                                       Rachel M. Kram, CSR
                                                    92DdJudicial District of Texas
.
!




                                                        VoL 9.                        •   J




     1      defendant is not the contributor there?

     2                A.   Yes.

     3                Q.   Now,   were there any items on which no DNA was

     4       recovered?

     5                A.   Yes,   there was.

     6                Q.   Several?

     7                A.   Yes.

     8                Q.   The screwdrivers and knives that were

      9      admitted,        was there any blood or other DNA evidence

    10       recovered from those?

    11                A.   There was no blood detected.

    12                Q.   As to the drill bit also?

    13                A.   Which item are you referring to?

    14                Q.   Item number 42-B on your list.               It would be

    15       State's 73-B.

    16                A.   No blood was detected.

    17                            THE STATE:     Permission·to approach the

    18       witness?

    19                            THE COURT:     Yes.

    20                Q.   (By Mr. Schammel)         Let me show you what was

    21       previously marked as State's 85,                and it was previously
                                                                                              •
    22       testified that there is nothing inside of State's 85.

    \?3      Do you see anything there?
     '·
    24    ... _   .   A.   No .

    25                Q.   What was the laboratory number on State's 85?




                                          Rachel M. Kram, CSR
                                      9lad Judicial District of Texas
. !




                                 B                                        lo[. ~-


               Q.     So if you look at other places,                you might hav\

           been able to find someone else?                                                         \

               A.     You're going to -- the probability,                    again,

           would be that you would find that pr?file in another

       5   individual.

       6       Q.     So if we got 31 people in there,                   there's a                     I
       7   probability or a possibility that one of us did it?

       8      A.      Or that one of you has that DNA profile.

       9   like you mentioned with the DO alpha that i t ' s one

      10   region and that's why you get the statistical values

      11   of one in 14, I     believe you said,           one in 20- --

      12      Q.      One in 28 total and in Hispanics is one in

      13   five.

      14      A.      Right.   And so that's why we --we look at

      15   more than one region,       more than two regions.                    We look

      16   at nine,    ten regions up to 13 regions to make it more

      17   specific to an individual.

      18              It's --for example,           if you don't mind me

      19   explaining a little bit more.              I t ' s 1 i ke ,    f or   e x a ~p 1 e ,

      20   you're looking for an individual.                Well,        you're

      21   looking for a female,       so that's going to cut out all

      22   the males.     You're looking for a           female that is                       ..
      23   looking five foot -- five feet,             so that's going to cut

      24   out everybody that's not five feet.                 So the more
                                                '
      25   things that you look at,        the ·more specific it becomes




                                    Rachel M. Kram, CSR
                               92ad Judicial District of Texas
,,
~
    ,




                             ,_'l                                                                /.J
                         L •
                  } '1       ij
             '\!._'   \C'j           1   is.        That's not --

                                     2         Q.      So if the stain was two weeks old,              yo~


                                     3   couldn't tell the difference between a two-day old and

                                     4   a two-week old stain,          would you?_

                                     5         A.      That's correct.
                                                                               --···
                                     6         Q.      And if the stain were let's say contaminated

                                     7   as you say the victim's blood was,               which you could not

                                     8   type -- is that correct,             you could not type her

                                     9   blood -- or you found no DNA?
        I
                                    10         A.      It didn't give    u~   -- it didn't give us all of
        ~                                                                I

                                    11   the regions that we looked at or that we amplified.

                                    12         Q.      Which means you got negative results on her

                                    13   DNA?
                                    14         A.      On some of the -- we got like maybe two locus

        ~                           15   out of 10 loci that we looked at.

                                    16         Q.      Let's talk plain English.

                                    17         A.      ~·
        "l
        ~                           18         Q.      You didn't match her own blood.

                                    19         A.      We didn't match her own blood?
        1
                                    20         Q.      Yeah.

                                    21         A.      That's not-- npt necessarily true.

                                    22         Q.      But is it possible?

                                    23         A.      That you're not matching

                                    24         Q.      Could you put it that way?

                                    25         A.      That you're not matching someone's blood?




                                                                    Rachel M. Kram, CSR
                                                               92od Judicial District of Texas
     1       Q.    Yes.

     2       A.    Well,       if you're obtaining the blood from t:

     3   individual,      you know that that individual -- it

     4   belongs -- or that blood belongs to that individua

     5       Q.    That ' s common s ens e ,       i sn' t   it ?

     6       A.    Yes.

     7       Q.    But if DNA says according to -- and is use

     8   a known standard,         your item number 22-A,           blood fro

     9   victim,   however the blood was not suitable for                 DNA
I
    10   analysis.       Common sense says i t ' s her blood.

    11             ~------------------------
            Q.     But DNA says it's not.

            A.     N~t    --   it'~   not saying that i t ' s not her

         blood.    It's saying that it wasn't able to                provid~


         with --

            Q.     See,    we've been playing word games with th

         other

    18      A.

    19

    20                    THE STATE:        Objection to the side bar

    21   Your Honor.

    22      Q.           DNA

    23                    THE COURT:        Hold on.

    24                    MR. VILLARREAL:          I apologize,     Your He

    25   and to the      jury.




                                     Rachel M. Kram, CSR
                                 92ad Judicial District of Texas
;~ _-




         § 411.1405                                                           F..xECUTIVE BRANCH               DEPARTMENT. OF PUBLIC SAFETY                                                      § 411.142
                                                                              \                    Title 4     .Ch.411
           (c) A state agency that obtains criminal history recon~ information under this                                          SUBCHAPTER G.            DNA DATABASE SYSTEM
         section may not release or disclose the information or any documents or other
         records derived from the information except:                                                                                                 CroSs References
              (1) by court order;                                                                              Community supervision, conditions, submission of sample for purpose of creating a DNA record,
                                                                                                                   see Vl'fllon's Ann.C.C.P. art. 42.12. ·
                                                                                                                                                                                                                 ri\
              (2) with the consent of the person who is the subject of the .information; or
              (3) to the affected <;_ontractor or subcontractor, unless the" information was                   § 411.141. Dellnitions                                                                            ~
           obtained by the department from the Federal Bureau ~f Investigation.                                   In this subchapter:
           (d) A state agency and the affected contractor or subcontractor shall destroy                            (1) "DNA" means deoxyribom.icleic acid.
         criminal history record information obtained under this section that relates to a
         person after the information is used to make an employl:nent decision or to take                           (2) "DNA database" means the database that contains forensic DNA .~ec­
         a personnel action relating to the person who .iS the subject of the information.                        ords maintained by the director.
                                                                                                                    (3) "DNA laboratory" means a laboratory that performs forensic DNA
             (e) A state agency may not obtain criminal history record information under
                                                                                                                  analysis on samples or specimenS- derived fro1n a human body or crime
          this section unless the state agency first adopts polici~s arid procedures that
                                                                                                                  scene.
          provide that evidence of a criminal conviction or other relevant information
          obtained from the criminal history record information-does not automatically                              (4) "DNA record" means the results of a forensic DNA analysis performed
        . disqualify an .individual from employment. The attorney general shall review                            by a DNA laboratory and; if known, the name of the person who is the subject
          the_ policies and procedures for compliance with due grocess and other legal                            of the analysis.                            ·
          req~irements before adoption by the state agency. The attorney _general may                               (5) "FBI" m~::ans the Federal Bureau of Investigation.
          charge the state agency a fee to cover the cost of the review. The policies and                           (6) "Institution of higher education" has the meaning assigned by Section
          procedures adopted under this subsection must providei that-the hiring official                         61.003, Education Code.                             ·
          will determine, on a case-by-case basis, whether the in~ividval is qualified for
                                                                                                                    (7) "Institutional division" means the institutional division of the Texas
          employment based on factors that include:                                          .
                                                                                                                  Department of Criminal Justice.
                (l) the specific duties ofthe position;
                                                                                                                    (8) "Penal institution" has the meaning assigned by Section 1.07, Penal
                (2) the number of offenses committed by the individual;                                           Code.                   '
                                                                                                                                                                                           "'"
                (3) the nature and seriousness of each offense;                                                 Added by Acts 1995, 74th Leg., ch. 595, § 1, eff. Sept. 1, 1995.
                (4) the length of time ben."veen the offense and the employment d~cision;
                (5) the efforts by the individual at rehabilitation; and                                                                       Historical and Statutory Notes
                                                                                                                  Section J{a) of Acts 1995, 74th Leg., ch. 595   chapter G, Chapter 411, Government Code, as
                (6) the accuracy of the information on the~ individ4al's employment appli-                      provides:    · ·               ·                  added by this Act, not later than January 1,
              cation.                                                                                             'The director of the Department of Public       1996."'
                                                                                                                Safety shall adopt the rules required by Sub-
              (f)-A-criminal-history-record-irifotrna!ipri proviSion }n_:anoilier_@w.that is
          (~.o~e _specific:to-a:siaie ·.;_g-~~~._:jii~i~dm.g·_ Se~tJ.o!1~41 ~ iOS~ .yrellail~-<?v~_~:_,_this                                     Research References
          ~
           section to the-extent of any cohllict..                                                              Encyclopedias                                  tion-Placing Child on Probation for Con-
                                                                                                                 TX Jur. 3d Criminal Law§ 4372, Registration   duct Constituting Sexual Offense.
          Added by Acts 2003, 78th Leg., ch. 87, § 1, eff. Sept. 1, 2003.                                          as Sex Offender; Ochiectomy.
                                                                                                                 TX Jur. 3d Crimiiial Law Five XX B Ref., Treatises and Practice Aids
                                                                                                                   Divisional References.
                                                 Library ReferenceS
                                                                                                                Forms
                                                                                                                                                                    Dix
                                                                                                                                                                  and Da.;..son, 43A Tex. Prac. Series
              Criminal Law =1226{2).                                                                                                                           § 39.110, Submit a Doa Sample to Dps.
                                                                                                                 Texas Jurisprudence Pleading & Practice
              Westlaw Topic No. 110.                                                                               Forms 2d Ed§ 94:36.10, Order-Of Disposi-
              C.J .S. Criminal Law§ 1734.

                                                 Research References                                            § 411.142. DNA Database
          Encyclopedias                                                                                           (a) The director shall record DNA data and establish and maintain a compu-
              TX Jur. 3d Public Officers & Employees                                                            terized database that serves as· the central depository in the state for DNA
                § 165, Generally; Merit System.                                                                 records.                 ,:                                 ·
                                                           152                                                                                       153



                                                                                  ·t···,
                                                                                                         --I
                                                                                                                      ·n
~7      §411.142 I
                ..                                    .   .   .
                                                                                    'EXECtmVE BRANCH
                                                                                            . "'l             n~e 4
                                                                                                                       ~ ~-

                                                                                                                                              DEPARTMENT OF PUBUC SAFElY
                                                                                                                                              Ch. 411                ..   .                   .
                                                                                                                                                                                                                                               § 411.143

        la&~1~};~~~~~Wl~"!rffi~t6~l!~~~:J:t·itseJn · th~ department's. c~~e                                                                   § 4i Ll43 .. Purposes

          (c) The director m~y receWe, analyze, store, and, destroy a record. blood                                                             (a) The principal purpose of the DNA database is to assist federal, state, or
        sample;      or'
                    o~er specimen for the purposes d~bed' bY ,Section 4Il.143~                                                                local criminal justice or..                law
                                                                                                                                                                             enforcement agencies in the investigation or
                                                                                                                                              prosecution of sex-related offenses or other offenses in which biological evi-
       .th~~~~~[~*~.ifJ~t~~~~;i~l;~~~;~~~~hiri~;-~lld. ~torlng                                                                                dence is recovered.

          (e) The director,. With advice from the Department of Information Resources,
       shall develop biennial plans to:
             (I) improve the rePQrting and accuracy of the j)NA d~tabase; arid
             (2) deveiop and maintain a monit~nng systefu''~P'able ofidentifying in~c-                                                             (c) Otherpurposes of the database include:
          curate or incomplete infOrmation.            · . · _. • : ' . .
                                                                 1
                                                                                   .   •          .                                                   frl~g~~n,;,Ufe~ic~~~~iai"lififl~'iiio'WFof£h:illn:an~'!!..~~""1n>.'!!Y~'
          (O":...tli·~-~DNA-:c:latabase·;must'be comlfaulileWjth the ·nation~! DNA identifica..:_                                                 · ·disaster,:or:.forc[tluinariitaR'~~es·

                                                                                                                        ::·,
                                                                                                                                                    f.:..~~~~· .;?'>'<ct'-;i-~.-!:.~~ ...- ·- . ·· -r--.::tf~ •
     =lion-index S}'!lteni (CODis)-usecfbY.iliii: BJJ tcithe.extent ·ffiillii-ed by.the FBI--tQ/                                                     (2) assisting in the. identification of living or deceased missing persons;
      r~"frnl(th~~fUI.:'i;xcliirige·ai:!ct:sior:age~of,DNAxecorikorinfonnation·deriv~.d                                                            and                   ·:
     ..~Arom.those reoori:IS.)-              ··                      ·           . '· . .           ·
           ~'-''"""-"""'DN·;;,.v:.~~~.··
          (~ei                         ..,~·· ~""'""'~D-N-~:!!!~:;':i'cc:•"'it!'!?'t•t·I""'"''"""'D'I.;,~             '1""                             (3) if personal identifying information is removed:



                                                                                                                      ~1~~~
                      • , n J!~Ui15e~InaYJi.c;on'-'!!'.t<    · n'recOii<J:;';lO~;!ILQ~g;q
                                                                                                                                                          (A) establishing a population statistics database;
          ., (I) a person described by Section 411.148 or 4J 1.150;
                                                                                                                                                          (B) assisting·in idt:ntification research and protocol development; and .
             (2) a biological specinieil of a deceased victim. of~ ~rime;
             (3) a biological specimen that is legally obtained in. the investigation of a                                                                (C) assisting ih database or DNA laboratory quality controL
           crime, regardless of origin;         · · · •                                                                  .. ~:
                                                                                                                       <'"'·                    (d) The inf()rmation contained in the DNA database may not be collected,
                                                                                                                      . ·..· .;,::
            . (@~testing ordered under Article 64:03, Cod; of Criminal Proce-                                                 ~:
                                                                                                                                              analyzed, or. stored to obtain information about human physical traits or
         . dure·    .      ·                 ·.    · •                                                                                        predisposition for disease unless the purpose for obtaining the information is
          .·tfS,~Utifi~~iitii)e~or¥u~~$~~~ta1Pfrema~;§?                                                                                       related to a purpose described by this section.
                                                                                                                                                                                   .                                                     ~




        ~~~;              '                                    .· .                                                                    elf~   ·  (e) The director may not store a name or other personal identifying informa-
             (6) a close biological relative of a person who has;J:,een reported missing to                                                   tion in the CODIS database. A file or reference number to another information
         a law enforcement agency;                                                                                                            system may be included in the CODIS database only if the director determines
             (7) a persori at risk of becoming lost, such as a child or a person declared                                                     the information is necessary to:
         by a court to be mentally incapaCitated, if the recOrd is required by court                                                                   (I) generate an ilivestigative lead or exclusion;
         order or a parent, conservator, or guardian of the,, person consents to the
                                                                                                                                                       (2) support the statistical interpretation of a test result; or
         record: or
             (8) an unidentified person, if the record does not contain personal identify-                                                             (3) allow for the successful implementation of the DNA database.
         ing information.                                                        ·                                                              (f) Except as provided by this subchapter. the DNA database mav nut incluJe
           (h)[The -deR'artmentsha:tr e~l51 isn StaJ]da.r.ds.for~DNA .·anal y~is   th~;DN A         ->b;. .                                   criminal history record information.
        laboratory th.at.meet .or. exceed the current standards for· quality assttrance <,!n_d                            ......~
                                                                                                                                              Added by i\cts 1995, 74th Leg., ch. 595, § I, t:ff. Sept. I, 1995.
        ,p}oficie~cy_ ~sti_Qg forJorensic;~Dl':JA ,analnLsjss·ued.-by.. the FBI-. -ThL.'oNA                                   --~r/·



                                                                                                                         ~~{~·
        data·b.;:.;e may contain only DNA records of DNA analyses performed according                                                                                                             Libr"ry References
        to the standards adopted by the department.                                   . ·
                                                                                                                                                  ·criminal Law ~1226(1).                                         CJ.S. Criminal Law§ 1734.
        Added by Acts 1995, 74th Leg., ch. 595; § I, eff. Sept. I, 1995. Amended by Acts 100 I,                                                    Searches and Seizures €=>78.                                   CJ.S. Searches and Seizures §§ J I. I 03 to
        77th Leg., ch. 2. § 4[e!T.-Ajmr5;--200ll.                                                                                                  West]aw Topic Nos. 110. 349.                                     106.
                                 ....._,._~




