Court of Criminal Appeals Upholds Limited DNA Testing in Death Penalty Case


Over 341 people have been exonerated through DNA evidence after being convicted of crimes they didn’t commit. The Texas Legislature recognized the need to require DNA testing, especially in the most serious of criminal cases, including those in which the death penalty is sought. Effective September 1, 2013, the Texas Legislature amended Code of Criminal Procedure Article 38.43 adding Subsections (i) through (m).

DNA Testing in Death Penalty Cases

Article 38.43 Subsection (i) requires the prosecution to have an accredited lab perform DNA testing on “any biological evidence that was collected as part of an investigation of the offense” that is in possession of the state in any case where the prosecution seeks the death penalty. Subsection (j) provides that as soon as practicable after the defendant is charged, the trial court must order the prosecution and defense to confer about what evidence should be tested. Subsection (j) provides that if the state and defense cannot agree on which materials to test, either side can request the court to hold a hearing to determine the issue. Subsection (j) continues that at the hearing, there is a rebuttable presumption that the materials requested by the defense are materials that are required to be tested. Finally, Subsection (l) provides that the defendant’s exclusive remedy for a failure to test such evidence is a writ of habeas corpus to the Court of Criminal Appeals.

In re Luis Solis-Gonzalez, No. WR-82,831-01 is an opinion issued by the Court of Criminal Appeals on May 4, 2016 in response to a writ filed under Article 38.43 Subsection (l). In the underlying case out of El Paso County, Solis-Gonzalez was charged by indictment in August of 2012 for Capital Murder. The trial court ordered testing of the biological materials collected in the case. The DPS laboratory informed the court the testing would take until July of 2015. In a letter dated October 6, 2014, the trial court ordered the Defense to identify any necessary materials it believed the State failed to submit for testing and ordered the Defense to provide justification for that testing. Article 38.43 Subsection (j) requires the presumption for testing to favor the Defense, while the State has the opportunity to rebut that presumption. Despite this, the trial court ordered the defense to provide justification for continued testing.

At the hearing, the State asserted that it had tested over 200 samples, but argued that “testing every sample was unnecessary” and that the testing already “performed was sufficient.”  The focus of the hearing and the trial court’s ruling on the matter turned on whether Article 38.43 mandated the testing of every single piece of evidence seized by law enforcement in a death penalty case. The trial court issued a ruling that the prosecution had substantially complied with the statute and the Defense failed to submit the justification for why the evidence should be further tested.

The Court of Criminal Appeals did not address the presumption for testing imposed by the legislature. Instead, the Court of Criminal Appeals limited its ruling to whether the trial court had the discretion to make a ruling on when all biological evidence had been tested. Given the authority granted to the trial court under Subsection (i), the Court of Criminal Appeals ruled that the trial court had discretion to determine when the all the biological evidence had been tested.

For defense counsel moving forward, it will be important to ensure the trial court follows the mandates of Article 38.43 from the inception of the case through trial and to ensure the trial court begins with the presumption favoring testing of all biological evidence.

In re Luis Solis-Gonzalez, No. Wr-82,831-01

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