                                                    Library ReferencH                                                                                                                          Research      References
          Criminal Law<!=> 1226( 1).                                                                                                          ALR Library
          Westlaw Topic No. 110.                                                                                                               76 ALR 5th 239. Validity. Construction. and
          C.J.S. Criminal Law§ 1734.                                                                                                             Operation of State Dna Database Statutes.
                                                              154                                                                                                                                          155
1       £!'
 I
         \
                                                                                                                                                                                                    ~~
              . §41l.143                                                               EXECUTIVE BRANCH                    <DEPARTMENT OF PUBLIC SAFElY                                                         §411.145
                                                                                                              Title 4      Ch. 411
                                                       Notes of Decisions                                                     (c) The director may at any reasonable time enter and inspect the premises
              In general I                                          establish a population statistics database, assist      or audit the procedures of any DNA laboratory that provides DNA records or
              Privacy rights   3                                    in identification research and protocol develop-
              Purpose 2                                             ment, and assist in database or DNA laboratory        . _DNA forensic analyses to the department under this subchapter.
                                                                    quality control. In re D.L.C. (App. 2 Dist. 2003)        (d) A DNA laboratory conducting a DNA analysis under this subchapter
                                                                    2003 WL 22976095. Searches And Seizures e=>
                                                                    78
                                                                                                                           shall:                .
               I.  In general
                 For purposes of Fourth Amendment analysis                                                                       (1) forward the DNA record of the analysis to the director at the depart-
              of legality of blood. draw ordered pursuant to        3.   Privacy rights · ·
                                                                                                                           ,., ment's crime laboratory or another location as required by the department;
              statute, purposes of statute establishing state          Statute permitting juvenile courts _to require
              DNA 'databank demonstrated need for DNA               submission of blood or other samples for pur-
                                                                                                                               and
              samples beyond normal need for law enforce-           poses of DNA records as condition of probation               (2) comply with this subchapter and rules adopted under this subchapter.
              ment; statute was not designed to discover and        in delinquency adjudication proceedings did not
              produce evidence of specific individual's crimi-      promote traditional aims of punishment, despite          (e) If a DNA laboratory violates this subchapter or a rule adopted under this
              nal wrongdoing. In re D.L.C. (App. 2 Dist.
              2003) 2003 WL 22976095. Searches And Sei-
                                                                    potential deterrent effect of existence of offend-     subchapter, the director· may prohibit the laboratory from exchanging DNA
                                                                    er databank, for purposes of determining
              zures e=> 78
                                                                    whether statute was punitive in its effect, as
                                                                                                                           records with another DNA laboratory or criminal justice or law enforcement
                 Statute permitting juvenile courts to require      element of ex post facto analysis, where legisla-                 A DNA laboratory prohibited from exchanging DNA records under
              submission of blood or other samples for pur-         tively stated purpose of statute was identifica-       this subsection may petition the director for a hearing to show· cause why the
              poses of DNA records as condition of probation        tion, that is, to exclude or include registrants as
              iri delinquency adjudication proceedings was          suspects in past and future offenses; and
                                                                                                                           laboratory's authority to exchange DNA records should be reinstated.
              not punitive on its face, for purposes of ex post     "threat" of blood draw was not, in itself, signifi-
 t'
              facto analysis; statute's location in dispositional
                                                                                                                             (f) The director is the liaison for DNA data, records, evidence, and other
                                                                    cant enough to deter potential offenders from
              portion of juvenile justice code did not render       committing sex offenses. In re D.L.C. (App. 2          related matters between the FBI and a DNA laboratory or a criminal justice or
              statute punitive, and legislature's express, pri-     Dist. 2003) 2003 WL 22976095. Constitutional           law enforcement agency. ·          ·                              ' ·
              mary intent in creating DNA record was to             Law e=> 203; Infants e=> 132
              assist with identifications in past and future· sex                                                            (g) The director may: ··
              offenses. In re D.L.C. (App. ~ Dist. 2003) 2003          Statute permitting juvenile courts to require
              WL 22976095. Constitutional Law e=> 203; In-          submission of blood "r other samples for pur-               (1) conduct DNA analyses; or
              fants e=> 132                                         poses of DNA records as condition of probation             (2) contract with a laboratory, state agency, private entity, or institution of
                                                                    in delinquency adjudication proceedings did not
              2.   Purpose                                          impose aft1rmative disability with respect to ju-     '"'higher education for services to perforrii DNA analyses for the department.
                 For purposes of Fourth Amendment analysis
              of the legality of a blood draw ordered pursuant
                                                                    venile probationers' constitutional · privacy
                                                                    rights, for purposes of determining whether
                                                                                                                             (h) The institutional division may:                           ....
              to statute, the primary purpose of the state DNA      statute was pun;tive in its effect as element of ex        (1) collect a blood·sample or other specimen for forensic DNA analysis; or
              databank is to assist in investigation or prosecu-    post facto analysis; constitutional rights of juve-
              tion of sex-related offenses or other offenses in     nile probationer$, including constitutional pri-           (2) contract with a laboratory, state agency, private entity, or institution of
              which biological evidence is recovered and to         vacy rights, were diminished, and possibility of         higher education for services to collect a sample or other specimen under this
              exclude or identify suspects; secondary pur-          wrongful disclosure of information was mini-
              poses are to assist in recovery or identification     mized by statutor1 limitations on disclosure. In
                                                                                                                             subchapter.
              of human remains from a disaster or for hu-           re D.L.C. (App. 2 ·Dist. 2003) 2003 WL
                                                                                                                           Added by Acts 1995, 74th Leg., ch. 595, § I, eff. Sept. I, 1995. ·



        't
              manitarian purposes, to assist in identification      22976095. Constitutional Law e=> 82(1 0); Con-
              of living or deceased missing persons, and to         stitutional Law e=> 203; Infants e=> 132
                                                                                                                                                                  Cross References
                                                                                                                           Crime laboratory, accreditation process, see V.T.C.A., Government Code,§ 411.0205.
               § 41l.144. Regulation of DNA Laboratories; Pena,lties                                                       Regulation of DNA testing, see V.T.C.A., Government Code § 411.0206.

                 (a) The director by rule shall establish PI:Ocedures for a DNA laboratory or                                                             Administrative Code References
               criminal justice or law enforcement agency in the· collection, preservation,
                                                                                                                           DNA database,
                                                                                                                                   .     see 37 .TAC § 28.1 et seq.
               shipment, analysis, and use of a blood sample or other specimen for forensic
               DNA analysis in a manner that permits the exchange of DNA evidence between                                                                        Library References
               DNA laboratories and the use of the evidence in a criminal case.                                              Criminal Law e=>I226(1).                         C.J.S. Criminal Law§ 1734.
                 (b) A DNA laboratory or criminal justice or law enforcement agency shall                                    Searches and Seizures e=>78.                     C.J.S. Searches and Seizures §§ 31, 103 to
                                                                                                                             Westlaw Topic Nos. 110, 349.                       106.
               follow the procedures:
                    ( 1) established by the director under this section; and
                                                                                                                                             Fees
                    (2) specified by the FBI, including use of comparable test procedures,
                 laboratory equipment, supplies, and computer software.                                                      (a) The director may collect a reasonable fee under this subchapter:
                                                       156                                                                                                       157




...._
§ 411.145                                                   EXECUTIVE BRANCH               DEPARTMENT OF PUBLIC SAFElY
                                                                                Title 4    Ch. 411                                                                              § 411.147
       (1) for the DNA analysis of a blood sample or other specimen submitted                 (0 If possible, a second DNA specimen must be obtained from a suspect in a
     voluntarily to the department; or                                                     criminal investigation if forensic DNA evidence is necessary for use as substan-
       (2) for providing population statistics data or other appropriate research          tive evidence in the prosecution of a case.
     data.
                                                                                           Added by Acts 1995, 74th Leg., ch. 595, § 1, eff. Sept. 1, 1995 ..
  (b) A fee collected under this section shall be deposited in the state treasury
to the credit of the state highway fund, and money deposited under this section                                                  Library References
and under Article 102.020(h), Code of Criminal Procedure, may be used only to                Searches and Seizures ~78.                         C.J.S. Searches and Seizures §§ 31, I 03 to
defray the cost of administering this subchapter.                                            Westlaw Topic No. 349.                               106.

Added by Acts 1995, 74th Leg., ch. 595, § I, eff. Sept. I, 1995. Amended by Acts 200 I.
77th Leg., ch. 1490, § I, eff. Sept. I, 2001.                                              § 411.147. Access to DNA Database Information

                                   Library References                                        (a) The director by rule shall establish procedures:
     Criminal Law ~1226(1).                                                                     (I) to prevent unauthorized access to the DNA database; and
     Westlaw Topic No. 110.
     C.J.S. Criminal Law§ 1734.                                                                (2) to release DNA records, specimens, or analyses froin ·the DNA data-
                                                                                             base.
                                                                                            (b) The director may adopt rules relating to the internal disclosure, access, or
§ 411.146. Blood Samples or Other Specimens
'\
                                                                                          use of a sample, specimen, or DNA record in the department or it DNA
  (a) The director may not accept a blood sample or. other specimen taken                 laboratory.
from a person who is not deceased that is submitted voluntarily or as required              · (c) The department nay release a DNA sample, analysis, or record only:
by Section 411.148 or 411.150 unless the sample or specimen is collected in a
                                                                                                (1) to a criminal .iustice agency for law enforcement identification pur-
medically approved manner by:                           '                                     poses;
       (1) a physician, registered nurse, licensed vocctionai nurse, licensed clini-           (2) for a judicial p<oceedi.ng, if otherwise admissible under law;
     cal laboratory technologist; or
                                                                                              (3) for criminal defense purposes to a defendant, if related to the case in
       (2) another person who is trained to properly collect blood samples or                which the defendant is charged; or
     other specimens and supervised by a licensed phy~;ician.                                  ·(4) if personally identifiable information is removed, for:
  (b) A person collecting a blood sample or other specimen under this section                     (A) a population statistics database;
may not be held liable in any civil or criminal action if the person collects the                 (B) identification research and protocol development; or
sample or specimen in a reasonable manner according to generally accepted                         (C) qilality control.
medical or other professional practices.
                                                                                            (d) The director may release a record of the number of requests made for a
   (c) The director shall provide at no cost to a person described by Subsection          defendant's DNA record and the name of the requesting person.
(a) the specimen vials. mailing tubes and labels. report forms. and instructions
for collection of blood samples or other specimens under this section.                      (e) A law enforcement agency may have access to DNA specimens through
                                                                                          the agency's laboratory for law enforcement purposes.
  (d) A person who collects a blood sample or other specimen under this
section shall send the sample or specimen to:                                               (0 The director shall maintain a record of requests made under this section.
        (I) the director at the department's crime laboratory; or                         Added by Acts 1995, 74th Leg., ch. 595, § 1, eff. Sept. 1, 1995.

        (2) another location as required by the director by rule.                                                                Cross References
  (e) A DNA laboratory may analyze a blood sample collected under this                    Crime laboratory, accreditaticn process, see V.T.C.A., Government Code, § 411.0205.
                                                                                          Regulation of DNA testing, see V.T.C.A., Government Code § 411.0206.
section or other DNA specimen only:
        (1) to type the genetic markers contained in the sample or specimen;                                                   Library References
        (2) for criminal justice and law enforcement purposes; or                          Criminal Law ~1226(1).
                                                                                           Westlaw Topic No. 110.
        (3) for other purposes described by this subchapter.                               C.J.S. Criminal Law§ 1734.
                                           158                                                                                          159
 --~-
                                                                                                                                                             ·--r--
§ 411.1471                                             EXECUTIVE BRANCH            DEPARTMENT OF PUBLIC SAFETY                                                           § 411.1472
                                                                         Title 4   Ch. 411
§ .411.14 71. DNA Records of Persons Charged With or Convicted of Cer-               .(e) Notwithstanding· Subsection (d), on acquittal of a defendant described by
                  tain Felonies                                                    Subsection (a)(l) or (2) or dismissal of the case against the defendant, the court
                                                                                   shall order the law enforcement agency taking the specimen to immediately
 (a) This section applies to a defendant who is:                                   destroy the record of the collection of the specim~n and require the department
    ( 1) indicted or waives indictment for a felony prohibited or punishable       to destroy the specimen and the record of its receipt.             ·
  under any of the following Penal Code sections:                                    (0 A defendant who provides a specimen under this section is not required to
       (A) Section 20.04(a)(4); r                                                  provide a specimen under Section 411.1472 or provide a sample or specimen
       (B) Section 21.11;                                                          under Section 41 L 148 or 411.150 unless an attorney representing the state in
       (C) Section 22.011;                                                         the prosecution of felony offenses establishes to the satisfaction of the director
                                                                                   that the interests of justice or public safety require that the defendant provide
       (D) Section 22.021;                                                         additional samples or specimens.
       (E) Section 25.02;
                                                                                   Added by Acts 200 I, 77th Leg., ch. 1490, § 2, eff. Sept. I, 200 I.
        (F) Section 30.02(d);
        (G) Section 43.05;                                                                                            Historical and Statutory Notes
        (H) Section 43.25; or                                                        Section 8 of Acts 2001, 77th Leg., ch. 1490      under Sections 411.1471 and 411.1472, Govern-
                                                                                   provides:                                          ment Code, as added by this Act."
        (I) Section 43.26;                                                           "The director of the Department of Public
                                                                                   Safety of the State of Texas, not later than         Section 9 of Acts 200 I, 77th Leg., ch. 1490
    (2) arrested for a felony described by Subdivision (1) after having been       January I, 2002, shall adopt rules relating to     provides that tliis section applies to a defendant
 'previously convicted of or placed on deferred adjudication for an offense        duties i!fiposed on law enfo-rcement agencies      arrested on or after February I, 2002.
  described by Subdivision. (I) or an offense punishable under Section
  30.02(c)(2)~ Penal Code; or                                                                                              Library References
    (3) convicted of an offense under Section 21.07 or 21.0'8, Penal Code.           Criminal Law= 1226(1 ).                            C.J.S. Criminal Law§ 1734.
                                                                                     Searches and Seizures <!::>78.                     C.J.S. Searches and Seizures §§ 31, 103 to
  (b) After a defendant described by Subsection (a)(l) is indicted or waives         Westlaw Topic Nos. 110, 349.                         106.
indictment, the court in which the case is pending shall require the defendant                                                                                     ...
to provide to a law enforcement agency one or more specimens for the purpose       § 411.1472. DNA Records of Persons Placed on Community Supervision
of creating a DNA record. A law enforcement agency arresting a defendan-t                                 for Certain Offenses ·
described by Subsection (a)(2). immediately after fingerprinting the defendant
and at the same location as the fingerprinting occurs, shall reQuire the defen-      (a) This section applies to a defendant placed on community supervision,
dant to provide one or more specimens for the purpose of creating a DNA            including deferred adjudication community supervision, for an offense listed in
record. After a defendant described by Subsection (a)(3) is convicted or placed    Section 411.1471 (a)(l).
on deferred adjudication, the court shall require the defendant to provide to a
law enforcement agency one or more specimens-for the purpose of creating a           (b) A court that grants deferred adjudication or places a defendant on
DNA record.         ·                                                              community supervision shall at the time of entering the order or making the
                                                                                   placement require the defendant to report to a law enforcement agency to
  (c) A defendant described by Subsection (a)(l) or (3) may at any time
                                                                                   provide one or more specimens for the purpose of creating a DNA record.
voluntarily provide a specimen for the purposes described by Subsection (b).
                                                                                     (c) The director by rule shall require law enforcement agencies taking a
  (d) The director by rule. shall require law enforcement agencies taking a
specimen under this section to preserve the specimen and maintain a record of      specimen under this section to preserve the specimen and maintain a record of
the collection of the specimen. A law enforcement agency taking a specimen         the collection of the specimen. A law enforcement agency taking a specime~
under this section may use any method to take the specimen approved by the         under this section may use any method to take the specimen approved by the
director in the rule adopted under this subsection. The rule adopted by the        director in the rule adopted under this subsection. The rule adopted by the
director must prohibit a law enforcement agency from taking a blood sample         director must prohibit a law enforcement agency from taking a blood sample
for the purpose of creating a DNA record under this section. The agency may        for the purpose of creating a DNA record under this section. The·agency may
either send the specimen to the director or send to the director an analysis of    either send the specimen to the director or send to the director an analysis of
the sample performed at a laboratory chosen by the agency and approved by          the sample performed at a laboratory chosen by the agency and approved by
the director.                                                                      the director.
                                      160                                                                                161
                                                                       -1'\-
                                                    TEXAS DEPARTMENT OF PUBUC SAFETY
                                                    PHYSICAL EVIDENCE SUBMISSION FORM
                                                          PLEASE PRINT OR WRITE LEGIBLY         SEE INSTRUCTIONS ON THE BACK OF THIS FORM
                         IDS                                                         DP$ UBORATDI'lY USE ONL.Y
                                                                                                                                   .;



                                                I ~= ~
                                                                         Lltentr.
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                      71612001
                                                    Flra!:nnl
                                                    Alcahal
                                                                         PhaCo
                                                                         Oulllt. Doc.
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                                                                                            l3M                          48628
                                                      /
                                                                            .
     lnveltiglerr
    (Title. N.amt)     JOEL CASTRO CSS          !J/                             Send Cclpy to   JOEL CAS"m01 CSS
           ~           HIDALGO COUNTY SHE~FF"S DEPART                                   A~      HIDAlGO COUNTY SHERIFF'S DEPART
           Addresa     P. 0. BOX359                                                 Addrela     P. 0. BOX 359
     C1tV. Stl:le      EDINBURG 1 TEXAS          Z1p 78540
                                                                            .     Clly,Stllle   EDINBURG 1 TEXAS                            Zip   78540

 Phone Number                   956-383-811<4                                                          Submltllng AtJent:t        F1e Number
      F.,ctunber

 SUSPECTS         a..t. Flrlf
                                95&-383--1187

                                Middle\            Race Se       DOB
                                                                        I   VICTIMS ~last. Fnt Mlddlel
                                                                                                                     01·13017
                                                                                                                                               RaCe Sex      I
MIRELES GUSTAVO                                     w      M             ROBOUAR          ~JANE                                                   w   F   6J1!




           3                                              REMOVED FROM RIGKT SOCK OF VICTlM AT
                                                          SCENE

           .          HIAR STRANDS                        REMO\IED FROM BODY OF VJCT1M AT SCENE


        5             BLOOD STAIN UFT


       I              BLOOD STAIN UFT                        OUTSIDE PASSENGER DOOR CHEVY P/U                                      TO ITEMS I %2,36
                                                                KANSAS LP UCE 432

       13                                                                                                                        STAINS, HAIRS. COMPARE TO
                                                                                                                             t   .zue
                                                                  FROM BODY OF VICTIM AT AUTOPSY                                 STAINS, HAIRS. COMPARE TO
      '"                                                                                                                     t%2.38
                                                                                                                                 STAINS, HAIRS. COMPARE TO
      15
                                                                                                                             '22.38

      te                                              REI.40VED FROM BODY OF VICTIM AT AUTOPSY                                   STAINS. HAIRS. COMPARE TO
                     WARE"                                                                                                   t%2.30




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                                                                                 ~0-            .
                                                        TEXAS DEPARTMENT OF PUBUC SAFETY
                                                        PHYSICAL EVIDENCE SUBMISSION FORM
                                                               PLEASE PRINT OR WRrrE LEGIBLY                 SEE INSTRliCnONS ON THE BACK OF THIS FORM
                                                                                                DPS UBORA TORY liSE ONLY


                                                   ~·- ~
                                                                                                                                                  -;

            SubmiuJcn 0«1

                  71612001                  I       /
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                                                         Drugs
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                                                         AJcd'rd                  E:l                        l3M 4 8 6 2'8                                             I
  ~IU:JI
 (Tlk.Narne)       JOEL CASTRO CSS            iii
                   HIDALGO COUNTY SHERIFF'S DEPART
                                                                                         S...SC!lpyto          JOa CASlR0 1 CSS
                                                                                                               HIDALGO COUNTY SHERIFF'S DEPART
         Arlrcr                                                                                 AIJ«r:y
        ~          P. 0. BOX 359                                                                A.cilfn!ll     P.O. BOX359
   City, Stille    EOINBURT, TEXAS .               Zip 78540                                Clly, SUI!C        EDINBURG 1 TEXAS               Zip        78540

Phc:nl Number            956-383-811"'                                                                            Submitting AQt«:J File Number
    F• NIA'Tibar         958-383-4187


SUSPECTS lUst. F"nt Middle)                             Raoe    Sa     008
                                                                                I   VICTIMS ll..ad. Flrllt ~
                                                                                                                           01-13077
                                                                                                                                                       Race Sill     _DC)

RELES GUSTAVO                                           w       M                  ROBOUAR MARY JANE                                                   w     F     811911




-----=CAP~rr.~AL~O&nM~M~UR~O~E=R~----~~ ~~-----------~~~~~~~~1----------~~~~---------~-H~I=O~~~~~O~-·----­
                                                          ITEIIS OF 'HYBJC4 EVIDENCE IUBMTTED
                                                                                                                                      Ean Requested
                             ":!...~
..Ahlbll No.                                                                           Origin
!A.,   ~.eli;.)                                                        (loa-. ............ . , ............,                          tc-.!DA..-:.)
       23          HAIR STRANDS .                              INSIDE BLACK PURSE                                        COMPARE TO rrEMS t 23.36


       24          BLACK twroi.E SHORT PHIWPS                  SEAT GMC PAJ TRUCK TX LP .ltV 7110                        TRACES OF BLOOD, SKIN 'nSSUE. HAIR.
                   HEAD Sau:w DRIVER                                                                                     COMPARE TO ITEMS t 23.36

       25         a.EAR AND RED Hot.NCC..E LONG                Dof.SHSOAAD GMC PIU TRUCK TX LP J1V 790                   TRACES OF BLOOD, SKIN nS$UE. HAIR
                  FLATHEAD SCREW DRIVER                                                                                  COMPARE TO ITEMS t 23.36 ·

       2e         BLACK HANDLE STEAl< KNIFE                    FLOORBCWW GMC PIU TRIJCK TX LP JW 710                     TRACES OF BLOOD, SKIN 'nSSUE, HAIR.
                  -nv.MOHnNA•                                                                                            COMPARE TO rtEMS I 23.38

       21         HAIR STRANDS                                 FlOORBCWW GMC PAJ TRUCK TX.LP J1V 790                     COMPARE TO ITEMS t 23,36


       28         HAIR STRANDS                              SEAT GMC PAJ TRUCK TX LP J1V 780                            COMPARE TO JTEMS t 23,3&
                                                                                              .
       28         BLUE IN COLOR SEAT COVER                  SEAT GMC PIU TRIX:K TX LP JW 780                            COMPARE TO ITEMS t 23.3&


       30         PR SPRAY PAJNTED BLACK MILITARY HUECES COUNTY DETC~ CENTER                                            TRACES OF BLOOD. SKIN TISS\JE. t-WR.
                  TYPE BOOTS SIZE 1 t I 55070     INJMTE GUSTAVO MIR£LES PROPERTY                                       COMPARE TO ITEMS t 23.38

    31            GRAY PUU.-OVER POLO TYPE T·               NUECES COUNTY DETENTION CENTER                              TRACES OF BLOOD, SKIN TISSUE, t-WR.
                  SHIRT epREMIRf8 SIZE L                    INMATE GUSTAVO MIRELES PROPERTY                             COM'ARE TO ITEMS I Z3,3e

                                                                                                                        page2 ct3

                                                                                                                                          RECEIVED
                                                                                                                                         '. rr rr o_t\ 1nnt
                                                                                                                                                       _..,..,.
                                    PiNse Include I brief aynapsll Cl' capy ~ the cft8lae repat to asaist the Wlll)ost ·
                                         Submit ., ~ a'ld two c:cpie5 (If I 5Umped ret:a9lll nquiled).                                  LABORATORIES
                                                                                                                                          MCALLEN
                                                                                                                                 -Mi-
                                                                                      TEXAs DEPARTMENT OF PUBUC SAfETY
                                                                                      PHYSICAL EVIDENCE SUBMISSION FORM


                                                                               s s ..   ~NA
                                                                                             PLEASE PRINT OR WRITE LEGIBLY

                                                                                                                             ~
                                                                                                                                                     SE£ INSTRIJCT10HS ON TlfE BACK OF THIS FORM

                                                                                                                                          .'JPISLASORATORYUSEOIIl.'l



~~___s~-~~~~~:~~~~~~~8~~--d·__8___~_··-~_·__l_3_M_·__4_8_·_6_2__8______   I'
       ~
      (Title.Narne)           JOEL CASTRO CSS ~                                                                                   Send~ to              JOEL CASlRO, CSS
             Atptcf           HIDALGO COUNlY SHflJRFF'S DEPART                                                                            ~             HIDALGO COUNlY SHERIFF'S DEPART
            AddresG           P. 0. BOX 359                                                                                               ~             P. 0. BOX 359
        City, SUllO           EDINBURG, TEXAS                                   ZJp 78540                                           City.   Slllto      EDINBURG, TEXAS              Zip   78540

                                          956-lln-811<4
                                          956-383-<4187
                                                                                                                                                                  01-13017

....;S::.:U;:.SP:..:E::::CTS:.:.:.;tl~.::l.Mt.:::::...:..:fni==..::::::Mdd=le:.~..-1_ _ _ _-f.:.Race=~Se:r=-f..--=DO=B___.   VICTI'MS     n.-. Fln:l Mddlel                             Alee Sex      DOE
~M~IR~E::.:LE~S~G~U~S~TA~~~--------------~W~~M~----~ ROBO~MARY~E                                                                                                                           W   F   6/19r'11




------~~~~~~MU~R:D~E~R                               ____              ~I ~~----------DH~~~~~~~oo~1----------~~ ~~--------~~H~ID=~~~~-------
                                                                                          ITbiS OF PHYSICAL EVIDENCE IU8MITTED
   ~No.                                         n.n
                                                .ia;c.Delcrlptlan
                                                       _ _,                                                                      Ortgln                                      E.ln Requetecl
                                                                                                                                                                             c-..,._ ...,
    ""'' .S.*-J                                                                                             rs.--...,_IH                  _..,...·*-'
           32               BWE DENIM JEANS "'PEN THAD"                                      NUECES COUNTY DETEHTION CENTER                                      TRACES OF BlOOD, SKIN 11SSUE, HAIR.
                            WISTAINS SIZE 38X32                                              INIMTE GUSTAVO MIRElES PROPERTY                                     COMPNUJ;. TO ITEJoiS II 23.311

           34               WHilE IN COLOR FTl UNDERWEAR                                     NUECES COIJN1Y DETENTION CENTER                                     TRACES OF BLOOD, SKIN TISSUE, HAIR.
                                                                                             INMATE GUSTAVO MIRELES PROPERTY                                     COMPARE TO rTiMS II %3.36

          35                HAIRSTRAHO                                                       RIGHT PANTS LEG OF BLUE DEHtM JEANS                                 COMPNUJ;. TO rTEMS II 23.31
                                                                                             ~·32

         42A               ORANGE HANDLE SCREWDRIVER,                                        SIE BEDROOM INSIDE lV CONSOLE FM 43 &                               TRACES OF BLOOD. St<JN TISSUE. IWft.
         428               RUSTED DRILL BIT                                                  m. CORPUS CHRJST1                                                   COMPARE TO ITEMS II 23.36

          48               SERATED KITCHEN KNIFE WITH                                        TOP BEDROOM NIE CORNER OF RESIDENCE                                 TRACES OF BLOOD, S1<IN nSSUE. HAIR.
                           BLACK HANOt.E                                                     E OF TOWER ON ELGATO, AJ:.N/0                                       COMPARE TO ITB.CS II 23,35

          22               SEXUAL ASSAULT EVIDENCE                                          REMOVED FROM BODY OF VICTIM AT AUTOPSY SEMINAL STAINS. FOREIGN HAIR. TISSUE.
                           COUEcnONKIT                                                                                             COMPARE TO ALL SUBIIIlTED ITEMS

         36                SUSPECT EVIDENCE COLLEcnON                                       REMOVED FROM BODY OF SUSPECT AT                                      COMPARE TO AU SUBMTTED ITEMS
                          KIT                                                               NVECES COUHTY DETEHnON CENTEA



                                                                                                                                                                                    RECEIVED

                                                                                                                                                                page3d3
                                                                                                                                                                                    JUL 0 5 2001
                                                                                                                                                                                  L.AtsORATORIES
                                                                                                                                                                                      MCALLEN

                                                          P~         lndude 1 brief sync:p~a a CDPY r:llhe ol'alM repcrt to ll!oSisl!hi~Wl~WySi.
                                                                   Submll  an arlginall " two c;gpies (If I stamped ra:zipl il A!QUirld) .


                                    .
                                                            ("'\ Lt   rl        V'1.u..l   1. . . -( \r··   t1.'1.J' . . (   l    l • )     • "\               t 1~   J. ( (t     •7    c-. ~
                           TEXAS DEPARTMENT OF PUBLIC SAFETY
                                           '-/    _;::;}      TEXAS OPS FIELD CRIME LAB ORA TORY /                                      .

                                    1v-0
                                           t;,Y                            P.O.BOX819
                                                                   MCALLEN, TEXAS 78505-0819
                                                                                                                          \"-
                                                                                                                            \ fj
                                                                                                                                        ~                                         •
                                                                                                                                                                                        -..
                                                               Voice 956-984·5600 Fax 956-984-5713                          V                       .                                   •Jt .
                                                  ----------                                                  .......-\. \~~- -~ v-.1'-~                                               "...; ......
                                                                                                                I   V\.          I _                             •      I             COMioiiSSION
 THOiolA.S A. DAVIS, JR.                                              · Dece mber 12 , 2001                   ""v. c}.           "T'Q           l   0) \       v, c+ ·           cou.u~o~ Mc.KuG~
                                                                                                                     ('A. ~ •
        DIRECTOR
     FRANKIE WAU.ER                                                                                                                                                                 c:HAJRioWI
   DAVI~r.t.:E.ATHROH                                                                                                                                                             ROBERT 8. HOLT
     A.SST. DIReCTORS                                                                                                                                                           JAMES 8. FRAHCIS ••
                                                                                                                                                                                  COMMISSIONERS
                Joel Castro
                                                                                                                                                        .: !
                Hidaigo County Sheriffs Office
                Box 3.59
                Edinburg, Texas 78540-0359


                                                                       Agency Case Number                                                                            Offense Date
Laboratory Case Number

                                                                                      0113077                                                                         06/23/01
                  L3M- 48628

Suspect{s)                                                                                 Victim(s)
Mireles, Gustavo                                                                           Robollar, M~ry Jane 0?-19-60
            I
 Offense: Homicide
 County of Offense: Hidalgo (108)

 Evidence s·ubmitted                                   ..
    Refer to results of analysis.
/ )quested Analysis . .           .   .   .               . .                 · ·· .    .
 . Determine the presence of semen, blood foreign hair and any sign.lficarif trice evide'rice. ·compare
                                                                           I



    using DNA analysis~
 ResultS of Analysis
   On July 6, 2001, in person by Joel Castro:
 ITEM                  DESCRIPTION                         ORIGIN                   RESULTS
 2                     Hair strands                        Victim's right buttock - No DNA was recovered from three hairs
                                                                                    tested. Apparent burned tissue wa$ observed.

 3                     Hair strands                        Victim's right sock                    Three hairs were observed. Two hairs were
                        f\l l +(, ~ k_ "'~ c~ fl\A,'f. J,                      Q')\    Vt:c.,.!~vvisually similar to the victim's pubic hair
                                                    ,f     ~ M ~ eM               standard. The hairs were not collected. The
                       .h ~d. Y .~ ~                        ."' ...-~_. ;- .;..1  third hair was recovered for DNA analysis.
                                                                                              )
                       f"'.l-   >   vJ...d           ~    (.A ' ~t·vnvv · ....... The victim cannot be excluded as the
                       ..J.k ~a                     -vA.                         ""r
                                                        .J ~ > ""'~<.contributor of the DNA.· See DNA results. The
                        ·~ J , ~                  ~"'"" f ·N s~ .(:: ~-                    wtJf
                                                                                  suspe~ is excluded as the contributor. -
                   -   Hair strand                         Victim's lbody"' t ·                       Visually similar to victim's head hair standard.
                                                                                                      Apparent tissue tested positive for apparent
                   / : .. -- :·     --~.                                                          .
                                                                                                      blood. No further analysis was done.
                                                                                                      ... ···-- ....... ---·                -    ___ .
                                                                                                                                                                            ..:..------                   .,
  5                     Bloodstain lift                    Outside passenger    The appar(mt bloodstain'was determined to be
                                                           door of Chevy P/U    of human origin. The DNA profile is consistent
                                                           Kansas L. P. LXE 432 with the suspect. See DNA results.
······').
  6                     Bloodstain lift                    Outside passenger    The apparent bloodstain was determined to be
                                                           door of Chevy P/U    of human origin. The DNA profile is consistent
                                                           Kansas L. P. LXE 432 with the suspect. See DNA results.

                                                                      COURTESY- SERVICE • PROTECTION                                                                                                  /
                                                                                                                                  Offense Date
                                                                           Agency Case Number
· Laboratory Case Number                                                                                                             06/23/01
                                                                                0113077
           L3M- 48628
            '                                                                                     RESULTS
·)rEM               DESCRIPTION                           ORIGIN
 13                 Pullover top                          Victim                                 No acid phosphatase, a non-speciflc
                     fJ o ~ ( J               J       ..v ,·'VIe..     ck- k c...~ VV'.          constituent of semen, was detected on the
                     l:l, .>4 "00 f-"f'     0
                                                       'io ~ ~ J..                     .11. (J apparent bloody pullover top. A tape-lift of the
                                     r ,.     1           "" . r\~                  1· '( ~       sfi1rt was done and returned with the Item. If
                       CJ·<'\          .J e W1    ,.        •     '   •~     "'     \\     P I S 1fiber analysis is needed contact this
                                                                                                  laboratory.
                                                                                                   An ap.e_arent bloodstain was determined to be
 14                 Jeans                                  Victim                                  offliJman origin. The DN~e is consistej
                                                                                                   with the~ct. see DNA results. No acid
                                                                                                  j5fi'Osj5flat8se. was detected on the jeans.
                                                                                                   Apparent fecal matter was observed.

                                                         Victim                                    ~ D_l!~s re.~Q.y~!!:2L"-~- ~S.-~il.t_
  15                                              I        ..
                                                  ... ~ .J I! ~            t'"· '   ..-~ -(..
                                                                                                 _jiiQ.Qdstaio· No acfd phosphatase was
                                                                                                    detected. Head hair visually similar to the
                                                                                                    victim's head hair standard was observed.
                                                                                                       No acid phosphatase was detected. Apparer
  16                ·Panty                                  Victim                                     fecal matter was observed .
                ---··--·"'
                .            .....

                    Hair strands
                                     ··-- ... ·-- .. -· -----------...,
                                                            Black purse
                                                                                                                                      th~;:s;,ect's
                                                                                                ,......-Three hairs visually similar to
     23                                                                                                pubic hair standard were recovered. Two of
                                                                                                        the thr~e hairs were DNA tested (Hairs 1 and
                                                                                                        2). The third hair was collected but not testae
 )                                                                                                      (Hair 3). One hair whose origin could not be
                                                                                                        detennined was DNA tested (Hair 4). Two
                                                                                                         hair fragments visually similar to victim's hea·
                                                                                                         hair standard were observed and not
                                                                                                         collected.·
                                                                                                           ...
                                                                                                         The .DNA profiles from Hairs 1 and 4 are
                                                                                                         consistent with the su·spect. See DNA result

                                                                                                "'\,_~-~N~-~~s r e c o v e r e d -
                                                                                                     No blood was detected. No significant trace
     24              Phillips screwdriver                       Seat GMC PIU                         evidence was observed.                 ·
                                                                TX LP. JIV 790
                                                                                                     No blood was detected. No significant trace
                     Flat head                                  Dashboard GMC P/U
     25
                                                                TX LP. JIV 790                       evidenc~ was observed.
                     screwdriver
                                                                                                     No blood was detected. No significant trace
                     Steak knife                                Aoorboard GMC P!U
     26                                                                                              evidence was observed.
                                                                TX L P. JIV 790
                                                                                                     Four hairs visually similar to the suspect's
                      Hair strands                              Floorboard GMC P/U
      27                                                                                             head hair standard were observed. One hai
                                                                TX L P. JIV 790                      was collected. If further analysis is needed
                                                                                                      contact tl:lis laboratory. Six hairs visually
                                                                                                      dissimilar to the vlctim and suspect's head E
                                                                                                      pubic hair standards were observed and no
                                                                                                      collected. Apparent animal hairs were
                                                                                                      observed and not collected. Plant-like
 J                                                                                                    substance was observed and not collected.



                                                                      P~n=        2,.r.f   5
                                                                                                                              12/12/01
                                                                                                                                  Offense Date
                                                                           Agency Case Number
· Laboratory Case Number                                                                                                             06/23/01
                                                                                0113077
           L3M- 48628
            '                                                                                     RESULTS
·)rEM               DESCRIPTION                           ORIGIN
 13                 Pullover top                          Victim                                 No acid phosphatase, a non-speciflc
                     fJ o ~ ( J               J       ..v ,·'VIe..     ck- k c...~ VV'.          constituent of semen, was detected on the
                     l:l, .>4 "00 f-"f'     0
                                                       'io ~ ~ J..                     .11. (J apparent bloody pullover top. A tape-lift of the
                                     r ,.     1           "" . r\~                  1· '( ~       sfi1rt was done and returned with the Item. If
                       CJ·<'\          .J e W1    ,.        •     '   •~     "'     \\     P I S 1fiber analysis is needed contact this
                                                                                                  laboratory.
                                                                                                   An ap.e_arent bloodstain was determined to be
 14                 Jeans                                  Victim                                  offliJman origin. The DN~e is consistej
                                                                                                   with the~ct. see DNA results. No acid
                                                                                                  j5fi'Osj5flat8se. was detected on the jeans.
                                                                                                   Apparent fecal matter was observed.

                                                         Victim                                    ~ D_l!~s re.~Q.y~!!:2L"-~- ~S.-~il.t_
  15                                              I        ..
                                                  ... ~ .J I! ~            t'"· '   ..-~ -(..
                                                                                                 _jiiQ.Qdstaio· No acfd phosphatase was
                                                                                                    detected. Head hair visually similar to the
                                                                                                    victim's head hair standard was observed.
                                                                                                       No acid phosphatase was detected. Apparer
  16                ·Panty                                  Victim                                     fecal matter was observed .
                ---··--·"'
                .            .....

                    Hair strands
                                     ··-- ... ·-- .. -· -----------...,
                                                            Black purse
                                                                                                                                      th~;:s;,ect's
                                                                                                ,......-Three hairs visually similar to
     23                                                                                                pubic hair standard were recovered. Two of
                                                                                                        the thr~e hairs were DNA tested (Hairs 1 and
                                                                                                        2). The third hair was collected but not testae
 )                                                                                                      (Hair 3). One hair whose origin could not be
                                                                                                        detennined was DNA tested (Hair 4). Two
                                                                                                         hair fragments visually similar to victim's hea·
                                                                                                         hair standard were observed and not
                                                                                                         collected.·
                                                                                                           ...
                                                                                                         The .DNA profiles from Hairs 1 and 4 are
                                                                                                         consistent with the su·spect. See DNA result

                                                                                                "'\,_~-~N~-~~s r e c o v e r e d -
                                                                                                     No blood was detected. No significant trace
     24              Phillips screwdriver                       Seat GMC PIU                         evidence was observed.                 ·
                                                                TX LP. JIV 790
                                                                                                     No blood was detected. No significant trace
                     Flat head                                  Dashboard GMC P/U
     25
                                                                TX LP. JIV 790                       evidenc~ was observed.
                     screwdriver
                                                                                                     No blood was detected. No significant trace
                     Steak knife                                Aoorboard GMC P!U
     26                                                                                              evidence was observed.
                                                                TX L P. JIV 790
                                                                                                     Four hairs visually similar to the suspect's
                      Hair strands                              Floorboard GMC P/U
      27                                                                                             head hair standard were observed. One hai
                                                                TX L P. JIV 790                      was collected. If further analysis is needed
                                                                                                      contact tl:lis laboratory. Six hairs visually
                                                                                                      dissimilar to the vlctim and suspect's head E
                                                                                                      pubic hair standards were observed and no
                                                                                                      collected. Apparent animal hairs were
                                                                                                      observed and not collected. Plant-like
 J                                                                                                    substance was observed and not collected.



                                                                      P~n=        2,.r.f   5
                                                                                                                              12/12/01
  •

       Laboratory C~se Number                                     /\gene~' Cn~c Number                                 Ottense Date
                       .
              L3M- 48628                                                    0113077                                      06/23/01

       )
       ITEM                DESCRIPTION              ORIGIN                            RESULTS
       228                 Two vaginal swabs        Victim                            No semen was detected on the apparent
                                                                                      bloody vaginal swab.
       22C    ..           Vaginal smear            Victim                            No spermatozoa, a semen-specific
                   .
                                                                                      constituent, were observed .
       220                 Two rectal swabs         Victim                            No semen was detected.
       22E                 Rectal smear            Victim                             No spermatozoa were observed.
       22F                 Two oral swabs          Victim                             No semen was detected on the apparent
                                                                                      bloody oral swabs .
                                                                                                     .
       22G                 Oral smear              Victim                             No spermatozoa were observed on the
                                                                                      apparent bloody oral smear.
       22H                 Head hair               Victim                             Used as standard.
       221                 Head hair combing      , Victim                            No apparent foreign hair was recovered.
      . 22J                Pubic hair              Victim                             Used as standard.
      22K'                 Pubic hair combing      Victim                         ,No apparent foreign hair was recovered. Red
                                                                                   apparent fibers were observed.
      22L                  Fingernail scrapings    Victim                           Apparent blood was detected and was
 t'   ').                                                                           determined to be of human origin. The victim
                                                                                    cannot be excluded as the· DNA contributor.
                                                                                    See DNA results.. The sus~ect Is excluded as
                                                                                    the contrl    r. Halrs_y)_sua ly similar to the
                                                                                   'VJc m's head hair standard were observea anc
                                                                                  . norCollecie;;C-·:-··-· --·- ........ ~ ...... .

      36                   Evidence collection     Suspect
                           kit
      36A                  Purple top blood        Suspect                            Used as known standard.
                           tube
      368                  Yellow top blood        Suspect                            No analysis done.
                           tube
                                                              I

      36C                  Head hairs              Suspect                        Used as standard.
      360                  Pubic hairs             Suspect                        Used as standard.·
      DNA Results:
    Three hairs from the victim's right buttock (#2); one hair from the victim's right sock (#3); two bloodstains
    outside passenger door of Chevy P/U, Kansas L P. LXE 432 (#5), (#6); a bloodstain from the victim's jean
    (#14); stain from the victim's bra (#15); blood from the victim's fingernail scrapings (#22L); three hairs from
    the black purse (#23); one hair from the floorboard GMC P/U TX L P. JIV 790 (#28); three bloodstains fro
   the seat cover GMC PIU TX LP. JIV (#29); hair from the jeans (#35); seat cover GMC P/U, TX L P. JIV
. 790; suspect's pullover shirt (#31), jeans (#32); stains from suspect's boots {#30A), (#306); victim's blood
. )#22A), and suspect's blood (#36A) were subjected to STR PCR DNA analysis and the following loci were
   characterized: D3S1358, WVA, FGA. Amelogenin,.08S1179, D21S11, 018S51, 055818,0135317 and
    075820. •                                     .



                                                      ' " ' - - - A -Z f:                                 1 ?/1 ?ln1
     Laboratory Ca~e Number                          Agency Case Number                           Offense Date
           •
            L3M· 48628
               I   o   t
                                                          0113077                                   06/23/01

  , )he DNA profiles from the two bloodstains outside the door of Chevy P/U (#S':and #6), bloodstain from the
     victim's jeans {#14) and one hair from the black purse (#23 hair 1), are consistent with the suspect, Gustavo
     Mireles. Gustavo Mireles cannot be excluded as the contributor. The probabllity of selecting an unrelated
     person at random who could be the source of this DNA profile is approximately 1 In 1,168, 000,000,000 for
     Caucasians, 1 in 301,700,000,000,000 for Blacks and 1 in) 47,300,000,000 for Hispanics. The
     appr~ximate world population is 6,000,000,000.             -
    The DNA profile from a second hair from the black purse (item #23 hair 4) is consistent with the DNA profile
    of the suspect, Gustavo Mireles. Gustavo Mireles cannot-be excluded as the contributor at the loci
    Amelogenin, 0851179, D21 S11, and D7S820. At these loci the probability of selecting an \.mrelated person
    at random who co~ld be the source of this DNA profile is approximately 1 -In 34,230 for Caucasians, 1 in
      e
    1 1,900 for Blacks and 1 in 24,180 for Hispanics. The approximate world population is 6,000,000,000.
    The DNA profiles obtained from the hair from the victim's sock {113) and blood from the victim's fingernail
    scrapings (#22L) are consistent with the DNA profile of the victim, Mary Jane Robollar. Mary Jane Robollar
    cannot be excluded as the contributor at the loci Amelogenin and 0851179. At these loci the probability of
    selecting an unrelated person at random who could be the source of thls DNA profile is approximately 1 in
    28 for Caucasians, 1 in 9 for Blacks and 1 in 14 for Hispanics. The approximate world population Is         .
    6,000,000,000. The suspect is excluded as the contributor of the hair from the victim's sock and blood from
    the victim's fingernail scrapings.             ·                                _
   ·No bNA profile foreign to the suspect was obtained from the suspect's shirt (#31) or jeans {#.32).
    No DNA profile was obtained from Items 112, #15, #23 hair 2, #28, #29, 1130A, #308 or-1135 .
. . ) The evidence _is being retained. Please n:'ake arrangements to pick it up as soon as possible •


.Ala. do~                                        .·             '                              .
   Orlando Ochoa
   Criminalist
   Texas DPS McAllen Laboratory




                                                 ~    t   ...
                                                                                       12/12/01
f
    ~UHT 4 ·- TV   Harllngen, 1X: UOUOlea U~A l=.ao UlWa llnpaci .i ~                                        &   "'6"' ...........

                                                            --s--o
{     testing. What's to say that wasn't    affected?•]
      OPS meantime, maintains that they did not try to conceal the lab dosure. They have reviewed 40
      cases so far, and have found no evidence of faulty testing. They must still scrutinize about 187
      more.

      Alex Madrigal, the lab chief prlmartly r:esponslble for DNA testing has since been suspended with
      pay.




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                      All content C Copyrtght 2000 • 2004 WortdNow and KGBT. All Rights Reserved.
                   For more Information on this lite, plene read our Prtvacy f?o!lcy and Tenns or Service.




                                                                                                                                     •




    http://www.team4news.com/globallstory.up?s-1716313&CllentType-Printable                                          3/17/04
Review: 40 crime lab cases accurate                                                Page 1 oR

                                                    I



Publication: Freedom- The Monitor; Date: Mar 17, 2004; Section: Front Page; Page:-1 ~'l''*,


Review: 40 crime lab cases accurate
By SARAH OVASKA and RYAN GABRIELSON Monitor Staff Writers sovaska@themonitor.com
rgabrielson@themonltor .com
                                                                              ..


 McALLEN a€" A McAllen-based DNA crime lab found no problems
in a re-examination of 40 cases despite inconsistencies in
maintaining police evidence that caused the laba€™s closure for
three months last summer.

 The Texas Department of Public Safety Criminal Laboratory,
           I                  .

located in McAllen, reviewed 40 DNA samples and found no
erroneous results or mistakes. However, a much larger review is
currently under way, with 187 DNA samples scheduled for re-
examination and retesting, according to a DPS representative.

 The lab analyzes DNA evidence, found in blood, saliva and                           -~,
semen, for a number of police agencies in the area.

 The McAllen crime lab was shut down from June 16 to Sept. 23,
2003, with no notice given to local prosecutors, police agencies c
defense attorneys. The evidence submitted during that time was
disp·ersed throughout the agenciesa€™ other crime labs. After
staff was retrained this summer, the lab is back up and running, ·
according to a press release from DPS.

 "We dona€™t know exactly what the issue was with the lab,"
said Victor Rodriguez, the McAllen police chief. "Wea€™ve not
seen any unusual changes in the response time ...
                                                        '
 With response times up to six months for some tests, Rodrigue:
said his officers and investigators continued to drop off evidence
at the crime lab across the street from the police station, and
were unaware that the laba€™s operations had been shut down
                                                                                                                           0
                           Review: 40 crime lab cases accurate                                                Page 2 of4


                       i

                            Rodriguez said his department might now bring DNA evidence to
                  j        a private company.
                  <I
                  ·j        The DPS shut dpwn the lab after ,a June 3 internal audit which
                   i
                   !

                           found serious procedural flaws. The flaws included sexuakassault
                           kits which were not adequately sealed, chemical reagents for
                           DNA testing that were not labeled or had expired and the reuse
                           of chemicals in DNA testing, according to an investigation
                           published Monday by the Houston Chronicle.
        k,    J             The suspended head of the DNA lab, Alejandro "Alex" Madrigal,
              i
              l            told the Chronicle that approximately 300 cases were under
        ;l   ·j            review fpr possible mishandling of evidence.
        . I
        ··. 1"
             I


             !
             !
                           The Monitor was unable to reach Madrigal for this article.

                            Some defense attorneys said they were concerned with the
                           information, but said· very few cases rest solely on DNA evidence
                                                                 I




                            "It (DNA) doesna€™t come up that often," said Jaime Aleman,
                           criminal defense attorney with a number of capital murder cases
                           "Ninety percent of the cases still go back to the old-fashioned
                           evidence" like eyewitnesses or circumstantial evidence.

                            Aleman said the problems at the DNA lab may highlight for the
                           public what those who work with criminal defendants already
                           know.

                            "The default mode is to believe a police officer," Aleman said.
    i
    I
                           "We in our profession know that mistakes are made."
    i
l
1
                                                                     .,

                           Meanwhile, other defense attorneys said they doubted any cas
.{

I
 1                         would be thrown out based on' the DNA laba€™s problems.
1
J
                            "In the 300 cases (being reevaluated), not all 300 were innoce
l
!


                                                                          •   ..... I •   'VT :   1- • T ""   1 () /? 11
Review:   40 crime lab cases accurate

drop the charges against his client based on the questions
surrounding the· DNA lab. Juan Tostado is accused of killing Lee
Roy Rosales in 1993. Tostado, a convicted drug smuggler, was
the last person seen with Rosales, according to Monitor archives
Rosalesa€™ body was found in a San Juan canal.

 Hector Villarreal, an Edinburg attorney, was retained a week
ago to defend Tostado, whose trial is scheduled for March 29.

 "Anything having to do with DPS and the Texas Rangers is
suspect," Villarreal said. "We need a federal investigation of Dl
and the Rangers."

 However, the DNA evidence in Tostadoa€™s case was analyze
in 1997 by Dallas-based Gene-Screen DNA labs, said Sgt. IsraE
Pacheco, the Texas Ranger who investigated the case.

 "He (Villarreal) needs to become more familiar with his
clienta€™s case before he starts criticizing the evidence," Pachl
said.                                                        j




 Pacheco added that the audit results on the DNA lab are not t
big a deal.

 "Thata€™s the point of an audit, invariably youa€™re always
going to find some shortcomings," Pacheco said. "When the du
settles, the results are going to be the same."

 a€"a€"a€"Sarah Ovaska covers courts anq general assignmen
for The Monitor. You can reach her at (956) 683-4445 .
                                                .
 a€"a€'~a€"RyanGabrielson covers Pharr, San Juan, Alamo anc
general assignments for The Monitor. You can reach him at (9:
683-4462.                             .
     Four to be questioned about McAllen DNA lab                                                 Page 1 of 1


     Publication: Freedom· The Monitor; Date: Apr 22, 2004; Section: Valley & State Continued; Page: 13     tP
                                                                                                          Adt..Paoe<·




     Four to be questioned about McAllen DNA lab
     By DANIEL PERRY Monitor Staff Writer dperry@themonitor.com




      AUSTIN a€" Four subpoenaed Texas Department of Public Safety employees
     in McAllen must give depositions regarding the citya€™s troubled
     DNA criminal laboratory.

      The employees, whose names were unavailable late Wednesday afternoon,
     will appear at a future meeting of the House Committee on General
     Investigating in Austin.

      "There were some allegations made that the lab in the (Rio Grande) Valley
     in part was having problems, but that is all I can tell you right now," said
     Rep. Terry Keel, R-Austin, a committee member.

     The committee met Tuesday and heard from two DPS lab employees in a
     private session.                                         ~,-,


      The laboratory was closed from June 16, 2003, to Sept. 23, 2003, but no
     law enforcement agencies, defense attorneys or prosecutors were notified.,
     The closing stemmed from a departmental audit that found problems with
     how chemicals for DNA testing and sexual assault kits were handled.

      Forty cases were re-examined by DPS earlier this year and found not to
     have any problems. At least 150 cases were still being revisited, according
     to DPS information.

     a€"a€"a€"Daniel Perry covers McAllen, Hidalgo and general

     assignments for The Monitor. You can reach him at (956)

     683-4454.

i
J.
i
I
l
1i
l
i

                                                                                                 1 on 1 no 1 1
  HPD qlme lab
  Narda u, 2001, J2rS4PM
  DPS secretly shuttered DNA ~ab                                                                           .•
  State rep troubled by lack of transpareney during review




  For more thin three months last year, the Texas
  Department t4 Public Sataty, wflldl oversees the
  ac:credltatlon daD public DNA labs In the state. Quietly shut down the DNA division of Its    own
  regional crime lab In McAllen.
  Durin; that time, the DPS began a review of petflaps as many as 300 c:rlmlnal cases but diose
  not to nodly most of the prosecutors or poUc:e, and none of the defendants or defense attorneys,
                                   .
  Involved In those ca.s., the HoustDn OU'Dnlde has leamed•
  News of the state agenc.y's ongoing scMtny of Its own lab, and Its decision to keep QUiet about
  the probe, dlstU'rtled a state lawntalcer Who last year sponsored legiSiatSon regulating public DNA
  labotatortes.
  "'t maJces you wonder If' they are capable of running tt· and whether or not tfley're glvff19 us   run
  lnfarmatton,• said Rep. ICaYin Belley, D-HoustDn.
  In ~ to the doalnt of DNA labs In Houston and fort Wortb within months of each other
  last year, Baney, the c:halnnen of the House Committee on General Investigating, sponsored a .
  law requlrlng that aD public DNA labs In the state be acaedlted by Septambel 2005.
 ·'The law also gives the DPS· responslbiUty for overseeing that PfOC8SL But now a frustrated Bailey
  wande.s If the agency Is UP to the taste.
  "We're going to have to take a hard took at DPS,• he said. "' don't ~cnow·lf they're not doing their
  job property or they're trying to tilde rnrormatton. It goes bade to the old Issue that people's liveS
  era at slake and no one seems to c:ant.•
  The McAllen DNA lab was~ dosed after an Internal performance audit exposed a
  number of problems. The lbJif was retniJned during the shutdown, but the had of the lab has
  been suspended With pay because the lab's performance did not. Improve aftelward, a DPS
  spolcesperson Ald.
  But Alejandro •AJex" Madrigal, who was In c:harva of the McAllen DNA lab until his Feb. 24
  suspension, sars· he never received any retraining and believes he was suspended beawse he
  contested many rl the findings of the DPS team that Inspected his lab.
  Madrlgal,.a 14-year Yet:eran of the lab, says he expects to be ftted soon. His sftultfon could atrect
  1 murder b111 sdleduled to begin next week In Hidalgo Caunty, one of the South Texas counties
  served by the McAllen DPS crtme lab.
  Statawlde DPS crtma lab Chief Ron Urbanovsky CDulcl not be ...-ched for comment:.
  The McAllen DNA lab was shuttared from June 16 to Sept. 26. DPS auditors cited nurner'QUS
  problems that led to the closure:
  • Sexual assault kits awaltlno analysis were not property sealed.
  • Chemical reagents used In DNA tests were not property labeled and one had expired.
  • The sensitMtY of the lnstr'lllllent used tD determine DNA praftles was not established befOre
  doing casework on evidence.
  • A chemical In I DNA test ldt used to assign tile Identity of genetic marlcets In case samples was ·
  reused In violation of staftdarct operating procedures.
                                                                                                                .
  • Samplel that pve no DNA proftles were not documented;
  • 'Tlle cllsJ)OSit!On of evidence was not property reported.
 The OWonfda obtained a ccpy of the McAllen report. dated July 23, 2003, after requesting copies
 of aD DPS lab audits pe1 fa mad last year.
 However, the McAllen report was not InclUded In the original group of documents sent to the
 ChroniCle. Asked about the omission, DPS senior assistant general c:ounsef Pamela SmJtJt Slid she
 was not sure whether the report had been completed.
. The stat!! agency did not provide the Chronlde with a c0py of the McAllen audit until the
  newspaper's atmmey, Joseph I.Jirsan, threatened tD fila 1 a:nnplalnt w1ttt the Texas Attxmey
  General's O!fice.                                                                            ·
 1n an Interview at his attorney's offlc% last weet. the suspended lab dllef, Madrigal,
                                                                                                                                   ·.----:~"!"::~*~*~~1

       DPS secretly shuttered DNA:                     I Chron.com ·Houston Chronicle                                                 Pagefor3

        edcnowledged tile problems reported by the CPS audltots, but did not agree on their severity. He
        also maintained that. after most audits, CPS lab workers are given a d\anc:e tD correct tJ\e flaws.
        ~ example, the temperature In the refrloeralm" (where rape kits are SIDred) Is 40 degrees.•                        .··:"
        Madrigal said. -sometimes a seat becOmes br1Uie and brealcs off. We go bact 111d reseal tJ\em.
        USU&Dy, the auditorS Just do 1  raw
                                          random chedcs. Tills t1me they were detl!nnlned tD find     ·
                                                                                                                            ..:.
        something because they emptied the refrfgerator.•

        A DPS analyst not bMIIved ·1n the audit Slid tbat. WhUe most of the problems cited by the
        ludltDrs 111"1 not crftkal, the tallunt of McAllen analysts tD know the sensltJ'IIty of the Instrument
        used tD deblrmlne DNA praflles awfd haw lad tD faulty test results.                                        .• ·.
        "'f you don't know the sensitivity d the Instrument you're using, then you're just guessing
        (about the resultS),• said the DNA analyst. who spoke tD the Olronlde on the condition ot
        anonymity.
        However, Madrtgal said the 1ntama1 audit did not consider the fact tflat the McAllen lab was using
        - and had been giVen permission tD use - an older pmtocDI than the one the agency currently
        uses with regard tD the Instrument.                                                        ··

        '"ThlS Is not 1 valid (audit) llndlng bec:ause we went .under the old SOP (standard operating
        procedure),• safd MadltQal. "''bey wttre bylng tD force us to use the new SOP, but • were .
        grandtatheted because our Instruments were (old).•
        Madrigal alSo paints out that  irom1,999 thravgh 2002 his per1onnaftce evaluatlolis noted      tMi his
        lcnowfedge of h~ Job a:ceedftll the stiUidenls of the department. /

        If, as Madrigal assumes, lie Is fired soon, that a:~~~ld pose prdllems  ror
                                                                                 prosecutDrs In a Hidalgo
        County murder Cllll! set for. trfal next week. Juan Tosasdo, a convicted dluo dealer, Is charged
        with the 1993 slaying d   L.erar ~ ·
        Aa:Drdlng tD Assistant Dlstrkt Attorney William Mc:Ptlerson, DNA analysis of the Ylctlm's blOod
        found In the susPeCt's house and car wiD play a large role In the prosecutton, although It wiD not
        be Md'herlan's only evidence.
        Much of the DNA evlderic:e In the case was processed by MadttgaL Howevei', until ~My were
        cantaclled by the Omlnlde, neither Mc:Phelson nor hiS bOss, Dlstrkt .At1:DrneV Rene Guerra, knew
        about the closure of the McAllen lab, the review of evidence analyzed there or Madr1gal's
        suspension.
        "''ve not heard tflat and I would want tD know about that,• McPhtnan Said. •Aftd, apparently
        (beCause of) What you're brtngJno tD my auentton, ·rm going tD t1eve tD call tt1e head {of the lab)
        OYCr ttlere ·- (beclnise) we weien't natffted.•  .
        DPS spolceswoman Tela Mange Slid that durtng ttle tbNe-marittl clo!An, wortt that normally
        would have been handled by the McADen DNA lab wei sent tD other DPS labs around the state.
        Madrigal says that he and .ottler lab woricers ~-tDid tD tell Jaw enfon:ement offidals that the
·...    wor1e was being dlvertl!ld tD other labs because or a bacldOiD at the Mc'AIIen lab, not because It was
        dOSed.
       Adclmonafly, When nrst contadl!d a11out the McAllen slbJatlon, Mange said she had understDod
       that the audit anc:tleb Closure had resulted In the review of only about 100 cases. However, when
       tDtd ot Madrl;al's estimate.. that about 300 had been sc:riltSnlzed, Mange adci\owledged that he
       CIOUid be correct.
       ~ey may be going bade 1116 nMi!wlng eddlltonal cases a pa:t of the lntemallnVestlgatton, •
       she said.
       Mange also conf,nned that the DPS did not notify most law enfomlment officials who do business
       Wltlr the McAIJen lab about the problemS tt1ere.
       "' think (we) may have contacted one of ttle prosecutors, but none ot lhe things that we have
       found would change or affect the out=ne of any cases,• she Sllld.
       But aa:ordlng tD the Immediate past president of the Harris Caunty Criminal Defense Lawyers
       Association. the DPS had a duty tD notify everyone lnvalved witMIIe cases.                ·
       '"1lley'Ye GOt a Cllt15tltuUOnaJ duty tD dlsdose ttuit lntotmatlon CtD the ctefenclant),• said HoustDn
       attorney Troy MdCinney. •Anyone. who had a case In the betl:h that they went reviewing, anyone
       who had an ongOing case, was constftulklnally enUtfed to know INt.•
       Jndeed, one loc:8l detecttve, Who asbd nOt tD be ldentlfted, Aid lew tflou:ement officials also
       would haW wanted tD be Informed abOut the situation.•
       "Jtts Jllce asfdng, If 1 had cancer, would I want tD knOw aboUt It, • said the law offlcer. • ot course I
       would, so I could do something about it.•


       VOICD 011110UA081
        Readers are solely responsible far the mntent of the comments they post hen!. .Comments are
       .subject to the sb'a terms and c::ondltlonl of use and do not neceaarlly reftect the optnlon or
       8PJ"'Vaa of ttle HoustDn Oltonfde.
NCADP: National Coalition to Abolish the Death Penalty                                                                                           Page 1 o



                                                                            /




                                                                                        ....
                               NIWI MIADLINI

                               ~S:       Oii'S SK.~~y CLOS!D C~A t...\3- S!Z..ATOR ~OU!l£• SY LACC< M TIUt<dS<iJAi:tEHCY


                               MARCH 15.. 2C04




                                                                                                                                 -,


                               1awma11et 'llflo!all,..,
                               .:.,... oliN stafll agency'S 019*19 SCNtlny d i1l own lab, and ils cfedsbt to lleep QUW iltlcd the proe., dislLwtled a Gil
                                                        spDJ-ed leglillalian regulllllng publll: DNA labaaiDfes.
                               "1t mPI8s you wa*f If they are capatlle d nn*lg I and wfllrtller 01 IICII tlloly're gMng u.IUik1bmafbt,• said Rep. Kevil
                               Bay, D-HauiiDt.
  [   Jain OUr l-tMII List )   In niSpllll8e 1D IN cta.n d DNA lalla k1 Hausbl and Fort Worth willlln rnantt. o1 acta ot1W last year, Baiay, IN
                               d\Umlln oliN Houle Comnillee on General ~lil~g. sponiiGnld a law recpnng tNI al pubic DNA labs In the lltiltll
                               be aa:redillld "'Septanber  2005.
                               1lle law abo glwal the CPS respallibility far~ INt ptOC8IL But now a frustratad                 ~ wenden If 1M ag~~~ey II
                               up to lhetasiL                            /                     .

                               "Wffre Pig to !lave to taM I hard took at CPS,• he said. , clon1 la1GW If lhey're nat dcint their job pn:lpeffr 01 lfleyre trylr
                               to hide lnlbrmalion. 11 gaee badl to IN old luueltlat people's lives - at stake and no one -..tD ClfW.•

                               ·Tile McAllen DNA laiiW811 leilipOi&il'f c:laeed alliW anlntllmal pertaimaaiCI audll upoaed a nuiftl)ar o1 prob...,._ The s11111
                                waal'lllnlined during 1118 shu1dowll, but die IIUd d die lab Ills bea1 suspended wilh paJ bec.ause the lab'a P8i IDIITIIIICI d
                               not lll1pla¥e aftrM:.Id. a CPS~ said.
                               Bul Alejandla "NU' Madrigal, who was k1 dlarge ollfle McAllen DNA lab untll'lll FeD. 24         -pension.
                                                                                                                                    says h e " -
                               received my retr.lillrlg and believes he was suspended because he c:anlllsCed many d die llndk1p of 1M CPS team 1t1at
                               lnspKfed Ilia lab.

                                Madrigal, a t4-,..- w111ran althe lab, says I'll apecta ID lllllnld soon. H'- situdon a:uld atr.ct a munfer trta1 sdleduled
                                to bllgD nat weellln Hidalgo Cauntr, one al 1M South Taus counties UM!Id bJ die McAllen DPS crtmelab. ·
                                Statawlde CPS Clime lab c:tlilf Ran UrtlancMky cculd IICIIIII readied far camment.

                                The McAllen DNA lab waa sllullilred l'ron'l J\irle 18 to Sept. 28. DPS auditors cited numetOUa ~ 1t1at led to the
                                ctosur.:                                                                         -                   ..

                                7 Sauat assaualdtl         awa-.   ~ W..nalpmpertr _.....

                                7 Chemlc:al re89ents used In DNA testa were not propefly labeled and one had expired.

                                7 The sensaMty olltle lnstrurnel'll used ID determine DNA profiles wu not establtsl'led before doing caS8WOftc on ewidena

                                1 A dlemtcalln a DNA last lei used to assign ltle Identity d genetic ma.brs In case 5a1111les wu reused In Wlladan of
                                standard ~ pniCII!IduniL                                                  .

                                7   Sam!:lfa 1Nt gave no DNA pralln _.nat~
                                7 'Ole hii    II   11 a1   ewtdenc:e,.. nat ~ ,..,orted.
                                Tile~ ol:ltaned               a f%lflf d fie McMBn ~ dalwl ~ 23, 2CIJS, aiW ~ Cllplel ol all OPS lac. -.db
                                ...... II ted l:all .,...

                                How-.     IN r.tcA11e11 tep)ti-I'IOt Included In ltle oriQlNI ;roup d documents sanl 1D 1f11 Olronldl. AIJc*' aooutltte
                                omlsslon, CPS senlot ,....,... gemnf ~ Pan'llla Smdfl said slle wu nat !lUte *Nd!er the report had ~
                                ccmpllled.                                                                                 .

                                Tlle state agency did not pnMde It! e. Olronlde wilt! a c:cpy at IN Mc:.ADen audit tinllltle n~pe/1 attnmey, Joseph
                                ~. trvealllned 1D ftle a~ witt! tN Tilsaa A!tllm~                Genelal'l Olflce.

                                In an lnteM- a1 his l1!0n'ley's ot11ea last week, ltle suspended laO dllef, Madrigal, adu1owledged lfle ~ repor1ed I
                                llle DPS Mitiori. but did rd 09" on tnelr sewrity. He also maintained lflal. aft• most audits. OPS lab .....ooun are give
                                a c:Nnce to CllfT'ed tne .._._
                                 "Fot example, ltle ~II IN refrigemcr (wherel'3fjl kits -~)II .oiO ~," Madrigal uld. "SooMtlmd I
                                 ,..,... becllrNs bl1ll!e -s breaks oil. We go bad& and ,_.. tnern. ~. 1t1e audiiD's )usa do a r- random ctledla. This
                                 !:me ,_.,   _..del.,._,       D 1n:l _, .MNIIQ tleaUse tn~ M'pSed ltle ~ •                  .
--·


NCADP: National Coalition to Abolish the Death Penalty                                                                                            Page 1. ot"



                        A CPS analyst nd lrM!hed 1ft ltle audl said 1t1:1t. while meal oliN problems cited lly ltle audillars al8 nol aillcal, 1t11 ,._,,
                        ,__
                        a1 McADen analysts liD know UIW sensill'tity olltle lnsiNnenl
                                                                                   .
                                                                                      used to dellnnlne DNA prol\les CCIIIlct r.a--eled 10 taulty test

                                                                                                                                         ..
                        ,fyou dcn1 mow ltl1 sensiiMty olltll instNrnent you're usJnt, ltlen you're Just gu~SU!g (abau& tl'le results).• said ltle DNA
                        ~ ..t1o spoke 10 ltle OltoNcle en 1M CllfiCiillaft of ~-                     ·

                        ~.             Madl!gal said ltl1 ~ audl cOd nal ~ ltle.f'ld ltl3tltll McAIIIft lab WM u:P1g- and had beecl gheft
                        ~ 1D 1.1M -lll cldar pni!Delllltlan       1f'!l 011111tle agency QIII'Widr UM1 widl reganiiD IN lr'l8lnlrnri.
                        "This Is noll valid (a«<dii) ftndlng blc:lt.lle  we..,.
                                                                          und• IN old SOP (standlnl opetadng j)I'OCIICiure).• said Madrigal
                        "'Thtlf --•trtilt liD far'CII us 10 11M INn- SOP, but-...,..,.~ because 0111 ir\slrumentlt.,... (old)."

                        ~adrip alao pcinll oult1311h:lm ' ' " flrough %C02 his~~ notBd tllat his~· ol )Iii job
                        ~ 111e tltilndMa oiiM dep;8tloelt.

                         If, aa ,...,., ~ he Is hd seen. ltllll Clalld pose prcbllrrla hliJ' PftiSICUIDIS 1ft • Hidalgo C4unty tnt.ltd• case set tar
                         trtaJ ftllt'IIIIIIL. .luM TOII:ildct, I CICin'llded dNg du*,ls dlarged with ltle 199:1 slaying ol Leftly Rasail&
                         ~ ID Asllltd Dlstrtd Altrltrtf/t William Mc:flhll !Oil, DNA analysil olltle vfr:ln's bklad ibUftd 1ft Ill ~ llcus4
                         and C8f wil plllf I~ lVIII lll'lltw ~ allhouaft I wil nat be Mc:Aielscn's oNVI'IIdenc&

                         Much oldie DNA l'fldence In IN caM was proc:esucl by Madrigal. Howftlr, untlltltlf .,..,. oontac:t.d 111 )tie Clllonld8,
                         nlittl• Mc:PtllnCII nor his boa, DlstrtctAI1iomtlf Rene Guln'a. Jrn• aa..ltle dolure ollhe Mc:AIIeft laat, die lftilw ol
                         IWIMCI ~ dMte «Madrigal's .,..,_,..._

                         ~ naa ttant~N~nl WOIIId ...,. ... ~maw about that.• McPt~~t~on said. "And. ~- (tMoQuae ol)
                         ~ ta ~ dlntlon, nn ooilf 111 flaw 1111 cal the lle8d (ollhl lab) owr !here -· (blcausa)
                                                                                                                          )011.,.
                                                                                                                    nallllld.•      we_, '*"•
                            OPS spolleswomaft Tela M-.ge aid tllat dumg the s.momtl dalunt, 'IIIOik lhllt1'101111dy would have bean handled 111 1M
                            McAIJin DNA Ia wa seniiD oltW DPS laa. araund ltle stat..                         ·
                            M:idrtg;t says tfllll he and Olflet 1111 wakers .,...liold to td law llllb'8t•lt olftdU tflat the wartcwu being diverted ID
                            ot11r 1a1111 blc8lllll ol a badrlat atlhe akAII.n lalt, na1 bKaiM i l - ~

                            ~• .,.... ftnt contllc:tN about the Mc:Men silua1loft, , . . . . . . she had undwstood that the audit_, lab~
                            had,_.., In 1M rftiiW olon~V about 100--. However, wt.t told al Mldrfgars esllm8til !Nit abalt.300 11M IMIIft
                            SCI1ItHIIId. Mange ~-that he could be oomiCt.
                            ..,., """ be . . bad& and ~g acldlllanat easel -                  palt ollhllntlmal in-agadlin,. she said.
                            ~ al8o Clalllrmell ttllllltw DPS did nol
                            . . . ltre problllma.fiere.
                                                                             notiY n'IOI&Iaw adbicat•ll oftll:tlla wno
                                                                                         .
                                                                                                                          do..,.._ wilh 111e McAllen' lab
                                                          .·             /        .
                            1 ltllnk (we),_, haw c:cn1actad one ollie prcsecutas, 11ut none oflhe ll*lga INI we have taund 'IIICIIIId change« al'lel
                            ltle out1come al.., cases.~ n said. ·
                             Bul acc&llldlftg Ill the laoitedlata put pn!Sidenl ol 1M Hantl County ClfmNI Defame~,.,,. !a•' •t, the CPS llad
                             ~    10 ~ everyonelmlciMd with the caa.
                             "TII.,-ve go& a ~duty ID dbdose 111at ••bnllllon (ID the cleflflclant).• said Hous1an attomer Troy t.tc:~C~r~My.
                             "Mycnewtlo had a casein llellatdt that IIIey wwe ~ ~wtlollad an ongoing case.-~
                             erJtitSed Ill lnNI til&.
                             lndllll. one local il8tec:dv.. w11o Ubd nac to be ldentilled, laid law enbcernent olllcials alsio 'IIICIIIId llae wanted Ia be
                             Jnlanned abol.t lie sitUalklft,

                             ,rs lille ~if 1Mel CIIIC8t, wo.~ld I want to know about it.• said ltlelaw offtalf. • Of counelwould, so I could do
                             !IDII'lrillng about it..

                             JDf/IQ:   Houston Clu'on~

            co•t&lt   w•.    •••lti,MII:                AfttltAII';    IJIIICfOIII\          tfAtl     f • t l l • t .. • • • :   'Ill   tl4r:   111••   Of.


                                                           r.~-:=o·.·-v· lng-!~ 1 ,...,...,.,
                                                               m                 ..;...:...::~~...
      . ,.
I(
/-'
       '-
      \.




                                           HARRY J. BONNELL, M.D.
                                                 4n6Pathology, Inc.
                                              6910 Monte Verde Drive
                                          San Diego, California 92119-1511

             Office/Fax: 619 698 6388                                        www.4n6Pathology.com

                                                     16 December 2013

             Gustavo L. Mireles, # 1128895
             McConnell Unit
             3001 S. Emily Drive
             Beeville, Texas 78102

             Dear Mr. Mireles:

             I have received and reviewed the materials provided by you regarding the DNAanalysis
             process in your case. In light of recent legislation in Texas regarding appeals ba5ed on
             outdated or now disproven forensic scie_nce, I have made copies of your materials for
             myself and forwarded the rest on to the innocence projects, address below. I'm not sure
             whose territory you are in - Austin or Houston.

             It is obvious to me that the methodology used was defective and certainly is below
             currently acceptable forensic standards; I don't believe it met forensic standards when it
             was done in 2001. It should have been challenged if your attorney was competent. It
             should go well on appeal if the Innocence Project picks it up. Let me know if they fail to
             pick it up and we'll generate some media publicity and get an attorney who loves
             publicity.




             ~;l~/(-t1
             Harry J. Bonnell, M.D.


             Cc: Texas Center for Actual Innocence
             University of Texas School of Law
             727 East Dean Keeton Street
             Austin, TX 78705

             Thurgood Marshall School of Law Innocence Project
             3100 Cleburne Street
             Houston, TX 77004
             Phone: 713-313-1139




                                                                                    £3- &-7
/
    .,




         I.     AFFIDAVIT OF HARRY J. BONNELL, 1\'l.D.



         I, Harry J. Bonnell, M.D., declare as follows:
                1.       I am a medical doctor, currently employed as a Forensic Pathologist

         licensed to practice Medicine in the States of California and Washington. A true and

         correct copy of my curriculum vitae is attached as Exhibit A.

                2.       I attended Georgetown University Medical School in Washington, D.C.,

         and graduated from that program in 1979. I have taught at the University of Washington,
         Madigan Army Medical Center, King County Corrections Center, Uniformed Services

         University of Health Sciences, University of Cincinnati College of Medicine, and the

         School ofMedicine ofthe University of California, San Diego. ·

                3.       From 1991-2001, I was the Chief Deputy Medical Examiner for the Office

         of the Medical Examiner in San Diego, California.         I have also been Chief Deputy
         Coroner and Director of Forensic Pathology of Hamilton County, Ohio, Staff Pathologist

         in the Forensic Sciences Department at the Anned Forces Institute of Pathology, and

         Assistant Medical Examiner of King County, Washington.

                4.       I have personally perfonned over 7000 autopsies and provided sworn

         testimony more than 585 times in the Superior Courts of twenty states, six Federal Court

         jurisdictions and eight military courts ..

                5.       In preparing this affidavit, I reviewed the transcript of trial testimony of

         forensic analyst Rolando OCHOA given in July/August 2001 in State v. Gustavo Mireles.

                6.       Based on my education, training and experience, and my review of this

         material, it is my opinion to a reasonable degree of medical certainty that

                     •   OCHOA's testimony was misleading and inaccurate

                     •   His testing involved the analysis of nine loci on DNA recovered from the

                         victim, suspect and scene materials; on some of the material, three loci
..

                    tested similar to the suspect and victim but not the other six. This does not,

                    as he testified to, qualify as a "match".

                •   Current standards, and those utilized by the Federal Bureau of

                    Investigation, require that 13 loci be used and that all 13 must match

                    between the two samples to call it a "match"

                •   Thusly, his inaccurate testimony did not meet the requirements of forensic

                    science in 2001 and forensic science now knows for certain that those

                    samples would not be matched to Gustavo Mireles.

           7.       I am not being reimbursed in any manner for rendering this opinion.

             I declare under penalty of perjury under the laws of the State of California that

     the foregoing is tnte and correct.


                              -~~
           Executedthis /L_ day of February 2014 in San Diego, California.


                1'~
            HARRY J. BO          ELL, M.D.




                                                    2
LABORATORY AND FORENSIC MEDICINE ASSOCIATES

JOHN PLUNKETI

1 30 1 3 WELCH TRAIL                                                                        TELEPHONE: 507-263-4022
WELCH, MINNESOTA 55089                                                             E-MAIL: PLUNKETTJ@FRONTIERNET.NET




March 25,2014
Re: Your January 27,2014 letter


Mr. Gustavo L. Mireles
McConnell Unit
300 I S. Emily Drive
Beeville, TX 781 02


Mr. Mireles:

I received your letter and the attachments, including:

    I.   A copy of a letter from you to Dr. Harry Bonnell, dated December 3, 2013, and Dr. Bonnell's responses,
         dated December 16 and December 19, 2013;
    2.   Partial transcripts of trial testimony by Criminalist Orlando Ochoa;
    3.   State's Exhibits #105 and #106, Texas Department ofPul:iic Safety Physical Evidence Submission Form
         and DNA Analysis;                                                         1
    4.   A copy of evidence items #5 and #6, a bloodstain lift;                i
    5.   State's Exhibits #60 and #62, uninterpretable B&W plain-paper copieJ showing victim's hands;
    6.   State's Exhibits #103 and #104, Physicai Evidence Submission Forms!
    7.   A letter from the Innocence Project of Texas to you, dated February 24, 2009; and
    8.   Media articles regarding the McAllen DPS laboratory.

I agree with Dr. Bonnell's analysis as stated in his December 16 and December 19,2013 letters. "Positive" DNA
identification requires a minimum of matches at thirteen loci, not two or three loci. "Consistent" profiles at two or
three loci have little significance, other than stating that analysis at these loci does not eliminate you as a potential
contributor to the source material.

Dr. Bonnell suggested that you contact the Texas Center for Actual Innocence (TCAI) and the Thurgood Marshall
School of Law Innocence Project. I am familiar with both organizations and have worked withthe directory of the
Thurgood Marshall Project in the past. In addition, I noted that you have had corresponded with the Innocence
Project of Texas (IPOT). I know the directory, Gary Udashen, personally. I encourage you to contact IPOT again
and let them know that I am willing to help you. I would also contact TCAI and the Thurgood Marshall Project and
send them copies of this letter. I am not familiar with 2001 Texas standards for admissibility of scientific evidence
such as DNA ... nalysis. One of the Innocence Project Attorneys will be able to help you with ~his issue.

Finally, I have copied the records you sent me and am returning your copies with this letter.

Sincerely,




John Plunkett, M.D.

JP:dp
Enclosures

cc via e-mail: Harry Bonnell, M.D.



Mireles re: Mireles                                  March 25,2014                                             Page I of I
                                                      U.S. Department of Justice

                                                      Office of Justice Programs

                                                      National Institute of Justice



                                                      Washington. D.C. 2053/




  Gustavo L. Mireles # 1128895
. TDCJ McConnell Unit
  3001 South Emily Drive
  Beeville, TX 78102

 Dear Mr. Mireles:
                                     I
         Thank you for your letter on March 11, 2014, requesting information on DNA testing
 policies and procedures. Specitib DNA processing policies and procedures may vary by
 laboratory, but publications pert ining to DNA can be found, and are available to the public, on
 the NIJ website through htt ://ni'.nc'rs. ov, in particular DNA for the Defense Bar at:
 https://www.ncjrs. gov/pdffiles 1 r1ij/23 797 5 .pdf.

        In addition, other resources may be available through your local Innocence Project, the
closest local facility is the Innocence Project of Texas, 1511 Texas Avenue, Lubbock, TX 79401,
or by phone: (806) 744-6525, email address: info@ipoftexas.org.

        Other DNA related materials are available on the NIJ website, including information on
postconviction DNA testing at: http://www.nij .gov/topics/forensics/postconviction/welcom.htm
and http://www.nij.gov/topics/forensics/postconviction/wrongful-conviction.htm.
                                 '
      Courtesy of the National :Institute of Justice (NIJ), please find enclosed a copy of Post-
Conviction DNA Testing and W)fongful Conviction and also the publication of DNA for the
Defense Bar.


                                                     Sincerely,
                                                     National Institute of Justice

Enclosure:
  ..,; · ...

   .   .~   · ..:"




                     JUNE 2012

                     DNA for the Defense Bar




www.NIJ.gov
  CHAPTER 2

  DNA Basics: The Science of DNA


 Section 1: What Is DNA?                                brown eyes and· carries a Bb profiie, tl>eir childrer,
                                                        vvill statistically be expected to look l;ke this: 25%
 Deo"y(;t;onuclc•c <-lCid iDI\!A/;s somet1mes called    BB (brown eyest 25% Bb (brovvn eyesl. 25% bB
 a genetrc blueprint because it conta1ns all of         (brown eyes). and 25% bb (blue eyes). Each of
 the 1nstruct1ons that determine an individual's        these four profiles reflects the d1fferent possible
 genetic characteristics. A technical explanation of    combinations given the genet;c charactenstics of
 DNA can be found at http://www.genome.gov/             the original DNA of dad and mom.
 glossary/index.cfm ?id=48.

                                                        What is DNA made f.)f?
 Where does nuclear DNA come from?
                                                       DNA is found in the cells of all living organisms.
 Our parents. All human cells with a nucle,_!S,        except red blood cells. DNA is actually a com-
 except gamete cells- egg and sperm cells              bination- called a DNA sequence- of four
 - have DNA cpntaining the full complement             bases: adenine, cytosine, guanine and thymine.
 of 46 chromosomes. Each egg and sperm                 commonly referred to as A. C. G and T (see
 cell carries half of the DNA complement
 (23 chromosomes).                                                                     H!MCitPEI .d&        X

                                                       Figure 1: NuCI: otide Base Pairs
   Mixing of genetic markers occurs across the
   DNA molecule during the formation of sperm
  cells and egg cells. Because of this mixing pro-
  cess. the DNA in all sperm cells from one man
  or all egg cells from one woman are not equal
  halves "split down the middle." Rather, each
                                                                                -
  genetic characteristic has a 50% chance of
  presenting itself in any given egg or sperm. In
  humans, very few observable traits are due to
  inheritance of only one gene. Most observable
 characteristics are the result of the products
                                                                                -
 of multiple genes interacting. Although actual


                                                                                -
 inheritance of eye color is complex, the follow-
 ing example simplifies the concept of inheritance
 of eye color for illustrative purposes. Consider
a male with brown eyes who inherited a brown
eye gene IBl from one parent and a blue eye
gene (bl from the other. His "eye genes" will be
depicted by geneticists as Bb. (Remember this
from high school biology?) Half of his sperm cells
will have the B (brown) gene, and half will have
                                                                                -
the b !blue) gene. Simplistically, the color of his
children's eyes will be dictated by two factors:
                                                       Source Christme Funk. Working Group MeMber
what gene he gives them and what gene their
mother gives them. If the mother likewise has




                                                                                                                 r. 3 _r
        CHAP T E R 2


    Frgure 1 ). These :u.:r :!Yot".'i, 1n varying combrna-
    tions. r~lake up yeasl. bananas. chickens. rice and
                                                             rtr       1w     u· nm··...,...•·Mr:mms
                                                             Figure 2: The DNA Double Helix
                                                                                                                    .   -
    peop!e as well as cl! other living organisms

    The principle of sequence formation is not unlike
    the principle of the English language. The 26 let-
    ters in the alphabet (or the four bases in a DNA
    sequer,cel can be combmed in various ways to
    make different vvords. "The" and "theory" have
    three 1etters 1n common -both in the specrfrc
    letters used and the order of the first three let-                               ______.:....:.:.
    ters. Yet the word "the" has no application to                                      __J_....JI._
                                                                             Double         C G
    the w?rd .. theory ...                                                   heli~  (        · .,_.


    Likew1se. in music. there are 12 'elements: seven
    notes (A. B. C. D. E. F and G) an9 five sharps or
                                                                                     \
    flats. Playing these notes in different combina-
    tions creates "The Flight of the tumblebee ...
    Pachelbel's ··canon in D" and th theme song to
    "Charlie Brown."                   I                                            ~-·


                                                             Source: John Butler. National Institute of Standards
    With DNA. instead of 26 or 12 elkments. there            and Technology.
    are the four bases mentioned above. Just as the
    combination of notes dictates what the music
    sounds like and the combination of letters dic-
    tates the word. the combination ·of As. Cs. Gs           Bases pair up to form the "steps" of the DNA
    and Ts dictates tl:le type of livingithing.              molecule. The sides of the DNA molecule are
                                                             made up of sugar and phosphate chains.
    The DNA of all human beings is actually nearly
    identical. Approximately 99.9% of the sequence           Our interest is in the bases themselves. Imagine
    of As Cs Gs and Ts is in the exact same order.           straightening out the DNA molecule to make a
    This dete.rmines common humarn features such             ladder rather than a spiral staircase. Each step
    as two eyes. ears on both sides ~f the head.             of the ladder is a single base pair. As indicated
    and long bones in forearms and alves. Although           above. there are about 3.2 billion base pairs
    looking at these parts of the ON molecule.               in the DNA molecules comprising each set of
    might help us determine it is hu an DNA-                 human chromosomes.
    rather than. say. banana DNA- it isn't helpful
    in distinguishing one human fro another.                 Each base pair consists of either an A matched
                                                             with a T a T matched with an A a C matched
    There are however. places on the human DNA               with a G·. or a G matched with a C. That's it.
    molecule ·that are different. Of the approximately       Those are the only .four combinations of base
    3.2 billion base pa;rs in the human genome. a            pairs that exist. Bases that pair with each other
    forensic DNA-typing test looks at about 3 thou-          are called complementary bases.
    sand base pairs where there are:known differ-
    ences between people.                                    These base pairs. about 3.2 billion strong, repre-
                                                             sent a whole DNA molecule or what is referred
                                                             to as nuclear DNA (nONA). All cells in the body
    What is a base pair?                                     contain DNA. except for red blood cells. which
                                      I
                                                             do not have a nucleus. DNA in blood comes from
    Picture the DNA molecule as a ~piral staircase
                                      G
    (see Figure 2). The bases A. C. and T behave in          the nuclei of white blood cells.
    a precictable pattern of matching and becoming
    base pairs. A base pair is simplyia pair of bases.
                                      I




t                                 I
                                                                            Ul~i-1 bi-1~10'   I HE SCIENCE OF DNA



                                                                                                                •   CWUJ

 Figure 3: DNA in the Cell




                                                        Chromosome

                                                    ~//!'·


                           Double-stranded
                           DNA molecule
                                           ·~·



                                   ;~~


 Source: John Butler. National Institute of Standards and Tecnnology
                        -0                       was:asaa:asuaw:I&OO




 Bacl< to high school biology                                                coding for eye cplor or the potential predispo-
                                                                             sition toward a genetically inherited disease)'
  Picture a chicken egg. An egg is like a cell.                              -except for armelogenin, which is used in
 except that an egg's outer shell is smoother and                            forensic analysi for gender differentiation.
  more symmetrical than a cell's outer shell or                              The areas at wh ch forensic analysts look are
 membrane. The yolk of the egg is comparable to                              always found in the same spots on the same
 the nucleus of a cell. The DNA is located inside                            chromosomes. ach specific location is called a
 the nucleus (see Figure 3). The DNA in a single                             locus (pronounc d "LOW-cuss"). The forensic
 cell is over 6 feet long and is bunched up inside                           science commu I ity typically uses a minimum
·the nucleus of each of our nucleated C"?lls. In                             of 13 genetic lo~i (plural for locus. pronounced
 order for DNA analysts to be able to conduct test-                          "LOW-sigh"), referred to as the 13 core COOlS
 ing on DNA. they must remove the DNA from the                               (Combined ON~ Index System) loci. This enables
 other cellular material that is present. using a pro-                     · laboratories to s.earch profiles against other pro-
 cess called DNA extraction or DNA isolation.                                files already in the COOlS databank (although
                                                                             some laboratori~s test more than the 13 core
Human traits are determined by the particular                                COOlS loci). Thrbughout this training guide, refer-
order of the bases. The first thing the order dic-                           ences will be made to the 13 core CODIS loci.
tates is that we are human. Second. the order
of the base pairs dictates all the physical traits                         These core COOlS loci are CSF 1PO. D3S 1358.
we are born with (such as eye color. face shape,                           05S818, 07S820, 08S1179. 013S3J7.D16S539.
etc.). In addition, there are base pairs that do                           D18S51, 021 S1i1. FGA. TH01. TPOX, and VWA
not "code" for anything and pairs whose coding                             (TPOX is pronoJnced "T-Pox ... VWA is pro-
functions are not yet known.                                               nounced V.W.A. Likewise. FGA and CSF are sim-
                                                                           ply pronounced py their individual letters. THO 1
The DNA looked at in forensic science is not                               is pronounced "~ho One." with a hard "th. ").
currently known to have any function (such.as
                                                                                                i
                                                                                                '


        .           .                                          ..      .           .            '                                  ~
lj@ijj IJ~tifi-K-~J!~'i&iie·etK4kn#~:.«~~~w.ieoW&~~;ilw&¥~~:
      INITIATIVE
                     CHAPTER 2
      ;....;.J._..~·····"~>M-::~-,;-.~~~




                 For the "D" loc1. the number following the D            for Cl pattern at a specific location on the 11th
                ivvh1ch s1ands for DNA! tnd1cates the chrome-            chromosome. The pattern looks like this AATG
                some on which each locus is found. 021 S11.             V'!e know that everybody has the same AA TG
                for example, is a complete name. which lawyers           sequence on the DNA molecule at THO 1 Tr1e
                refer to as 021 tor 1dent1ficat1on. Here "21"           difference between individuals is how many
                refers to the 21st chromosome. S corresponds            times the pattern AATG is repeated on both of
                10 the v;ord ··singie'' -meaning there 1S oniy          their 11th chromosomes. Some people have a
                one copy of !h1sgenet1c marker in the huma'l            pattern of the four bases AATG repeated five
                genome. and the number following the S refers           times. and their DNA type, or allele. for that copy
                to \.Yhere tillS lOCUS rS IOUild on the 21St            of the;r 11th chrOmo.some would look iike thts tf
                ct1romosome.                                            it was sequenced by bases AA TGAATGAAT G
                                                                        AATGAATG. Other people. however. have otner
                 Each of the 13 loci was chosen because of rts          alleles -and the person with five repeats on
                high degree of po!vn~orp!·,ism, meaning that            one of their 11th chromosomes may have a
                several different possible genetiy types exist for      completely different repeat on their other 11th
                each locus. By examining and identifying these          chromosome. For example. the sequence AATG
                differences, scientists in the laboratory can dif-      AATGAATGAATGAATGAATGAATGAATGAATG
                ferentiate between people. To illustrate, the loca-    shows the pattern of four base pairs repeating
                tions on the DNA molecule that dictate for .the        .nine times. This allele type is a 9. If one addition-
                nose to be in the center of the face are essen-        al four-base-pair pattern were repeated, the allele
                tially ident1cal among us all. On tre other hand,      type would be a 10.
                the genes that dictate the shape; of one's nose
                are poiyr;,orphic. All you have to 'do is look at 10   So what's a 9.3? Although most of the time
                people to know that                                    the DNA we are looking at involves a repeating
                                                                       pattern of four base pairs. sometimes- 9.3 at
               At each core COOlS locus. the possible types            TH01. for example- this is not the case. We
               one can have are labeled by nuniber. At TH01.           already know that. at this locus. nine repeats of
               for example. the types that havei been observed         AATG constitute a 9 allele type and 10 repeats
               are 5. 6, 7, 8, 9, 9.3. 10 and 11. tenerally, each      make a 10 allele type. A 9.3 reflects nine repeats
               person onthe planet has two of hese: one from           of AATG and an additional three bases minus one
               mom and one from dad. These t pes are referred          of the As. ATG. If there was an additional A in the
               to as alleles (pronounced "uh-LEELS"). If the two       same predictable pattern, we'd call it a 10. but
               alleles m a profile are identical (in other words       because some people have ATG in addition to
               the person received a 5 from mdm and a 5 fr;m           nine repeats of AATG. an allele type of 9.3 exists.
                                                    I
               dad), they are homozygous. If the two alleles are
               different, say, a 5 from mom and an 8 from dad,         Not every locus has the repeating pattern of
               they are heterozygous at that locus. Rare muta-         AATG, but 'every STR locus does have a repeat-
               tions can and do occur (see. for example, www.          ing pattern of base pairs that we look for to iden-
               cstl. nist.gov/biotech/strbase/).                       tify the allele types for that particular locus.


               ~:lmrt   tandem repeats (STRs)                          How are loci of interest found?
               The numbers identifying the alteies for the core        Let's continue to use TH01 as an example. We
               CODIS                                                   know it is on the 11th chromosome. and we
                 . . loci reflect the number o1' repeated base
               pair seQuences at that locus. Re81ember. the            know where it is on the chromosome. In the
               locus is polymorphic- it varies trom person to          iab. DNA test kit reagents .are combined with
               person. The way it varies is in it~ length. A per-      a portion of the DNA obtained from a sample.
               son who has a type 5 has a much shorter length          The reagents have several jobs. One is locat1ng
               of DNA at that locus than a persbn who has a            the areas of interest (the loci) that we wish to
               type 10.                           !                    test. Pnmers run along the strands of the DNA
                                                  I
                                                                       molecule, looking for the loci we care about. The
               For example. at TH01. we are not just look-             primers then identify the DNA strand immedi-
               Ing at the 11th chromosome; we are looking              ately before and ·immediately after the region of




-~~~f!!~1:T'"'~~~~~!f;k!%9'\Y.#.f:}iit"Mk¥~;:\"~~~~fl~$. ~)~'ft.~
 (p
                                                               DNA BASICS: TRIAL ISSUES


,
         0    And 11 doesn't teii us when that happened.       analyst should concede these po1nts easily; they
              where it happened or how it happened; isn't      may be worth exploring on cross-exam1nat1on
              that true?                                       1f the defense theory suggests contamination.
         A.   Yes.                                             transfer or the innocent presence of the defen-
                                                               dant at the sce~e at a different point in time.
         FOR CASES INVOLVING THE INNOCENT
         DEPOSIT OF DNA:                                        Many labs do n~t attempt to distinguish between
                                                               vag1nal and skin cells. A scientist may be able
         0. The DNA :est results can't tell when the           to obtain a DNA profile but not be able to testify
            DNA was left; 1s that correct 7                    that the source definitely was vaginal fluid or
         A. Correct.                                           skm. Contrast tf\is with the confirmatory tests for
                                                               semen. Most of the time. scientists can conf1rm
    '    0    The DNA test results can't tell you the time     that the DNA profile came from sperm cells.
              it was left; is that correct?
         A.   Correct.                                         The defendant's DNA may have come into con-
                                                               tact with an item of evidence through contamina-
         0. The DNA test results can't tell you the date       tion. As a preliminary matter. counsel should look
            it was left; is that correct?                      carefully at chain-of-custody logs for eve.ry step
         A. Correct.                                           of the process ~ from the crime scene to the
                                                               laboratory to th.e analyst's workstation, and any
                                                               other movement or handling in between (includ-
        0. The DNA test results can't tell you whether it
                                                              ing any time eviidence was removed from stor-
           was deposited consensually; is that correct?
                                                              age and then r~turned). If the defendant's known
        A. Correct.
                                                              DNA sample was handled on the same day as.
                                                              and in particula~ before. an item of evidence ~
         If defense theory favors opposing the govern-
                                                              wh1ch the labo~atory's protocols may prohibit
         ment's claims regarding the DNA evidence
                                                              ~there may be reason to think that the defen-
        -that is. if the defense theory is that the d-efen-
                                                              dant's DNA wa~ transferred to the evidence
        dant's DNA is not where the prosecution says
                                                              through misha~dling. If the defense theory is that
         it is - then cross-examination of the govern-        the DNA was contaminated, counsel should pro-
        ment witnesses may be the primary strategy            ceed with caution and be prepared· to elicit evi-
        for undermining the evidence and showing the
                                                              dence in support, through either the DNA analyst
        jury why they should discount it. The goal of the     or others who ¢ame in contact with the evidence
        adversarial cross-examination should not be to        during the chain of custody.
        spar vyith or outwit the expert but. instead, to
        systematically highlight the shortcomings of the       Under either a ~ransfer or contamination theory.
        procedures that led to the DNA report asserting       counsel will want to find a compelling way to
        that, for example, the defendant's DNA profile        illustrate to jurors how little DNA is required
        cannot be excluded as admissible evidence.            for it to register on the analyst's instrument.
                                                              Depending on Which DNA testing kit is used. one
                                                              nanogram or l!s is considered to be an optimal
        Time, place, transfer and contamination               amount of DN for testing. Defense attorney
         In most cases- except some sexua! assault            Bob Blasier fa . ously illustrated this concept:
        cases - analysts cannot say exactly when or           Hold up a pack~t of sugar and note that it con-
        under what circumstances DNA came into con-           tains approximftely 1 gram of sugar. Assume the
        tact with a piece of evidence. DNA at a crime         ~acket. contain~ 1,000 individual granules. Con-
        scene may have been left there days, weeks or         firm w1th the ahalyst that given this premise. to
        months before the crime. or after the crime was       obtain a nanogram of sugar they would need to
        committed. A person or object may have trans-         divide a single crystal by 1,000, and then divide
        ferred the DNA there. If the defendant's DNA is       one of those pieces by 1,000, and then again.
        present at the crime scene oron an object recov-      Finally, the expert will agree, you are at 1 nano-
        ered from the crime scene. this does not mean         gram, or less than the eye can see- and that
        with any certainty that he or she was present at      amount, or less. is all that is needed for a per-
        the crime scene at any time. The government           son's DNA profile to appear in a test result. That
                  CHAPTER 8
·"   ·-~iJi.'iftfs~iU+'M*WZ,




              ar:~:::>•,,r.T of DNA n11ght be transferred by a sma!!        w1th a trad,tJonal rardom match statiStiCal ca1cu·
              nL:":ce' of sk1n eel's that came 1n contact wi:h              Jation can address drrect!y; however. some labo-
              a person or ObJeCt. which later came in con:act               ratones now use source attr10Ut10n staternen~s 1n
              wtr. another object If counsel picks up a pen                their DNA reports. A source attribution statement
              1n the courtroom. the expert will probably agree             is used to definitively state that. !o a reasonable
              that there IS a fair chance that co.unsel's DNA IS           degree of scientific certainty. this DNA profile
              now on that pen by way of shed ~kin cells.                   ong1nated from this person. or the1r Jden:1ca!
                                                                           tv.:rn Source attribution teStlmOrty must actL.al!y
             In sr,ort. miniscule amounts of DNA can be trar,s-            re!y on demonstration via a statist1cal calculation
             ferred easdy. Th1s line of cross-examination can              i;yp1ca!ly 1n the case notes) that the obta,ned
             be effect;ve under a theory of simple transfer or             Df~A profile meets or exceeds the value set by
             contam1nat10n. Factors such as evidence packag-              the lab 1n order to make such a statement. The
             ing, handling and cham of custody are critiCal to            defense's expert should be able to assist counsel
             developing the facts necessary to support su::h a            in locating the statistical data and publications on
             theory                                                       wh1ch the lab relied to reach ItS conclusion and
                                                                          design appropriate challenge questions.

             Statistics
                                                                        coth~e_!i~tions~l"l.f(~07
              Unless there is an opposing legal ruling, to be
              in compliance with the current SWGDAM Guide-               Another potential area for cross-examination is
              lines, a DNA analyst should be p~esenting a sta-           that the inculpatory claims are being made on
              tistic to charactenze the significapce of a match          the basis of a finite number of genetic locations
             involving DNA found on an item d>f evidence and             -most typically, ,the=l3-c·ore·CODTS~Ioci~fie,15
             someone involved with the case.! In non-mixture             STR loci in the ldentitilere. l<if,orthef5 ·sTRioci
             cases- and often in distinguishable DNA mix-                in the PowerPiex® 16 kit - of the literally billions
             ture cases -that statistic will take the form of a          of genetic locations comprising the complete
             random match probability. as discussed in Chap-             human DNA chain.
             ter 6. Section 7. In an indistinguishable mixture
             case. the statistic will likely take the form of a           The entire human DNA genome for each person
             combined probability of inclusion !CPI), a com-              is unique (even identical twins). In forensic DNA
             bined probability of exclusion (CPE). also called            testing, however, only a finite number of auto-
             random man not excluded (RMNEL or a likeli-                  somal STR genetic markers are examined (as
             hood ratio (LR).                                             noted above, typically 13-15 areas). Research
                                                                          strongly supports that it is necessary to examine
             One section of the adversarial cr<;>ss-examination           10 or more of these areas of DNA in order to be
             should focus on the analyst's statistical claims.            able to distinguish between people. even those
             It is important to dispel what is khown as the               who are related (with the exception of identical
            prosecutor's fallacy, which is a cCDmmon misin-              twins. who will have the same autosomal STR
            terpretation of the random mate~ probability sta-            DNA profiles). The prosecution's expert should
            tistic. If the probability that a ran~omly selected          concede that other genetic loci developed for
            individual would match the DNA profile found at              forensic identification were not used in the cur-
                                                                                      A   .                         ---- --~ _.:..._
            the scene is 1 in 1 trillion, that does not mean           , rent case. l~?!fenoantw~"ll e--=~~~u~ed..:E.Lil.l55
            that there is a 1-in-1-trillion chande that the DNA        ~:one~~f_::!b_ose-ot~~~--l~catio~!Jtle~_e~~ert-~_9.~d. _. ,
            came from someone other than the defendant.                 ~h_ave·to agr~(lt tb_e._Q~~m(,!~Lf:la_vEl_::_.ongtna_t~cj.)
            It means that if a person is picked at random out          c)rornaO..Q:tnet_p_e;~ - however. the analyst did
            of the general population. the probability that he           not test those other locations. Defense counsel
            or. she will match the detected profile is 1 in 1            should be aware that forensic scientists within
            trill1on.                                                    a laboratory use whichever commercial test
                                                                         kit their laboratory protocols specify. Although
            The question of "What is the probability that the            there are a number of kits available that test for
            evidence DNA profile came from the defendant                 additional genetic markers beyond the 13 core
            is not one that DNA testing thatis supported                 CODIS loci. not all labs use the same kits.




     !~·~~:Y-'~~·~:~~~~:r.-~!~~·~1~-rF'~i'F~~y~'!'J~f>~·~y~~·~~~·~~::.~r~"flTTF·':~:ri:'                                               1t}
                                                 •                                                                 INITIITIVf
  Section 1: Statute of Umitat;ons                             which DNA evidence exists and has been
                                                               preserved. 6
  Defenses
 Statute of limitations legislation serves a number
 of purposes:                                                  Section 2: John Doe V\farrants
                                                               Typically, the period of limitations is tolled when
          [T)he applicable statute of limitations ... is ...
                                                               a charging document with some information
         the primary guarantee against bringing over-
                                                               about the perpetrator's identity has been prop-
         ly stale criminal charges. Such statutes rep-
                                                               erly filed. "John Doe" warrants- warrants
         resent legislative assessments of relative
                                                               without a known name but with some identifying
         interests of the [s)tate and the defendant in
                                                               information - have begun to be used, particu-
         administering and receiving justice; they are
                                                               larly in DNA cases.
         made for the repose of society and the pro-
         tection of those who may [during the limita-
                                                               The first issue i~ whether John Doe DNA war-
         tion) ... have lost their means ~f defence.,
                                                               rants satisfy the: "particularity" requirement of
                                                               the Fourth Amehdment or parallel provisions ·
        From the defendant's vantage point. there
                                                               of state constitutions. Generic descriptions of
        is particular "concern that the passage of
                                                               suspects generally do not meet this standard.'
        time has eroded memories or made wit-
                                                               However, courts that have considered the issue
        nesses or other evidence unavailable. " 2
                                                               to date have found that John Doe warrants with
                                                               a numeric DNA profile as the identifier meet the
The following principles of law are not in dispute:
                                                               Fourth Amendment standard. 8
ll    Once the period for commencing prosecution
                                                               A separate argument contends that a warrant
      has expired, it cannot be retroactively extend-
                                                               should give notice to the perpetrator so that he                   ·.
                                                                                                                            ·- -·..
      ed by new legislation. 3
                                                               or she can gather evidence and prepare to meet
ii    This is true even in cases where DNA evi-                the charges. Clearly, a DNA-profile warrant does
      dence conclusively establishes identity. 4               not give notice to the average citizen. H~;vx~v~r.
                                                               the one court to consider this claim tQ.,.cl~t~;·has
If!   Conversely, when a legislature extends the
                                                               rejected it. 9 This type of claim yy().uJ~:aP,P)y;'9nly in
      statute of limitations for a particular criminal
                                                               states where the statute o.1~,\iJ1\~~~t.~c;).Q~~r~~:.been
      act before it expires. the extended period
                                                               extended but n$t elimi~e:p~~.~.~:r~iW9.:U1d be
      applies and no statute of limitations defense
                                                               no claim of entillerQJ~.qf~~·~iji~!!.ce in ~tates
      applies. 5
                                                               where the legislature has .abolishe~La part1cular
The advent and success of using DNA to prove                   period for comfencing prosecution.
identity - particularly in sex crimes with biologi-
cal material -' have led to legislation changing
the time period in which specified crimes may be
prosecuted. In some instances. the time period
has been lengthened or eliminated entirely. An                 Regardless of whether the limitations period has
extended period has been granted in cases in                   been extended or abolished, delayed prosecution
                                                               may raise due process concerns if the right to
                        CHAPTER 9
·:..:.::.:.·~"~'"l¥;n-;=t.~ll.'li9Jllilli!IIIG"&F




                  present a defense has been severely compro-            and compare qualifying DNA profiles on the
                  mised. The U.S. Supreme Court has explained            national level. Profiles deemed "allowable" by
               · that the Fifth Amendment requites the dismissal         NDIS are then searched against profiles from
                 of an indictment- even if it is ~rought within          all other SDIS participating labs accepted at
                 the statute of limitations - if the defendant can       the national level. As of August 2010. NDIS
                 prove that the government's delay was a delib-          had more than 8.7 million offender profiles
                 erate device to gain an advantage over him and          and more than 330,000 casework profiles. :4
                 that it caused him actual prejudice in presenting
                                                                      Ill SDIS- the St2~e Df~A .ndex Systern-
                 his defense. ' 0
                                                                         allows laboratories within each state to
                                                                         exchange DNA profiles. Each state has a
                The difficulty in applying this test is twofold.
                                                                         single statewide databank- SDIS. The FBI
                First. it requires proof of the prosecution's ill
                                                                         serves as the SDIS lab for the District of
                motive in delaying, unless state law is more solic-
                                                                         Columbia. The U.S. Army Crime Lab is also an
                itous.'' Second, the prejudice must be substan-
                                                                         SDIS lab. Each SDIS Administrator acts as the
                tial.12 Nonetheless. it is an issue that warrants
                                                                        gatekeeper for determining the acceptability,
                examination in any case where there is a signifi-
                                                                        based on that state's guidelines. of profiles
                cant gap between commission of the offense
                                                                        submitted by each of the state's LDIS labs.
                and commencement of actual prosecution.
                                                                        Profiles accepted by the SDIS Administrator
                                                                        can be searched against those entered by
                                                    1
                                                                        other LDIS labs in the same state. Profiles
                Section 4: The Databan1 Hit Cas.e                       accepted by an SDIS lab will also be searched
                                                                        against the convicted offender and arrestee
                                                                        (when applicable) profiles entered by the SDIS
                Overview of the CO DIS DNA ,atabanks
                                                    I
                                                                        lab. SDIS cust~dians can share their data with
                In 1990, the FBI Laboratory began a pilot project       the national CO"DIS community by forwarding
                called COD IS, creating proprietary software that       it for consideration for inclusion in NDIS.
                enabled and continues to enable federal, state        m LOIS- the Local DNA Index System- is
                and local laboratories to electronically upload,        the databank where regional, county and
                exchange and compare DNA profiles.            ·         municipal labs within a state enter their pro-
                                                                        files. Bench-level DNA examiners, or the lab's
               The Federal DNA ldentificationAct was en.acted           designee, use ·CO DIS software to enter DNA
               as part of the Violent Crime Conlrol and Law             evidence profiles into LOIS, where they are
               Enforcement Act of 1995 {Public Law No. T03-             searched against other profiles that have been
               322). This law authorized the FBI to establish a         entered previously by their lab. Local labs can
               national DNA index for Jaw.-enfo~cement. Since           then forward their profiles to the state level
               then, federal and state governments have invest-         for consideration for upload. Local labs must
               ed significant resources toward ~eve loping and
                                               1
                                                                        go through their SDIS lab to get profiles into
               maintaining a national databank ystem. NDIS              the national level of CODIS.
               became fully operational in Octo er 1998.
                                                                      The three-tiered system allows state and local
                                                    '
               CODIS users predominantly access two indexes:          agencies to operate their individual databases
               the forensic index and the offender index.' 3 The      within the confines of state laws. which vary by
               forensic index contains DNA profiles from crime        jurisdiction. The exchange of information within
               scene evidence. The offender index contains            this secure system is controlled by and strictly
               DNA profiles of individ.uals who have been con-        limited to law enforcement.
               victed of offenses defined by state or federal
               law. The FBI maintains the COOlS databank.             COOlS allows for the entry of qualifying DNA
                                                                      profiles into indexes based on specimen catego-
               CODIS has three levels:                                ries. The most commonly used specimen catego-
                                                                      ries are as follows:
               !!!! NDIS- the National DI\JA Index System- is
                    the highest level in the COOlS hierarchy. It      • Convicted offender: DNA profiles of people
                    enables participating labs to upload, exchange      convicted of a crime.
/

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      1r Forensic: DNA profiles developed from crime          Forensic DNA databanks were originally limited
          scene evidence.                                    to samples only from adults convicted of felony
                                                             sex offenses and a few other violent crimes.
      £' Arrestee: DNA prof.iles of arrested persons
                                                             Databanks have: now been expanded to include
          (if state law permits the collection of arrestee
                                                             many other offenses as well as other classes of
          samples).
                                                             offenders. All         59
                                                                                states. the District of Columbia.
     c: Missing persons: DNA profiles from missing           and all federal jurisdictions now require certain
        persons- either known or deduced to be               classes of convicted offenders to prov1de a bio- ·
        known profiles from missing persons.                 logical sample for entry into a DNA database.
                                                             Each jurisdiction's statute determines whether a
     E    Unidentified humans: DNA profiles from
                                                             person convicted of an offense will be required
          recovered unidentified human remains (UHR)
                                                             to submit a biological sample for inclusion in a
          as well as from humans who are unable or
                                                             DNA database. (For more information, see http://
          unwilling to identify themselves.
                                                             forenslc.dna.gov/module9/1/.) The trend is clearly
     El   Biological relatives of missing persons:           moving toward including larger categories of
          DNA profiles voluntarily contributed by rela-      people, including those with misdemeanor con-
          tives of missing persons.                          victions, juveniles and arrestees. 17
     Other databank indexes exist (such as those that
                                                             CODIS contains limited information, s~ch as a
     contain RFLP profiles). and the ability to enter
                                                             specimen identifier, the sponsoring laboratory's
     mtDNA and Y-STR data has been added for cer-
                                                             identifier, the initials or name of DNA personnel
     tain specimen indexes. Federal and state laws
                                                             ass~ciated with the analysis, and the actual DNA
     govern access. disclosure, compatibility, expunc-                         1
                                                             ~rof1l~: Depen~ng on lab protocol, the specimen
     tion and penalties for unauthorized disclosure of
                                                             1dent1f1er of. pro iles submitted to the forensic
     information contained within CODIS. 1s
                                                             (ca.sework) 1nd x may identify the type of bodily
                                                             flu1d, whether t~e source is known, and/or
       The DNA Identification Act of 1994. which estab-
                                                             whether the entered profile was deduced from
       lished NDIS. also created the DNA Advisory
                                                             results of mixed-sample DNA typing. CODIS
    . Board (DAB) to develop standards for quality
                                                             does not store criminal history information or the
      assurance. The board's work culminated with
                                                             names of convicted offenders/arrestees.
      the promulgation of the first set of standards
      document for the forensic DNA casework analy-
                                                             When CODIS software recognizes the same
      SIS community, which became effective national-
                                                              DNA profile in the forensic and offender indexes.
      ly on October 1; 1998, issued by the FBI director.
                                                              it identifies the two profiles as a match. These
      These standards superseded the existing
                                                              matches are commonly referred to as "hits."
      TWGDAM Guidelines that had previously been
                                                             Qualified personnel from both involved labs then
      used as the guiding document by forensic DNA
                                                             analyze the reported match to either validate or
      labs. A second set of standards for convicted
                                                             refute it. This critical review of all matches is
      offender databasing laboratories. which became
                                                             standard operating procedure and is used to
     effective on April 1, 1999, was issued by the
                                                             ensure that a rriatch produced by a search of the
      DAB before the group disbanded on March 9,
                                                             databank "mak_rs sense." With a hit generated
     2000. Currently, the responsibility for maintaining
                                                             by a search of ~ODIS that involves a 13-loci ·
     the Quality Assurance Standards (QASJ docu-
                                                             match betwee~ an offender profile and ·a single-
     ments falls to the director of the FBI. Recom-
                                                             source evidenci3 profile, the review process is
     mendations for updates are provided by the
                                                             fairly straightfotward. Once both labs have
     Scientific Working Group on DNA Analysis Meth-
                                                             agreed that the1profiles do indeed match, the
     ods (SWGDAM). 16
                                                             convicted offender lab will then research which
                                                             offender corresponds to the specimen identifier
    To participate in NDIS, states must sign a Memo-
                                                             in its system and will pull the corresponding sam-
    randum of Understanding verifying that the sub-
                                                             ple and rerun it to confirm that the archived sam-
    mitting laboratory is in compliance with the FBI's
                                                             ple bearing the offender's name generates the
    quality assurance standards.
                                                             same profile as the one entered into CODIS for
                                                             that individual. This quality check is to ensure
               CHAPTER 9



           that sample results were not inadvertently                 investigations and share leads. even across mul-
           switched during analysis or data entry. Once the           tiple jurisdictions.
           profile has been confirmed in this manner, the
           convicted offender lab will subsequently provide
           basic information regarding the offender,
                                               I
                                                        such as       Introduction: The hypothetical databank
           name,.
                   available Department    of Corrections
                                               I
                                                          infor-      hit case
           mat1on, and recorded date of birth, race and sex
           to the casework lab. The casework sample lab               A woman alleges that she was raped. but she
           will then issue a hit report to the investigating         cannot make an identification and the police do
           agency to notify it of the databank match. This           not have a suspect. Semen found in her vagina is
           report typically requests submission of a newly           typed for a DNA profile. and the profile is devel-
           obtained buccal sample from the identified                oped and entered into the state's DNA databank.
           offender to the casework lab as another quality           It is compared with the profiles in the convicted
           check to ensure that a DNA profile obtained from          offender databank, and there is a match with the
          the offender does indeed match the profile gen-            defendant. The police use this hit as probable
          erated for the evidence profile. This report should        cause to ultimately take the client's DNA sample,
          also specify that the hit information is only              which is then tested and compared with the evi-
          intended to provide potential investigative leads          dence sample. This may result in prosecution but
          that must be pursued by the investigating agen-            could result in a delayed prosecution when the
          cy. If subsequent investigation supports that the          following occurs:
          COOlS match is meaningful, this' can be used as
          the basis for probable cause to 1tain the                  IIi   The testing by the lab is conducted well after
          requested biological sample fro the offender.                    the alleged incident occurs.
                                                                     a The testing is conducted and the databank
           There are times, however, when the DNA profile
                                                                           match occurs, but the suspect is not available
           generated from crime scene evidence that has
                                                                           to provide a sample for direct comparison with
           been entered into CODIS is a mixture of more
                                                                           the evidence profile until later.
           than one person's DNA. In those cases, the ana-
           lysts will still critically compare the profiles to see   11    The databank hit occurs in reasonably close
           if the offender's profile is included as part of the            proximity to the alleged incident; however, it




      ~
           mixed DNA casework profile. It is not uncom-                    takes a while for the government to build a
           mon in these circumstances for the analysts                     case for prosecution.
          to dismiss a match proposed by COOlS as not
                                                                     11 The databank hit occurs in reasonably close
           "making sense" on the basis of analytical data.
                                                                           proximity to the alleged incident; however,
          When this occurs, unless agency policy states }
                                                                           other pending prosecutions against the defen-
          otherwise, no hit report will be issued by the
                                                                           dant delay ability of the prosecution to initiate
          casework lab; however, all information regarding
                                                                           the case at hand.
li.       the comparison and disposition df the hit will be
          maintained in the corresponding case file. When            This section covers some of the concerns and
          the labs determine. on the basis~:f their review,          opportunities for defense attorneys dealing with
          that the analytical data support t e hit, a similar        these increasingly common "cold hit" cases.
          process to the one noted above s followed by
          the offender lab to research, con irm and share
          offender information with the ca$ework lab.                How to approach a COD IS or cold hit case:
                                                                     The basics
          When a DNA profile in the forensic index match-
          es another profile in the forensic index, crime            A "cold hit" case is generally like a "normal"
          scenes can be linked together. COOlS hits involv-          DNA case, except that the government may have
          ing two casework profiles will still go through a          little to go on, other than the cold hit. Defense
          verification process. If both labs are in agreement        counsel can still use the typical defense theories
          that the profiles match, both casework labs will           that do not involve challenging the DNA evi-
          typically provide hit reports to the corresponding         dence, such as consent, or fabrication or plant-
          investigating agencies. These hits enable inves-           ing of evidence. Of course, sometimes such a
          tigators to identify repeat offend~rs. coordinate          defense is not the best option. In those cases.
